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UNITED STATES
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) May 1, 2000
------------------------------
ACT Networks, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 000-25740 77-0152144
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
26707 West Agoura Road, Calabasas, California 91302
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (818) 871-6400
-----------------------
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On May 1, 2000, we, Clarent Corporation and Copper Acquisition Sub,
Inc., a wholly owned subsidiary of Clarent ("Merger Sub"), entered into a
merger agreement.
Upon the terms and subject to the conditions in the merger agreement,
Merger Sub will be merged with and into us, and we will survive the merger as a
subsidiary of Clarent.
Upon completion of the merger, each share of our common stock which is
issued and outstanding immediately prior to completion of the merger (other than
shares held by us as treasury stock or owned by Clarent or any of its
subsidiaries) will be converted into the right to receive a fraction of a share
of Clarent common stock. The exact fraction of a share of Clarent common stock
will be determined based on the closing price of Clarent common stock on the
trading day immediately preceding the Closing Date.
Concurrent with the signing of the merger agreement, as an inducement
to Clarent's execution of the merger agreement, we entered into a stock option
agreement with Clarent, whereby we granted Clarent an option to purchase up to
19.9% of our outstanding common stock upon the occurrence of certain events.
Also on May 1, 2000, as a further inducement to Clarent's execution of
the merger agreement, certain of our officers and directors who own, in the
aggregate, 34,030 shares of our common stock and options to purchase 1,262,857
shares of our common stock, agreed to vote in favor of the merger.
The transaction, which is expected to close in the third quarter of
2000, has been approved by the board of directors of Clarent and by our board of
directors and is subject to, among other things, the adoption of the merger
agreement by our stockholders, the expiration of the waiting period under the
Hart-Scott-Rodino Antitrust Improvements Act and the effectiveness of a
registration statement covering Clarent's issuance of shares of common stock in
the merger.
The description of the transaction set forth above is qualified in its
entirety by reference to the merger agreement, stock option agreement and voting
agreement filed with this current report, copies of which are attached to this
current report as Exhibits 2.1, 4.1 and 10.1, respectively.
On May 1, 2000, we and Clarent issued a joint press release, a copy of
which is attached to this current report as Exhibit 99.1.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits.
2.1 Agreement and Plan of Merger and Reorganization, dated as of
May 1, 2000, among Clarent Corporation, Copper Acquisition
Sub, Inc. and ACT Networks, Inc.
4.1 Stock Option Agreement, dated as of May 1, 2000, by and
between ACT Networks, Inc. and Clarent Corporation.
10.1 Form of Voting Agreement, dated as of May 1, 2000, by and
between Clarent Corporation and certain officers and
directors of ACT Networks, Inc.(1)
99.1 Joint Press Release issued by Clarent and ACT Networks, Inc.
on May 1, 2000 (announcing execution of the Merger
Agreement).
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(1) A voting agreement was executed by each of the following officers and
directors: Andre de Fusco, David Weisman, Alain Gravel, Robert Faulk, Eric
Grubel, Ramin Sadr, William Ambrose, Arch McGill, Frederick Gluck and
Robert Musslewhite.
2
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SIGNATURES*
Pursuant to the requirements of the Securities Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
ACT Networks, Inc.
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(Registrant)
May 2, 2000 /s/ ROBERT J. FAULK
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Date Robert J. Faulk
Chief Financial Officer and
Vice President, Finance
3
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EXHIBIT INDEX
EXHIBIT
NUMBER DESCRIPTION
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2.1 Agreement and Plan of Merger and Reorganization, dated as of May
1, 2000, among Clarent Corporation, Copper Acquisition Sub, Inc.
and ACT Networks, Inc.
4.1 Stock Option Agreement, dated as of May 1, 2000, by and between
ACT Networks, Inc. and Clarent Corporation.
10.1 Form of Voting Agreement, dated as of May 1, 2000, by and
between Clarent Corporation and certain officers and directors
of ACT Networks, Inc.(1)
99.1 Joint Press Release issued by Clarent and ACT Networks, Inc. on
May 1, 2000 (announcing execution of the Merger Agreement).
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(1) A voting agreement was executed by each of the following officers and
directors: Andre de Fusco, David Weisman, Alain Gravel, Robert Faulk, Eric
Grubel, Ramin Sadr, William Ambrose, Arch McGill, Frederick Gluck and
Robert Musslewhite.
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EXHIBIT 2.1
================================================================================
AGREEMENT AND PLAN OF MERGER
AND
REORGANIZATION
AMONG
CLARENT CORPORATION,
A DELAWARE CORPORATION;
COPPER ACQUISITION SUB, INC.,
A DELAWARE CORPORATION;
AND
ACT NETWORKS, INC.,
A DELAWARE CORPORATION
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DATED AS OF MAY 1, 2000
---------------------------------
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TABLE OF CONTENTS
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SECTION 1. DESCRIPTION OF TRANSACTION ...................................................2
1.1 Merger of Merger Sub into the Company.........................................2
1.2 Closing; Effective Time.......................................................2
1.3 Effect of the Merger..........................................................2
1.4 Subsequent Action.............................................................2
1.5 Certificate of Incorporation and Bylaws; Directors and
Officers......................................................................2
1.6 Conversion of Shares..........................................................3
1.7 Stock Options.................................................................4
1.8 Closing of the Company's Transfer Books.......................................4
1.9 Exchange of Certificates......................................................4
1.10 Tax Consequences..............................................................6
1.11 Accounting Consequences.......................................................6
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ................................6
2.1 Due Organization; Subsidiaries; Etc...........................................6
2.2 Certificate of Incorporation and Bylaws.......................................7
2.3 Capitalization, Etc...........................................................7
2.4 SEC Filings; Financial Statements.............................................9
2.5 Absence of Changes...........................................................10
2.6 Leasehold; Real Property; Equipment..........................................11
2.7 Receivables; Customers.......................................................12
2.8 Proprietary Assets...........................................................12
2.9 Contracts....................................................................15
2.10 Sale of Products; Performance of Services....................................17
2.11 Liabilities..................................................................18
2.12 Compliance with Legal Requirements...........................................18
2.13 Certain Business Practices...................................................18
2.14 Governmental Authorizations..................................................19
2.15 Tax Matters..................................................................19
2.16 Employee and Labor Matters; Benefit Plans....................................20
2.17 Environmental Matters........................................................23
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2.18 Insurance....................................................................23
2.19 Transactions with Affiliates.................................................23
2.20 Legal Proceedings; Orders....................................................24
2.21 Authority; Inapplicability of Anti-takeover Statutes;
Binding Nature of Agreement..................................................24
2.22 Inapplicability of Section 2115 of California Corporations
Code.........................................................................25
2.23 Vote Required................................................................25
2.24 Non-Contravention; Consents..................................................25
2.25 Fairness Opinion.............................................................26
2.26 Financial Advisor............................................................26
2.27 Disclosure...................................................................26
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB .....................26
3.1 Organization, Standing and Power.............................................27
3.2 Capitalization, Etc..........................................................27
3.3 SEC Filings; Financial Statements............................................27
3.4 Disclosure...................................................................28
3.5 Authority; Binding Nature of Agreement.......................................28
3.6 Non-Contravention; Consents..................................................29
3.7 Absence of Changes...........................................................30
3.8 Financial Advisor............................................................30
3.9 Valid Issuance...............................................................30
SECTION 4. CERTAIN COVENANTS OF THE COMPANY ............................................30
4.1 Access and Investigation.....................................................30
4.2 Operation of the Company's Business..........................................31
4.3 No Solicitation..............................................................34
4.4 Company Stockholders' Meeting................................................36
4.5 Letter of the Company's Accountants..........................................37
SECTION 5. ADDITIONAL COVENANTS OF THE PARTIES .........................................37
5.1 Registration Statement; Proxy Statement/Prospectus...........................37
5.2 Regulatory Approvals.........................................................38
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5.3 Stock Options................................................................39
5.4 Form S-8.....................................................................41
5.5 Indemnification of Officers and Directors....................................41
5.6 Reorganization...............................................................41
5.7 Additional Agreements........................................................41
5.8 Confidentiality..............................................................42
5.9 Disclosure...................................................................42
5.10 Tax Matters..................................................................42
5.11 Nasdaq Listing...............................................................43
5.12 Access to Information........................................................43
5.13 Advice of Changes............................................................43
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB ................44
6.1 Accuracy of Representations..................................................44
6.2 Performance of Covenants.....................................................44
6.3 Effectiveness of Registration Statement......................................44
6.4 Stockholder Approval.........................................................44
6.5 Consents.....................................................................44
6.6 Agreements and Documents.....................................................45
6.7 No Material Adverse Effect...................................................45
6.8 HSR Act......................................................................45
6.9 Listing......................................................................45
6.10 No Restraints................................................................45
6.11 No Governmental Litigation...................................................45
SECTION 7. CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY ...........................46
7.1 Accuracy of Representations..................................................46
7.2 Performance of Covenants.....................................................46
7.3 Effectiveness of Registration Statement......................................46
7.4 Stockholder Approval.........................................................46
7.5 Agreements and Documents.....................................................47
7.6 HSR Act......................................................................47
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7.7 Listing......................................................................47
7.8 No Restraints................................................................47
SECTION 8. TERMINATION .................................................................47
8.1 Termination..................................................................47
8.2 Notice of Termination; Effect of Termination.................................49
8.3 Expenses; Termination Fees...................................................49
SECTION 9. MISCELLANEOUS PROVISIONS ....................................................49
9.1 Amendment....................................................................49
9.2 Waiver.......................................................................50
9.3 No Survival of Representations and Warranties................................50
9.4 Entire Agreement; No Third-Party Beneficiaries...............................50
9.6 Applicable Law; Jurisdiction.................................................50
9.7 Disclosure Letter............................................................51
9.8 Attorneys' Fees..............................................................51
9.9 Assignability................................................................51
9.10 Notices......................................................................51
9.11 Cooperation..................................................................52
9.12 Heading......................................................................52
9.13 Severability.................................................................52
9.14 Construction.................................................................53
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AGREEMENT AND PLAN
OF
MERGER AND REORGANIZATION
THIS AGREEMENT AND PLAN OF MERGER AND REORGANIZATION ("AGREEMENT") is
made and entered into as of May 1, 2000, by and among: CLARENT CORPORATION, a
Delaware corporation ("PARENT"); COPPER ACQUISITION SUB, INC., a Delaware
corporation and a wholly owned subsidiary of Parent ("MERGER SUB"); and ACT
NETWORKS, INC., a Delaware corporation (the "COMPANY"). Certain capitalized
terms used in this Agreement are defined in Exhibit A.
RECITALS
A. Parent, Merger Sub and the Company intend to effect a merger (the
"MERGER") of Merger Sub with and into the Company in accordance with this
Agreement and General Corporation Law of the State of Delaware, as amended (the
"DGCL"). Upon consummation of the Merger, Merger Sub will cease to exist, and
the Company will become a wholly owned subsidiary of Parent.
B. It is intended that the Merger qualify as a reorganization within the
meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the
"CODE"). For accounting purposes, it is intended that the Merger be treated as a
purchase.
C. The Board of Directors of the Company has (i) determined that the
Merger is consistent with and in furtherance of the long-term strategy of the
Company and fair to, and in the best interests of, the Company and its
stockholders, (ii) approved this Agreement, the Merger and the other
transactions contemplated by this Agreement and (iii) determined to recommend
that the stockholders of the Company adopt this Agreement.
D. The respective Boards of Directors of Parent and Merger Sub have
approved this Agreement and the Merger.
E. Concurrently with the execution of this Agreement, and as a condition
and inducement to Parent's willingness to enter into this Agreement, each of the
stockholders of the Company listed on Exhibit B hereto is entering into a voting
agreement substantially in the form attached hereto as Exhibit C ("VOTING
AGREEMENT").
F. Concurrently with the execution of this Agreement, and as a condition
and inducement to Parent's willingness to enter into this Agreement, each of the
Persons identified on Exhibit D hereto is entering into an affiliate agreement
substantially in the form attached hereto as Exhibit E ("AFFILIATE AGREEMENT").
G. Concurrently with the execution of this Agreement, and as a condition
and inducement to Parent's willingness to enter into this Agreement, the Company
is entering into a stock option agreement substantially in the form attached
hereto as Exhibit F ("STOCK OPTION AGREEMENT"), pursuant to which the Company
grant to Parent the right to purchase up to 19.9%
1.
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of the Company Common Stock on a primary basis prior to the Effective Time (as
defined hereunder).
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. DESCRIPTION OF TRANSACTION.
1.1 MERGER OF MERGER SUB INTO THE COMPANY. Upon the terms and subject to
the conditions set forth in this Agreement and the DGCL, at the Effective Time
(as defined in Section 1.2), Merger Sub shall be merged with and into the
Company, and the separate existence of Merger Sub shall cease. The Company will
continue as the surviving corporation in the Merger (the "SURVIVING
CORPORATION").
1.2 CLOSING; EFFECTIVE TIME. The consummation of the transactions
contemplated by this Agreement (the "CLOSING") shall take place at the offices
of Cooley Godward LLP, 3175 Hanover Street, Palo Alto, California, at 10:00 a.m.
on a date to be designated by Parent (the "CLOSING DATE"), which shall be no
later than the second business day after satisfaction or waiver of the
conditions set forth in Sections 6 and 7. Contemporaneously with or as promptly
as practicable after the Closing, a properly executed certificate of merger
conforming to the requirements of the DGCL shall be filed with the Secretary of
State of the State of Delaware (the date and time of such filing being the
"EFFECTIVE TIME").
1.3 EFFECT OF THE MERGER. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the DGCL. Without
limiting the generality of the foregoing, and subject thereto, at the Effective
Time all the property, rights, privileges, powers and franchises of the Company
and Merger Sub shall vest in the Surviving Corporation, and all debts,
liabilities and duties of the Company and Merger Sub shall become the debts,
liabilities and duties of the Surviving Corporation. As of the Effective Time,
the Surviving Corporation shall be a direct wholly owned subsidiary of Parent.
1.4 SUBSEQUENT ACTION. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances or any other actions or things are necessary or
desirable to vest, perfect or confirm of record or otherwise in the Surviving
Corporation its right, title or interest in, to or under any of the rights,
properties or assets of either of the Company or Merger Sub acquired or to be
acquired by the Surviving Corporation as a result of, or in connection with, the
Merger or otherwise to carry out this Agreement, the officers and directors of
the Surviving Corporation shall be authorized to execute and deliver, in the
name and on behalf of either the Company or Merger Sub, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name an on behalf of
each of such corporations or otherwise, all such other actions and things as may
be necessary or desirable to vest, perfect or confirm any and all right, title
and interest in, to and under such rights, properties or assets in the Surviving
Corporation or otherwise to carry out this Agreement.
1.5 CERTIFICATE OF INCORPORATION AND BYLAWS; DIRECTORS AND OFFICERS.
Unless otherwise determined by Parent prior to the Effective Time:
2.
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(a) the Certificate of Incorporation and Bylaws of the Surviving
Corporation shall be amended and restated as of the Effective Time to conform to
the Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws substantially in the form attached hereto as Exhibits G-1 and G-2,
respectively; and
(b) the directors and officers of the Surviving Corporation
immediately after the Effective Time shall be the directors and officers of
Merger Sub immediately prior to the Effective Time, until their respective
successors are elected and qualified or duly appointed, as the case may be.
1.6 CONVERSION OF SHARES.
(a) Subject to Section 1.6(d), at the Effective Time, by virtue
of the Merger and without any further action on the part of Parent, Merger Sub,
the Company or any stockholder of the Company:
(i) any shares of Company Common Stock then held by the
Company or any subsidiary of the Company (or held in the Company's treasury)
shall be canceled and retired and shall cease to exist, and no consideration
shall be delivered in exchange therefor;
(ii) any shares of Company Common Stock then held by
Parent, Merger Sub or any other subsidiary of Parent shall be canceled and shall
cease to exist, and no consideration shall be delivered in exchange therefor;
(iii) except as provided in clauses "(i)" and "(ii)"
above and subject to Sections 1.6(b) and 1.6(d), each share of Company Common
Stock then outstanding shall be converted into the right to receive that
fraction of a share of Parent Common Stock equal to the Exchange Ratio. The
"EXCHANGE RATIO" shall be 0.2546 (the "INITIAL FRACTION"); provided, however,
that:
(1) if the result of the multiplication of the
Initial Fraction by the Closing Price is greater than $18.00 per share, then the
Exchange Ratio shall be the fraction (calculated to four decimal places) having
a numerator equal to $18.00 and a denominator equal to the Closing Price; or
(2) if the result of the multiplication of the
Initial Fraction by the Closing Price is less than $14.00 per share, then the
Exchange Ratio shall be the fraction (calculated to four decimal places) having
a numerator equal to $14.00 and a denominator equal to the Closing Price.
(iv) each share of the common stock, $.001 par value per
share, of Merger Sub then outstanding shall be converted into one share of
common stock, $.001 par value per share, of the Surviving Corporation.
(b) If, between the date of this Agreement and the Effective
Time, the outstanding shares of Company Common Stock or Parent Common Stock are
changed into a different number or class of shares by reason of any stock split,
division or subdivision of shares, stock dividend, reverse stock split,
reclassification, recapitalization or other similar transaction,
3.
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then the Exchange Ratio shall be appropriately adjusted to reflect the economic
effects intended by Section 1.6(a).
(c) If any shares of Company Common Stock outstanding
immediately prior to the Effective Time are unvested or are subject to a
repurchase option, risk of forfeiture or other condition under any applicable
restricted stock purchase agreement or other agreement with the Company or under
which the Company has any rights, then the shares of Parent Common Stock issued
in exchange for such shares of Company Common Stock will also be unvested and
subject to the same repurchase option, risk of forfeiture or other condition,
and the certificates representing such shares of Parent Common Stock may
accordingly be marked with appropriate legends. The Company shall take all
action that may be necessary to ensure that, from and after the Effective Time,
Parent is entitled to exercise any such repurchase option or other right set
forth in any such restricted stock purchase agreement or other agreement.
(d) No fractional shares of Parent Common Stock shall be issued
in connection with the Merger, and no certificates for any such fractional
shares shall be issued. In lieu of such fractional shares, any holder of Company
Common Stock who would otherwise be entitled to receive a fraction of a share of
Parent Common Stock (after aggregating all fractional shares of Parent Common
Stock issuable to such holder) shall, upon surrender of such holder's Company
Stock Certificate(s) (as defined in Section 1.8), be paid in cash the dollar
amount (rounded to the nearest whole cent), without interest, determined by
multiplying such fraction by the 4:00 p.m. (Eastern Time) closing price of a
share of Parent Common Stock as reported on Nasdaq on the Effective Date.
1.7 STOCK OPTIONS. At the Effective Time, all Company Options (as
defined in Section 2.3(b)) shall be assumed by Parent in accordance with Section
5.3.
1.8 CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Effective Time: (a)
all shares of Company Common Stock outstanding immediately prior to the
Effective Time shall automatically be canceled and retired and shall cease to
exist, and all holders of certificates representing shares of Company Common
Stock that were outstanding immediately prior to the Effective Time shall cease
to have any rights as stockholders of the Company; and (b) the stock transfer
books of the Company shall be closed at the close of business on the day during
which the Effective Time occurs. No further transfer of any such shares of
Company Common Stock shall be made on such stock transfer books after such date
and time. If, after the Effective Time, a valid certificate previously
representing any of such shares of Company Common Stock (a "COMPANY STOCK
CERTIFICATE") is presented to the Exchange Agent (as defined in Section 1.9), to
the Surviving Corporation or to Parent, such Company Stock Certificate shall be
canceled and shall be exchanged as provided in Section 1.9.
1.9 EXCHANGE OF CERTIFICATES.
(a) On or prior to the Closing Date, Parent shall select a
reputable bank or trust company reasonably acceptable to the Company to act as
exchange agent in the Merger (the "EXCHANGE AGENT"). Promptly after the
Effective Time, Parent shall deposit with the Exchange Agent (i) certificates
representing the shares of Parent Common Stock issuable pursuant to this Section
1 and (ii) cash sufficient to make payments in lieu of fractional shares in
accordance with
4.
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Section 1.6(d). The shares of Parent Common Stock and cash amounts so deposited
with the Exchange Agent, together with any dividends or distributions received
by the Exchange Agent with respect to such shares, are referred to collectively
as the "EXCHANGE FUND."
(b) As soon as reasonably practicable after the Effective Time,
the Exchange Agent will mail to the registered holders of Company Stock
Certificates (i) a letter of transmittal in customary form and containing such
provisions as Parent and the Company shall reasonably agree upon (including a
provision confirming that delivery of Company Stock Certificates shall be
effected, and risk of loss and title to Company Stock Certificates shall pass,
only upon delivery of such Company Stock Certificates to the Exchange Agent),
and (ii) instructions for use in effecting the surrender of Company Stock
Certificates in exchange for certificates representing Parent Common Stock.
Subject to Section 1.6(d), upon surrender of a Company Stock Certificate to the
Exchange Agent for exchange, together with a duly executed letter of transmittal
and such other documents as are customarily required by the Exchange Agent, (A)
the holder of such Company Stock Certificate shall be entitled to receive in
exchange therefor a certificate representing the number of shares of Parent
Common Stock that such holder has the right to receive pursuant to the
provisions of Section 1.6(a)(iii) together with any cash in lieu of fractional
share(s) pursuant to the provisions of Section 1.6(d), and (B) the Company Stock
Certificate so surrendered shall be canceled. Until surrendered as contemplated
by this Section 1.9(b), each Company Stock Certificate shall be deemed, from and
after the Effective Time, to represent only the right to receive shares of
Parent Common Stock (and cash in lieu of any fractional share of Parent Common
Stock) as contemplated by Section 1.6. If any Company Stock Certificate shall
have been lost, stolen or destroyed, Parent may, in its discretion and as a
condition precedent to the issuance of any certificate representing Parent
Common Stock, require the owner of such lost, stolen or destroyed Company Stock
Certificate to provide an appropriate affidavit and to deliver a bond (in such
sum as Parent may reasonably direct) as indemnity against any claim that may be
made against the Exchange Agent, Parent or the Surviving Corporation with
respect to such Company Stock Certificate.
(c) Notwithstanding anything to the contrary contained in this
Agreement, no shares of Parent Common Stock (or certificates therefor) shall be
issued in exchange for any Company Stock Certificate to any Person who may be an
"affiliate" (as that term is used in Rule 145 under the Securities Act) of the
Company ("AFFILIATE") until such Person shall have delivered to Parent and the
Company a duly executed Affiliate Agreement as contemplated by Section 6.6(a).
(d) No dividends or other distributions declared or made with
respect to Parent Common Stock with a record date after the Effective Time shall
be paid to the holder of any unsurrendered Company Stock Certificate with
respect to the shares of Parent Common Stock represented thereby, until such
holder surrenders such Company Stock Certificate in accordance with this Section
1.9 (at which time such holder shall be entitled, subject to the effect of
applicable escheat or similar laws, to receive all such dividends and
distributions, without interest).
(e) Any portion of the Exchange Fund that remains undistributed
to holders of Company Stock Certificates as of the date one hundred and eighty
(180) days after the date during which the Effective Time occurs shall be
delivered to Parent upon demand, and any
5.
<PAGE> 11
holders of Company Stock Certificates who have not theretofore surrendered their
Company Stock Certificates in accordance with this Section 1.9 shall thereafter
look only to Parent for satisfaction of their claims for Parent Common Stock,
cash in lieu of fractional shares of Parent Common Stock and any dividends or
distributions with respect to Parent Common Stock.
(f) Each of the Exchange Agent, Parent and the Surviving
Corporation shall be entitled to deduct and withhold from any consideration
payable or otherwise deliverable pursuant to this Agreement to any holder or
former holder of Company Common Stock such amounts as may be required to be
deducted or withheld therefrom under the Code or under any provision of state,
local or foreign tax law or under any other applicable Legal Requirement. To the
extent such amounts are so deducted or withheld, such amounts shall be treated
for all purposes under this Agreement as having been paid to the Person to whom
such amounts would otherwise have been paid.
(g) Neither Parent nor the Surviving Corporation shall be liable
to any holder or former holder of Company Common Stock or to any other Person
with respect to any shares of Parent Common Stock (or dividends or distributions
with respect thereto), or for any cash amounts, delivered to any public official
pursuant to any applicable abandoned property, escheat or similar Legal
Requirement.
1.10 TAX CONSEQUENCES. For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section 368 of the
Code. The parties to this Agreement hereby adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Treasury Regulations.
1.11 ACCOUNTING CONSEQUENCES. For accounting purposes, the Merger is
intended to be treated as a purchase.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the disclosure letter that has been prepared by
the Company in accordance with the requirements of Section 9.7 and that has been
delivered by the Company to Parent on the date of this Agreement and signed by
the President of the Company (the "COMPANY DISCLOSURE LETTER"), the Company
hereby represents and warrants to Parent and Merger Sub as follows:
2.1 DUE ORGANIZATION; SUBSIDIARIES; ETC.
(a) The Company has no Subsidiaries, except for the Entities
identified in Exhibit 21.1 to the Company's Annual Report on Form 10-K for the
fiscal year ended June 30, 1999 or in Part 2.1(a) of the Company Disclosure
Letter; and neither the Company nor any of the other Entities identified in Part
2.1(a) of the Company Disclosure Letter owns any capital stock of, or any equity
interest of any nature in, any other Entity, other than short term investments
and memberships in trade groups. (The Company and each of its Subsidiaries are
referred to collectively in this Agreement as the "ACQUIRED COMPANIES.") None of
the Acquired Companies has agreed or is obligated to make, or is bound by any
Contract under which it may become obligated to make, any future investment in
or capital contribution to any other Entity.
6.
<PAGE> 12
None of the Acquired Companies has, at any time, been a general partner of any
general partnership, limited partnership or other entity.
(b) Except as set forth in Part 2.1(a) of the Company Disclosure
Letter, each of the Acquired Companies is a corporation or other Entity duly
organized, validly existing and in good standing (in jurisdiction that recognize
such concept) under the laws of the jurisdiction of its organization and has all
requisite power and authority and any necessary governmental authority,
franchise, license, certificate or permit: (i) to conduct its business in the
manner in which its business is currently being conducted; (ii) to own and use
its assets in the manner in which its assets are currently owned and used; and
(iii) to perform its obligations under all Acquired Company Contracts, except
where the failure to be so organized, existing and in good standing or to have
such power and authority has not had and would not reasonably be expected to
have a Material Adverse Effect on the Acquired Companies.
(c) Each of the Acquired Companies is qualified to do business
as a foreign Entity, and is in good standing (in jurisdictions that recognize
such concept), under the laws of all jurisdictions where the nature of its
business requires such qualification, except where the failure to be so
qualified has not had and would not reasonably be expected to have a Material
Adverse Effect on the Acquired Companies.
2.2 CERTIFICATE OF INCORPORATION AND BYLAWS. The Company has delivered
to Parent accurate and complete copies of the certificate of incorporation,
bylaws and other charter and organizational documents of the respective Acquired
Companies, including all amendments thereto. None of the Acquired Companies is
in violation of any of the provisions of its articles of incorporation or bylaws
or equivalent governing instruments.
2.3 CAPITALIZATION, ETC.
(a) The authorized capital stock of the Company consists of
40,000,000 shares of Company Common Stock, of which, as of March 31, 2000,
10,482,963 shares (which amount does not materially differ from the amount
issued and outstanding as of the date of this Agreement) have been issued and
are outstanding. The Company does not have any shares of preferred stock
authorized. As of March 31, 2000, there were 88,363 shares of Company Common
Stock available for purchase pursuant to the Company's Employee Stock Purchase
Plan. All of the outstanding shares of Company Common Stock have been duly
authorized and validly issued, and are fully paid and nonassessable. As of March
31, 2000, there were no shares of Company Common Stock held in treasury by the
Company and no shares of stock held in treasury by any of the other Acquired
Companies. Except as set forth in Part 2.3(a)(ii) of the Company Disclosure
Letter, (i) none of the outstanding shares of Company Common Stock is entitled
or subject to any preemptive right or any similar right; (ii) none of the
outstanding shares of Company Common Stock is subject to any right of first
refusal in favor of the Company; and (iii) there is no Acquired Company Contract
relating to the voting or registration of, or restricting any Person from
purchasing, selling, pledging or otherwise disposing of (or granting any option
or similar right with respect to), any shares of Company Common Stock. Upon
consummation of the Merger, (A) the shares of Parent Common Stock issued in
exchange for any shares of Company Common Stock that are subject to a Contract
pursuant to which the Company has the right to repurchase, redeem or otherwise
reacquire any shares of Company Common Stock will,
7.
<PAGE> 13
without any further act of Parent, the Company or any other Person, become
subject to the restrictions, conditions and other provisions contained in such
Contract, and (B) Parent will automatically succeed to and become entitled to
exercise the Company's rights and remedies under any such Contract. Except as
set forth in Part 2.3(a)(ii) of the Company Disclosure Letter, none of the
Acquired Companies is under any obligation to repurchase, redeem or otherwise
acquire any outstanding shares of Company Common Stock.
(b) As of March 31, 2000, 2,839,491 shares (which amount does
not materially differ from the amount subject to options outstanding as of the
date of this Agreement) of Company Common Stock were subject to issuance
pursuant to outstanding options to purchase Company Common Stock. (Options to
purchase shares of Company Common Stock (whether granted by the Company pursuant
to the Company's stock option plans, assumed by the Company in connection with
any merger, acquisition or similar transaction or otherwise issued or granted)
are referred to in this Agreement as "COMPANY OPTIONS"). Part 2.3(b) of the
Company Disclosure Letter sets forth the following information with respect to
each Company Option outstanding as of March 31, 2000: (i) the particular plan
pursuant to which such Company Option was granted; (ii) the name of the
optionee; (iii) the number of shares of Company Common Stock subject to such
Company Option; (iv) the exercise price of such Company Option; (v) the date on
which such Company Option was granted; (vi) the applicable vesting schedule and
the extent to which such Company Option is vested and exercisable as of the date
of this Agreement; and (vii) the date on which such Company Option expires. The
Company has delivered to Parent accurate and complete copies of all stock option
plans pursuant to which the Company has ever granted stock options and the form
of all stock option agreements evidencing such options. There are no commitments
or agreements of any character to which the Company is bound obligating the
Company to accelerate the vesting of any Company Option, except that each
outstanding Company Option held by an optionee will vest and become exercisable
for all the option shares on an accelerated basis should an Involuntary
Termination (as such term is defined in the applicable stock option agreement
for each such Company Option) of that optionee's service with the Surviving
Corporation occur within eighteen months after the Effective Time.
(c) Except as set forth in Part 2.3(c) of the Company Disclosure
Letter, there is no: (i) outstanding subscription, option, call, warrant or
right (whether or not currently exercisable) to acquire any shares of the
capital stock or other securities of any of the Acquired Companies; (ii)
outstanding security, instrument or obligation that is or may become convertible
into or exchangeable for any shares of the capital stock or other securities any
of the Acquired Companies; (iii) stockholder rights plan (or similar plan
commonly referred to as a "poison pill") or Contract under which any of the
Acquired Companies is or may become obligated to sell or otherwise issue any
shares of its capital stock or any other securities; or (iv) condition or
circumstance that would reasonably be expected to give rise to or provide a
basis for the assertion of a claim by any Person to the effect that such Person
is entitled to acquire or receive any shares of capital stock or other
securities of any of the Acquired Companies.
(d) All outstanding shares of Company Common Stock, all
outstanding Company Options and all outstanding shares of capital stock of each
Subsidiary of the Company have been issued and granted in compliance with (i)
all applicable securities laws and other applicable Legal Requirements, and (ii)
all requirements set forth in applicable Acquired
8.
<PAGE> 14
Company Contracts, except where the failure to be issued or granted in
compliance therewith has not had and would not reasonably be expected to have a
Material Adverse Effect on the Acquired Companies.
(e) All of the outstanding shares of capital stock of each of
the Entities identified in Exhibit 21.1 to the Company's Annual Report on Form
10-K for the fiscal year ended June 30, 1999 and in Part 2.1(a) of the Company
Disclosure Letter are validly issued, fully paid and nonassessable and are owned
beneficially and of record by the Company, free and clear of any Encumbrances.
2.4 SEC FILINGS; FINANCIAL STATEMENTS.
(a) The Company has delivered or made available to Parent
accurate and complete copies of all registration statements, proxy statements
and other statements, reports, schedules, forms and other documents filed by the
Company with the SEC since January 1, 1999, and all amendments thereto
(collectively, with all information incorporated by reference therein or deemed
to be incorporated by reference therein, the "COMPANY SEC DOCUMENTS"). All such
statements, reports, schedules, forms and other documents required to have been
filed by the Company with the SEC have been so filed on a timely basis. As of
the time it was filed with the SEC (or, if amended or superseded by a filing
prior to the date of this Agreement, then on the date of such filing): (i) each
of the Company SEC Documents complied in all material respects with the
applicable requirements of the Securities Act or the Exchange Act; and (ii) none
of the Company SEC Documents contained any untrue statement of material fact or
omitted to state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading.
(b) The consolidated financial statements (including any related
notes and schedules) contained in the Company SEC Documents (the "COMPANY
FINANCIAL STATEMENTS"): (i) complied as to form in all material respects with
the published rules and regulations of the SEC applicable thereto; (ii) were
prepared in accordance with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods covered (except for changes
in accounting principles disclosed in the notes to such financial statements or,
in the case of unaudited statements, as permitted by Form 10-Q of the SEC, and
except that the unaudited financial statements may not contain footnotes and are
subject to normal and recurring year-end adjustments that will not, individually
or in the aggregate, be material in amount), and (iii) fairly present, in all
material respects, the consolidated financial position of the Company and its
consolidated subsidiaries as of the respective dates thereof and the
consolidated results of operations of the Company and its consolidated
subsidiaries for the periods covered thereby. All adjustments considered
necessary for a fair presentation of the financial statements have been
included. All financial statements (including all related notes and schedules)
contained in Company SEC Documents filed after the date hereof shall meet the
conditions set forth in (i), (ii) and (iii) of this Section 2.4(b).
9.
<PAGE> 15
2.5 ABSENCE OF CHANGES. Except as set forth in Part 2.5 of the Company
Disclosure Letter, between December 31, 1999 and the date of this Agreement:
(a) there has not been any Material Adverse Effect on the
Acquired Companies;
(b) there has not been any material loss, damage or destruction
to, or any material interruption in the use of, any of the assets of any of the
Acquired Companies (whether or not covered by insurance) that has had or would
reasonably be expected to have a Material Adverse Effect on the Acquired
Companies;
(c) none of the Acquired Companies has (i) declared, accrued,
set aside or paid any dividend or made any other distribution in respect of any
shares of capital stock, or (ii) repurchased, redeemed or otherwise reacquired
any shares of capital stock or other securities;
(d) none of the Acquired Companies has sold, issued or granted,
or authorized the issuance or grant of (i) any capital stock or other security
(except for Company Common Stock issued upon the valid exercise of outstanding
Company Options), (ii) any option, warrant or right to acquire any capital stock
or any other security, or (iii) any instrument convertible into or exchangeable
for any capital stock or other security;
(e) the Company has not amended or waived any of its rights
under, or permitted the acceleration of vesting under, (i) any provision of any
of the Company's stock option plans, (ii) any provision of any Contract
evidencing any outstanding Company Option or Company Warrant, or (iii) any
restricted stock purchase agreement;
(f) there has been no amendment to the certificate of
incorporation, bylaws or other charter or organizational documents of any of the
Acquired Companies, and none of the Acquired Companies has effected or been a
party to any merger, consolidation, share exchange, business combination,
recapitalization, reclassification of shares, stock split, reverse stock split
or similar transaction;
(g) none of the Acquired Companies has made any capital
expenditure which, when added to all other capital expenditures made on behalf
of the Acquired Companies between December 31, 1999 and the date of this
Agreement, exceeds $500,000 in the aggregate;
(h) except in the ordinary course of business and consistent
with past practices, none of the Acquired Companies has amended or prematurely
terminated, or waived any material right or remedy under, any Material Contract
(as defined in Section 2.9);
(i) none of the Acquired Companies has (i) acquired, leased or
licensed any material right or other material asset from any other Person, (ii)
sold or otherwise disposed of, or leased or licensed, any material right or
other material asset to any other Person, or (iii) waived or relinquished any
right, except for rights or other assets acquired, leased, licensed, sold or
disposed of, or rights waived or relinquished, in the ordinary course of
business and consistent with past practices;
10.
<PAGE> 16
(j) none of the Acquired Companies has written off as
uncollectible, or established any extraordinary reserve with respect to, any
account receivable or other indebtedness in excess of $25,000;
(k) none of the Acquired Companies has made any pledge of any of
its assets or otherwise permitted any of its assets to become subject to any
Encumbrance, except for pledges of made in the ordinary course of business and
consistent with past practices;
(l) none of the Acquired Companies has (i) lent in excess of
$50,000 to any Person, or (ii) incurred or guaranteed any indebtedness for
borrowed money in excess of $200,000;
(m) none of the Acquired Companies has (i) established, adopted
or entered into any Plan (as defined in Section 2.16(a)), (ii) caused or
permitted any Plan to be amended in any material respect, or (iii) paid any
bonus or made any profit-sharing or similar payment to, or materially increased
the amount of the wages, salary, commissions, fringe benefits or other
compensation or remuneration payable to, any of its directors, officers or
employees;
(n) none of the Acquired Companies has changed any of its
methods of accounting or accounting practices in any material respect other than
as required by GAAP;
(o) none of the Acquired Companies has made any material Tax
election;
(p) none of the Acquired Companies has commenced or settled any
material Legal Proceeding;
(q) none of the Acquired Companies has entered into any material
transaction or taken any other material action that has had, or would reasonably
be expected to have, a Material Adverse Effect on the Acquired Companies;
(r) none of the Acquired Companies has entered into any material
transaction or taken any other material action outside the ordinary course of
business or inconsistent with past practices; and
(s) none of the Acquired Companies has agreed or committed to
take any of the actions referred to in clauses "(c)" through "(r)" above.
2.6 LEASEHOLD; REAL PROPERTY; EQUIPMENT. None of the Acquired Companies
own any real property or any interest in real property, except for the
leaseholds created under the real property leases identified in Part 2.6 of the
Company Disclosure Letter. All such real property is being leased pursuant to
lease agreements that are in full force and effect, are valid and effective in
accordance with their respective terms, and there is not, under any of such
leases, any existing default or event of default (or event which with notice or
lapse of time, or both, would constitute a default) that would result in a
Material Adverse Effect on the Acquired Companies. As of the date of this
Agreement, all material items of equipment and other material tangible assets
owned by or leased to the Acquired Companies are adequate for the uses to which
they are being put, are in good and safe condition and repair (ordinary wear and
tear excepted) and are adequate
11.
<PAGE> 17
for the conduct of the business of the Acquired Companies in the manner in which
such business is currently being conducted.
2.7 RECEIVABLES; CUSTOMERS.
(a) Part 2.7(a) of the Company Disclosure Letter provides an
accurate and complete breakdown and aging of all accounts receivable of the
Acquired Companies in excess of $250,000 in any individual case as of the date
of the Company Unaudited Interim Balance Sheet. All accounts receivable of the
Acquired Companies in excess of $250,000 in any individual case (including such
accounts receivable reflected on the Company Unaudited Interim Balance Sheet
that have not yet been collected and such accounts receivable that have arisen
since the date of the Company Unaudited Interim Balance Sheet and have not yet
been collected) (i) represent valid obligations of customers of the Acquired
Companies arising from bona fide transactions entered into in the ordinary
course of business, (ii) except as set forth in the Company's aging of accounts
receivable previously provided to Parent, are current and will be collected in
full when due, without any counterclaim or set off and are not subject to any
dispute or threat of nonpayment (net of the allowance for doubtful accounts set
forth on the Company Unaudited Interim Balance Sheet and an additional amount
not to exceed $1,000,000 in the aggregate) and (iii) except as set forth in Part
2.7(a)(iii) of the Company Disclosure Letter, represent revenues that have been
recognized in accordance with GAAP.
(b) As of the date of this Agreement, there are no loans or
advances in excess of $50,000 made by any of the Acquired Companies to any
employee, director, consultant or independent contract of such Acquired Company,
other than routine travel or relocation advances made to employees in the
ordinary course of business.
(c) Part 2.7(c) of the Company Disclosure Letter accurately
identifies, and provides an accurate and complete breakdown of the revenues
received from, each customer or other Person that accounted for (a) more than
$400,000 of the consolidated gross revenues of the Acquired Companies in the
fiscal year ended 1999, or (b) more than $100,000 of the consolidated gross
revenues of the Acquired Companies in the fiscal quarter ended March 31, 2000.
Since December 31, 1999, the Company has not received any notice or other
written communication, and has not received any other information, indicating
that any customer or other Person identified in Part 2.7 of the Company
Disclosure Letter will cease dealing with the Company or will otherwise reduce
the volume of business transacted by such Person with the Company materially
below historical levels. Since December 31, 1999, the Company has not received
any material customer complaints concerning its material products and/or its
services.
2.8 PROPRIETARY ASSETS.
(a) Part 2.8(a)(i) of the Company Disclosure Letter sets forth,
with respect to each Acquired Company Proprietary Asset owned by the Acquired
Companies and registered with any Governmental Body or for which an application
for registration has been filed with any Governmental Body, (i) a brief
description of such Acquired Company Proprietary Asset, and (ii) the names of
the jurisdictions covered by the applicable registration or application. Part
2.8(a)(ii) of the Company Disclosure Letter identifies and provides a brief
description of all other Proprietary Assets owned by the Acquired Companies that
are material to the business of the
12.
<PAGE> 18
Acquired Companies. Part 2.8(a)(iii) of the Company Disclosure Letter identifies
and provides a brief description of, and identifies any ongoing royalty or
payment obligations in excess of $100,000 with respect to, each Acquired Company
Proprietary Asset that is licensed or otherwise made available to the Acquired
Companies by any Person and is material to the business of the Acquired
Companies (except for any Proprietary Asset that is licensed to the Acquired
Companies under any third party software license generally available to the
public), and identifies the Contract under which such Acquired Company
Proprietary Asset is being licensed or otherwise made available to such Acquired
Company. The Acquired Companies have good and valid title to all of the Acquired
Company Proprietary Assets identified in Parts 2.8(a)(i) and 2.8(a)(ii) of the
Company Disclosure Letter, free and clear of all Encumbrances, except for (i)
any lien for current taxes not yet due and payable, and (ii) minor liens that
have arisen in the ordinary course of business and that do not (individually or
in the aggregate) materially detract from the value of the assets subject
thereto or materially impair the operations of any of the Acquired Companies.
The Acquired Companies have a valid right to use, license and otherwise exploit
all Acquired Company Proprietary Assets identified in Part 2.8(a)(iii) of the
Company Disclosure Letter, subject to the limitations and restrictions expressly
set forth in the applicable Contract pursuant to which such Proprietary Assets
are being licensed or otherwise made available to the Acquired Companies. None
of the Acquired Companies has developed jointly with any other Person any
Acquired Company Proprietary Asset that is material to the business of the
Acquired Companies with respect to which such other Person has any rights.
Except as set forth in Part 2.8(a)(iv) of the Company Disclosure Letter, there
is no Acquired Company Contract (with the exception of license agreements in the
form previously delivered by the Company to Parent) pursuant to which any Person
has any right (whether or not currently exercisable) to use, license or
otherwise exploit any Acquired Company Proprietary Asset.
(b) The Acquired Companies have taken reasonable measures and
precautions to protect and maintain the confidentiality, secrecy and value of
all Acquired Company Proprietary Assets (except Acquired Company Proprietary
Assets whose value would be unimpaired by disclosure). No current or former
employee, officer, director, stockholder, consultant or independent contractor
has any right, claim or interest in or with respect to any Acquired Company
Proprietary Asset.
(c) To the knowledge of the Company: (i) all patents,
trademarks, service marks and copyrights held by any of the Acquired Companies
are valid, enforceable and subsisting; (ii) none of the Acquired Company
Proprietary Assets and no Proprietary Asset that is currently being developed by
any of the Acquired Companies (either by itself or with any other Person)
infringes, misappropriates or violates any Proprietary Asset owned by any other
Person; (iii) except as set forth in Part 2.8(c)(iii) of the Company Disclosure
Letter, none of the products that are or have been designed, created, developed,
assembled, manufactured or sold by any of the Acquired Companies is infringing,
misappropriating or making any unlawful or unauthorized use of any Proprietary
Asset owned by any other Person, and none of such products has at any time
infringed, misappropriated or made any unlawful or unauthorized use of, and none
of the Acquired Companies has received any notice or written communication of
any actual or alleged infringement, misappropriation or unlawful or unauthorized
use of, any Proprietary Asset owned or used by any other Person; (iv) no other
Person is infringing, misappropriating or making any unlawful or unauthorized
use of, and no Proprietary Asset owned or used by any other Person infringes or
violates, any Acquired Company Proprietary Asset.
13.
<PAGE> 19
(d) To the knowledge of the Company, each material product,
system, program or other asset designed, developed, manufactured, assembled,
sold, installed, repaired, licensed or otherwise made available by any Acquired
Company to any Person conforms with any applicable specification or user
documentation made or provided with respect thereto by or on behalf of the
Acquired Company, except (i) where the failure to conform has not had and would
not reasonably be expected to have a Material Adverse Effect on the Acquired
Companies and (ii) to the extent that any nonconformance does not result in
liabilities in excess of the reserves set forth in the Unaudited Interim Balance
Sheet or accrued after the date of the Unaudited Interim Balance Sheet in the
ordinary course of business consistent with past practices. Except as set forth
in Part 2.8(d) of the Company Disclosure Letter, there has not been any claim by
any customer or other Person alleging that any Acquired Company Proprietary
Asset (including each version thereof that has ever been licensed or otherwise
made available by the Acquired Company to any Person) does not conform in all
material respects with any specification, documentation, performance standard,
representation or statement made or provided by or on behalf of the Acquired
Company.
(e) The Acquired Company Proprietary Assets constitute all the
Proprietary Assets necessary to enable the Acquired Companies to conduct their
business in the manner in which such business has been and is being conducted.
None of the Acquired Companies has (i) licensed any of the Acquired Company
Proprietary Assets to any Person on an exclusive basis, or (ii) except as set
forth in Part 2.8(e)of the Company Disclosure Letter, entered into any covenant
not to compete or Contract limiting its ability to exploit fully any Acquired
Company Proprietary Assets or to transact business in any market or geographical
area or with any Person.
(f) All employees set forth in Part 2.8(f) of the Company
Disclosure Letter have executed and delivered an agreement to the Company
(containing no exceptions to or exclusions from the scope of its coverage) that
is substantially identical to the form of Employment Agreement or Employee
Agreement previously delivered to Parent by the Company. Substantially all other
current and substantially all former employees of the Company have executed and
delivered to the Company an agreement (containing no exceptions to or exclusions
from the scope of its coverage) that is substantially identical to the form of
confidential information and invention assignment agreement previously delivered
to Parent. Substantially all current and former consultants and independent
contractors to the Company have executed and delivered to the Company an
agreement (containing no exceptions to or exclusions from the scope of its
coverage) that is substantially identical to the form of consultant confidential
information and invention assignment agreement previously delivered to Parent.
(g) Except as set forth in Part 2.8(g) of the Company Disclosure
Letter, to the knowledge of the Company, each of the Acquired Companies has
taken adequate steps to ensure that all software (and related Proprietary
Assets) owned or used by any of the Acquired Companies is Year 2000 Compliant
(as defined below). For purposes of this Agreement, an item of software (and
related Proprietary Assets) are deemed to be "Year 2000 Compliant" only if (i)
the functions, calculations, and other computing processes of such software (and
related Proprietary Assets) perform in a consistent and correct manner without
interruption regardless of the date on which such functions, calculations or
other processes are actually performed and regardless of the date input to the
applicable computer system, whether before, on, or after January 1, 2000; (ii)
such software (and related Proprietary Assets) accept and respond to year
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<PAGE> 20
input, if any, in a manner that resolves any ambiguities as to century in a
defined, predetermined, and appropriate manner; and (iii) such software (and
related Proprietary Assets) determine leap years by the following standard: (A)
if dividing the year by 4 yields an integer, it is a leap year, except for years
ending in 00; but (B) a year ending in 00 is a leap year if dividing it by 400
yields an integer.
2.9 CONTRACTS.
(a) Part 2.9 of the Company Disclosure Letter identifies each
Acquired Company Contract in effect as of the date of this Agreement that
constitutes a "Material Contract." For purposes of this Agreement, each of the
following shall be deemed to constitute a "MATERIAL CONTRACT":
(i) (A) any Contract or outstanding offer relating to
the employment of, or the performance of services by, any employee (other than
Contracts that (1) provide for "at will" employment and (2) do not provide for
severance, termination or similar benefits or acceleration of stock options
other than in accordance with the terms of the Company's stock option plans and
severance plans previously provided to Parent), and (B) any Contract pursuant to
which any of the Acquired Companies is required to make any severance,
termination or similar payment to any current or former employee or director of
any of the Acquired Companies, other than in accordance with the terms of the
Company's stock option plans and severance plans previously provided to Parent;
(ii) any Contract (A) relating to the acquisition,
transfer, development, sharing or license of any Proprietary Asset (except for
any Contract pursuant to which (1) any Proprietary Asset is licensed to the
Acquired Companies under any third party software license generally available to
the public, or (2) any Proprietary Asset is licensed by any of the Acquired
Companies to any Person on a non-exclusive basis), or (B) pursuant to which any
Acquired Company Proprietary Asset has been licensed or otherwise made available
to any Person that constitutes one of the top 20 customers (based on revenues)
of the Acquired Companies during the fiscal year ended June 30, 1999 or during
the six months ended December 31, 1999;
(iii) any Contract which provides for indemnification of
any officer, director, employee or agent of any of the Acquired Companies;
(iv) any Contract imposing any restriction on the right
or ability of any Acquired Company (A) to compete in any market or geographic
area with any other Person, (B) to acquire any product or other asset or any
services from any other Person, (C) to solicit, hire or retain any Person as an
employee, consultant or independent contractor, (D) to develop, sell, supply,
distribute, offer, support or service any product or any technology or other
asset to or for any other Person, (E) to perform services for any other Person,
or (F) to transact business or deal in any other manner with any other Person;
(v) any Contract (A) relating to the acquisition,
issuance, voting, registration, sale or transfer of any securities (other than
Company Options or Company Warrants outstanding as of the date of this
Agreement), (B) providing any Person with any preemptive right, right of
participation, right of maintenance or any similar right with respect to
15.
<PAGE> 21
any securities, or (C) providing the Company with any right of first refusal
with respect to, or right to repurchase or redeem, any securities;
(vi) any Contract requiring that any of the Acquired
Companies give any notice or provide any information to any Person prior to
considering or accepting any Acquisition Proposal or similar proposal, or prior
to entering into any discussions, agreement, arrangement or understanding
relating to any Acquisition Transaction or similar transaction;
(vii) any Contract incorporating or relating to any
guaranty, any warranty or any indemnity or similar obligation, except for
license agreements, maintenance agreements, distribution agreements and supply
agreements entered into in the ordinary course of business consistent with past
practices;
(viii) any Contract (other than a Contract entered into
in the ordinary course of business) (A) to which any Governmental Body is a
party or under which any Governmental Body has any rights or obligations, or (B)
directly or indirectly benefiting any Governmental Body (including any
subcontract or other Contract between any Acquired Company and any contractor or
subcontractor to any Governmental Body);
(ix) any Contract that has a stated term of more than
180 days and that may not be terminated by an Acquired Company (without penalty)
within 180 days after the delivery of a termination notice by such Acquired
Company;
(x) any Contract that contemplates or involves the
payment or delivery of cash or other consideration in an amount or having a
value in excess of $500,000 in the aggregate, and any Contract that contemplates
or involves the performance of services having a value in excess of $500,000 in
the aggregate;
(xi) any Contract or Plan (including, without
limitation, any stock option plan, stock appreciation plan or stock purchase
plan), any of the benefits of which will be increased, or the vesting of
benefits of which will be accelerated, by the execution of this Agreement or the
consummation of any of the transactions contemplated by this Agreement or the
value of any of the benefits of which will be calculated on the basis of any of
the transactions contemplated by this Agreement;
(xii) any joint marketing or development Contract
currently in force under which an Acquired Company has continuing material
obligations to jointly market any product, technology or service and which may
not be canceled without penalty upon notice of 90 days or less, or any material
Contract pursuant to which an Acquired Company has continuing material
obligations to jointly develop any Proprietary Asset that will not be owned, in
whole or in part, by an Acquired Company and which may not be canceled without
penalty upon notice of 180 days or less;
(xiii) any Contract currently in force to disclose or
deliver to any Person, or permit the disclosure or delivery to any escrow agent
or other Person, of the source code, or any portion or aspect of the source
code, or any proprietary information or algorithm contained in or relating to
any source code, of any Acquired Company Proprietary Asset that is material to
the Acquired Companies taken as a whole; and
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<PAGE> 22
(xiv) any Contract (not otherwise identified in clauses
"(i)" through "(xiii)" of this sentence) that could reasonably be expected to
have a material effect on (A) the business, financial condition, capitalization,
assets, liabilities, operations, financial performance or prospects of any of
the Acquired Companies or (B) the ability of the Company to perform any of its
obligations under, or to consummate any of the transactions contemplated by,
this Agreement or the Stock Option Agreement.
(b) Each Acquired Company Contract that constitutes a Material
Contract is valid and in full force and effect, and is enforceable by an
Acquired Company in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies. To the knowledge of the Company, no Person has violated or
breached, or committed any default under, any Material Contract, except for
violations, breaches and defaults that have not had and would not reasonably be
expected to have a Material Adverse Effect on the Acquired Companies.
(c) (i) None of the Acquired Companies has violated or breached,
or committed any default under, any Acquired Company Contract, except for
violations, breaches and defaults that have not had and would not reasonably be
expected to have a Material Adverse Effect on the Acquired Companies; and, to
the knowledge of the Company, no other Person has violated or breached, or
committed any default under, any Acquired Company Contract, except for
violations, breaches and defaults that have not had and would not reasonably be
expected to have a Material Adverse Effect on the Acquired Companies; (ii) to
the knowledge of the Company, no event has occurred, and no circumstance or
condition exists, that (with or without notice or lapse of time) will, or would
reasonably be expected to, (A) result in a violation or breach of any of the
provisions of any Acquired Company Contract, (B) give any Person the right to
declare a default or exercise any remedy under any Acquired Company Contract,
(C) give any Person the right to receive or require a rebate, chargeback,
penalty or change in delivery schedule under any Acquired Company Contract, (D)
give any Person the right to accelerate the maturity or performance of any
Acquired Company Contract, or (E) give any Person the right to cancel, terminate
or modify any Acquired Company Contract, except in each such case for
violations, breaches, defaults, remedies, rebates, chargebacks, penalties,
changes in delivery schedules, cancellation rights, acceleration rights,
termination rights, modification rights and other rights that have not had and
would not reasonably be expected to have a Material Adverse Effect on the
Acquired Companies; (iii) none of the Acquired Companies or any of their
Representatives has received any notice or other communication regarding any
actual or possible violation or breach of, or default under, any Acquired
Company Contract, except in each such case for defaults, acceleration rights,
termination rights and other rights that have not had and would not reasonably
be expected to have a Material Adverse Effect on the Acquired Companies; and
(iv) each of the Acquired Companies has obtained all necessary export licenses
related to the export of its products.
(d) No Person is renegotiating, or has a right pursuant to the
terms of any Material Contract to renegotiate, any amount paid or payable to any
Acquired Company under any Material Contract or any other material term or
provision of any Material Contract, except for any Material Contract which is
being renegotiated or provides for renegotiation pursuant to its terms in each
case in the ordinary course of business.
17.
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2.10 SALE OF PRODUCTS; PERFORMANCE OF SERVICES
(a) Each product, system, program, Proprietary Asset or other
asset designed, developed, manufactured, assembled, sold, installed, repaired,
licensed or otherwise made available by any of the Acquired Companies to any
Person: (i) substantially conformed and complied in all material respects with
the terms and requirements of any applicable warranty or other Contract and with
all applicable Legal Requirements; and (ii) was free of any bug, virus, design
defect or other defect or deficiency at the time it was sold or otherwise made
available, other than any bug, virus, design defect or other defect that (A)
would not adversely affect in any material respect such product, system,
program, Proprietary Asset or other asset (or the operation or performance
thereof), or (B) could be fixed in the ordinary course of business through the
performance of ordinary maintenance activities.
(b) All installation services, programming services, repair
services, maintenance services, support services, training services, upgrade
services and other services that have been performed by the Acquired Companies
were performed properly in all material respects and in conformity in all
material respects with the terms and requirements of all applicable warranties
and other Contracts and with all applicable Legal Requirements.
(c) Since March 31, 2000, no customer or other Person has
asserted or threatened to assert any claim against any of the Acquired Companies
under or based upon any warranty provided by or on behalf of any of the Acquired
Companies, or based upon any services performed by any of the Acquired
Companies, other than routine and ordinary claims in the ordinary course of
business consistent with past practice.
2.11 LIABILITIES. The Acquired Companies do not have any accrued,
contingent or other liabilities of any nature, either matured or unmatured,
except for: (a) liabilities identified as such in the "liabilities" column of or
in the notes to the Company Unaudited Interim Balance Sheet or the Company's
audited consolidated balance sheet for the year ended June 30, 1999; (b)
liabilities that have been incurred by the Acquired Companies since the date of
the Company Unaudited Interim Balance Sheet in the ordinary course of business
and consistent with past practices, or (c) liabilities which have not had and
would not reasonably be expected to have a Material Adverse Effect on the
Acquired Companies.
2.12 COMPLIANCE WITH LEGAL REQUIREMENTS. Each of the Acquired Companies
has complied and is in compliance with all applicable Legal Requirements
(including with respect to the operation and administration of each of the Plans
and with respect to Environmental Laws), except where the failure to comply with
such Legal Requirements has not had and would not reasonably be expected to have
a Material Adverse Effect on the Acquired Companies. None of the Acquired
Companies has received any notice or other communication from any Governmental
Body or other Person regarding any actual or possible violation of, or failure
to comply with, any Legal Requirement, except as has not had and would not
reasonably be expected to have a Material Adverse Effect on the Acquired
Companies.
2.13 CERTAIN BUSINESS PRACTICES. None of the Acquired Companies, and (to
the knowledge of the Company) no director, officer, agent or employee of any of
the Acquired Companies has, on behalf of any of the Acquired Companies, (i) used
any funds for unlawful
18.
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contributions, gifts, entertainment or other unlawful expenses relating to
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to foreign or domestic political parties or
campaigns or violated any provision of the Foreign Corrupt Practices Act of
1977, as amended, or (iii) made any other unlawful payment.
2.14 GOVERNMENTAL AUTHORIZATIONS.
(a) The Acquired Companies hold all Governmental Authorizations
necessary to enable the Acquired Companies to conduct their respective
businesses in the manner in which such businesses are currently being conducted,
except where the failure to hold such Governmental Authorizations has not had
and would not reasonably be expected to have a Material Adverse Effect on the
Acquired Companies. All such Governmental Authorizations are valid and in full
force and effect. Each Acquired Company is, and at all times since January 1,
1999 has been, in substantial compliance with the terms and requirements of such
Governmental Authorizations, except where the failure to be in compliance with
the terms and requirements of such Governmental Authorizations has not had and
would not reasonably be expected to have a Material Adverse Effect on the
Acquired Companies. Since January 1, 1999, none of the Acquired Companies has
received any notice or other communication from any Governmental Body regarding
(a) any actual or possible violation of or failure to comply with any term or
requirement of any material Governmental Authorization, or (b) any actual or
possible revocation, withdrawal, suspension, cancellation, termination or
modification of any material Governmental Authorization.
(b) Part 2.14(b) of the Company Disclosure Letter describes the
terms of each grant, incentive or subsidy provided or made available to or for
the benefit of any of the Acquired Companies by any U.S. or foreign Governmental
Body or otherwise. Each of the Acquired Companies is in full compliance with all
of the terms and requirements of each grant, incentive and subsidy identified or
required to be identified in Part 2.14(b) of the Company Disclosure Letter.
Neither the execution, delivery or performance of this Agreement, nor the
consummation of the Merger or any of the other transactions contemplated by this
Agreement, will (with or without notice or lapse of time) give any Person the
right to revoke, withdraw, suspend, cancel, terminate or modify any grant,
incentive or subsidy identified or required to be identified in Part 2.14(b) of
the Company Disclosure Letter.
2.15 TAX MATTERS.
(a) Each of the Tax Returns required to be filed by or on behalf
of the respective Acquired Companies with any Governmental Body on or before the
Closing Date (the "ACQUIRED COMPANY RETURNS") (i) has been or will be filed on
or before the applicable due date (including any extensions of such due date),
and (ii) has been, or will be when filed, prepared in all material respects in
compliance with all applicable Legal Requirements. All amounts shown on the
Acquired Company Returns to be due on or before the Closing Date have been or
will be paid on or before the Closing Date.
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(b) Except as set forth in Part 2.15(b) of the Company
Disclosure Letter, the Company Financial Statements fully accrue all actual and
contingent liabilities for Taxes with respect to all periods through the dates
thereof in accordance with GAAP. Each Acquired Company will establish, in the
ordinary course of business and consistent with its past practices, reserves
adequate for the payment of all Taxes for the period from January 1, 2000
through the Closing Date.
(c) Except as set forth in Part 2.15(c) of the Company
Disclosure Letter, no Acquired Company Return has prior to the date of this
Agreement been examined or audited by any Governmental Body. No extension or
waiver of the limitation period applicable to any of the Acquired Company
Returns has been granted (by the Company or any other Person), and no such
extension or waiver has been requested from any Acquired Company.
(d) No claim or Legal Proceeding is pending or, to the knowledge
of the Company, has been threatened against or with respect to any Acquired
Company in respect of any material Tax. Except as set forth in Part 2.15(d) of
the Company Disclosure Letter, there are no unsatisfied liabilities for material
Taxes (including liabilities for interest, additions to Tax and penalties
thereon and related expenses) with respect to any notice of deficiency or
similar document received by any Acquired Company with respect to any material
Tax (other than liabilities for Taxes asserted under any such notice of
deficiency or similar document which are being contested in good faith by the
Acquired Companies and with respect to which adequate reserves for payment have
been established). There are no liens for material Taxes upon any of the assets
of any of the Acquired Companies except liens for current Taxes not yet due and
payable. None of the Acquired Companies has entered into or become bound by any
agreement or consent pursuant to Section 341(f) of the Code (or any comparable
provision of state or foreign Tax laws). None of the Acquired Companies has
been, and none of the Acquired Companies will be, required to include any
adjustment in taxable income for any tax period (or portion thereof) pursuant to
Section 481 of the Code or any comparable provision under state or foreign Tax
laws as a result of transactions or events occurring, or accounting methods
employed, prior to the Closing.
(e) Except for any parachute payment which may arise under Code
Section 280G in connection with the accelerated vesting of the outstanding
Company Options held by an optionee whose service with the Surviving Corporation
is terminated by reason of an Involuntary Termination (as such term is defined
in the applicable stock option agreement for each such Company Option) within
eighteen months after the Effective Time, and except as set forth in Part
2.15(e) of the Company Disclosure Letter, there is no agreement, plan,
arrangement or other Contract covering any employee or independent contractor or
former employee or independent contractor of any of the Acquired Companies that,
individually or in the aggregate with any other such Contracts, will, or would
reasonably be expected to, give rise directly or indirectly to the payment of
any amount that would not be deductible pursuant to Section 280G or Sections
162(b) through (o) of the Code (or any comparable provision of state or foreign
Tax laws). None of the Acquired Companies is, or has ever been, a party to or
bound by any tax indemnity agreement, tax-sharing agreement, tax allocation
agreement or similar Contract, and none of the Acquired Companies is or has ever
been a "distributing corporation" within the meaning of Section 355 of the Code.
20.
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(f) None of the Acquired Companies have taken or agreed to take
any action that would prevent or impede the Merger from qualifying as a
reorganization under Section 368 of the Code nor have any of the Acquired
Companies omitted to take any action which omission would prevent the Merger
from qualifying as a reorganization under Section 368 of the Code.
2.16 EMPLOYEE AND LABOR MATTERS; BENEFIT PLANS.
(a) Part 2.16(a) of the Company Disclosure Letter identifies
each salary, bonus, vacation, deferred compensation, incentive compensation,
stock purchase, stock option, severance pay, termination pay, death and
disability benefits, hospitalization, medical, life or other insurance, flexible
benefits, supplemental unemployment benefits, profit-sharing, pension or
retirement plan, program or agreement and each other employee benefit plan or
arrangement (collectively, the "PLANS") sponsored, maintained, contributed to or
required to be contributed to by any of the Acquired Companies as of the date of
this Agreement for the benefit of any current or former employee of any of the
Acquired Companies. Part 2.16(a) of the Company Disclosure Letter also
identifies each Legal Requirement pursuant to which any of the Acquired
Companies is required, as of the date of this Agreement, to establish any
reserve or make any contribution for the benefit of any current or former
employee located in any foreign jurisdiction.
(b) Except as set forth in Part 2.16(b) of the Company
Disclosure Letter, none of the Acquired Companies maintains, sponsors or
contributes to, and none of the Acquired Companies has at any time in the past
maintained, sponsored or contributed to, any employee pension benefit plan (as
defined in Section 3(2) of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA"), or any similar pension benefit plan under the laws of any
foreign jurisdiction, whether or not excluded from coverage under specific
Titles or Subtitles of ERISA) for the benefit of employees or former employees
of any of the Acquired Companies (a "PENSION PLAN"). None of the Plans
identified in Part 2.16(a) of the Company Disclosure Letter is subject to Title
IV of ERISA or Section 412 of the Code.
(c) Except as set forth in Part 2.16(c) of the Company
Disclosure Letter, as of the date of this Agreement, none of the Acquired
Companies maintains, sponsors or contributes to any: (i) employee welfare
benefit plan (as defined in Section 3(1) of ERISA or any similar welfare plan
under the laws of any foreign jurisdiction, whether or not excluded from
coverage under specific Titles or Merger Subtitles of ERISA) for the benefit of
any current or former employees or directors of any of the Acquired Companies (a
"WELFARE PLAN"), or (ii) self-funded medical, dental or other similar Plan. None
of the Plans identified in Part 2.16(a) of the Company Disclosure Letter is a
multi-employer plan (within the meaning of Section 3(37) of ERISA).
(d) With respect to each Plan, the Company has delivered or made
available to Parent: (i) an accurate and complete copy of such Plan (including
all amendments thereto); (ii) except as set forth in Part 2.16(d)(ii) of the
Company Disclosure Letter, an accurate and complete copy of the annual report,
if required under ERISA, with respect to such Plan for the last two years; (iii)
an accurate and complete copy of the most recent summary plan description,
together with each Summary of Material Modifications, if required under ERISA,
with respect to such Plan, (iv) if such Plan is funded through a trust or any
third party funding vehicle, an accurate and complete copy of the trust or other
funding agreement (including all amendments
21.
<PAGE> 27
thereto) and accurate and complete copies the most recent financial statements
thereof; (v) accurate and complete copies of all Contracts relating to such
Plan, including service provider agreements, insurance contracts, minimum
premium contracts, stop-loss agreements, investment management agreements,
subscription and participation agreements and record-keeping agreements; and
(vi) except as set forth in Part 2.16(d)(vi) of the Company Disclosure Letter,
an accurate and complete copy of the most recent determination letter received
from the Internal Revenue Service with respect to such Plan (if such Plan is
intended to be qualified under Section 401(a) of the Code).
(e) None of the Acquired Companies is or has ever been required
to be treated as a single employer with any other Person under Section
4001(b)(1) of ERISA or Section 414(b), (c), (m) or (o) of the Code. None of the
Acquired Companies has ever been a member of an "affiliated service group"
within the meaning of Section 414(m) of the Code. None of the Plans identified
in the Company Disclosure Letter is a multi-employer plan (within the meaning of
Section 3(37) of ERISA). None of the Acquired Companies has ever made a complete
or partial withdrawal from a multi-employer plan, as such term is defined in
Section 3(37) of ERISA, resulting in "withdrawal liability," as such term is
defined in Section 4201 of ERISA (without regard to subsequent reduction or
waiver of such liability under either Section 4207 or 4208 of ERISA).
(f) None of the Acquired Companies has, as of the date of this
Agreement, any plan or commitment to create any Welfare Plan or any Pension
Plan, or to modify or change any existing Welfare Plan or Pension Plan (other
than to comply with applicable law) in a manner that would affect any current or
former employee or director of any of the Acquired Companies.
(g) No Plan provides death, medical or health benefits (whether
or not insured) with respect to any current or former employee or director of
any of the Acquired Companies after any termination of service of such employee
or director (other than benefit coverage mandated by applicable law, including
coverage provided pursuant to Section 4980B of the Code).
(h) With respect to any Plan constituting a group health plan
within the meaning of Section 4980B(g)(2) of the Code, the provisions of Section
4980B of the Code ("COBRA") have been complied with in all material respects.
Part 2.16(h) of the Company Disclosure Letter describes all obligations of the
Acquired Companies as of the date of this Agreement under any of the provisions
of COBRA.
(i) Except as set forth in Part 2.16(i) of the Company
Disclosure Letter, each of the Plans intended to be qualified under Section
401(a) of the Code has either received a favorable determination letter from the
Internal Revenue Service, and nothing has occurred that would adversely affect
such determination, or still has a remaining period of time under applicable
Treasury Regulations or Internal Revenue Service pronouncements in which to
apply for such determination letter and to make any amendments necessary to
obtain a favorable determination.
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(j) Except as set forth in Part 2.16(j) of the Company
Disclosure Letter, neither the execution, delivery or performance of this
Agreement, nor the consummation of the Merger or any of the other transactions
contemplated by this Agreement, will result in any bonus, golden parachute,
severance or other payment or obligation to any current or former employee or
director of any of the Acquired Companies (whether or not under any Plan), or
materially increase the benefits payable or provided under any Plan, or result
in any acceleration of the time of payment or vesting of any such benefits.
Without limiting the generality of the foregoing, the consummation of the Merger
will not result in the acceleration of vesting of any unvested Company Options.
However, each outstanding Company Option held by an optionee will vest and
become exercisable for all the option shares on an accelerated basis should an
Involuntary Termination (as such term is defined in the applicable stock option
agreement for each such Company Option) of that optionee's service with the
Surviving Corporation occur within eighteen months after the Effective Time.
(k) Part 2.16(k) of the Company Disclosure Letter contains a
list of all salaried employees of each of the Acquired Companies as of March 31,
2000, and correctly reflects, in all material respects, their salaries, any
other compensation payable to them (including compensation payable pursuant to
bonus, deferred compensation or commission arrangements) and their positions.
None of the Acquired Companies is a party to any collective bargaining contract
or other Contract with a labor union involving any of its employees. All of the
employees of the Acquired Companies are "at will" employees.
(l) Each of the Acquired Companies has good labor relations,
and, to the knowledge of the Company, (i) the consummation of the Merger or any
of the other transactions contemplated by this Agreement will not have a
material adverse effect on the labor relations of any of the Acquired Companies,
and (ii) none of the employees of the Acquired Companies intends to terminate
his or her employment with the Acquired Company with which such employee is
employed.
2.17 ENVIRONMENTAL MATTERS. None of the Acquired Companies has received
any notice or other communication (in writing or otherwise), whether from a
Governmental Body, citizens group, Employee or otherwise, that alleges that any
of the Acquired Companies is not in compliance with any Environmental Law. To
the knowledge of the Company, (a) all property that is leased to, controlled by
or used by any of the Acquired Companies, and all surface water, groundwater and
soil associated with or adjacent to such property, is free of any material
environmental contamination of any nature, (b) none of the property leased to,
controlled by or used by any of the Acquired Companies contains any underground
storage tanks, asbestos, equipment using PCBs, underground injection wells, and
(c) none of the property leased to, controlled by or used by any of the Acquired
Companies contains any septic tanks in which process wastewater or any Materials
of Environmental Concern have been disposed of. No Acquired Company has ever
sent or transported, or arranged to send or transport, any Materials of
Environmental Concern to a site that, pursuant to any applicable Environmental
Law, (i) has been placed on the "National Priorities List" of hazardous waste
sites or any similar state list, (ii) is otherwise designated or identified as a
potential site for remediation, cleanup, closure or other environmental remedial
activity, or (iii) is subject to a Legal Requirement to take "removal" or
"remedial" action as detailed in any applicable Environmental Law or to make
payment for the cost of cleaning up any site.
23.
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2.18 INSURANCE. Part 2.18 of the Company Disclosure Letter accurately
identifies all material insurance policies and all material self insurance
programs and arrangements relating to the business, assets and operations of the
Acquired Companies. Each of such insurance policies is in full force and effect.
Since January 1, 1999, none of the Acquired Companies has received any notice or
other communication regarding any actual or possible (a) cancellation or
invalidation of any insurance policy, (b) refusal of any coverage or rejection
of any material claim under any insurance policy, or (c) material adjustment in
the amount of the premiums payable with respect to any insurance policy.
2.19 TRANSACTIONS WITH AFFILIATES. Except as set forth in the Company
SEC Documents filed prior to the date of this Agreement and except for events
similar in nature to those disclosed in the last proxy statement filed by the
Company with the SEC, since the date of the Company's last proxy statement filed
with the SEC, no event has occurred that would be required to be reported by the
Company pursuant to Item 404 of Regulation S-K promulgated by the SEC. Exhibit D
identifies each Person who is (or who may be deemed to be) an Affiliate of the
Company as of the date of this Agreement.
2.20 LEGAL PROCEEDINGS; ORDERS.
(a) There is no pending Legal Proceeding, and (to the knowledge
of the Company) no Person has threatened to commence any Legal Proceeding: (i)
that involves any of the Acquired Companies or any of the assets owned or used
by any of the Acquired Companies, including, without limitation, any Acquired
Company Proprietary Asset; or (ii) that challenges, or that may have the effect
of preventing, delaying, making illegal or otherwise interfering with, the
Merger or any of the other transactions contemplated by this Agreement. To the
knowledge of the Company, no event has occurred, and no claim, dispute or other
condition or circumstance exists, that would reasonably be expected to, give
rise to or serve as a basis for the commencement of any such Legal Proceeding.
To the knowledge of the Company, no event has occurred, and no claim, dispute or
other condition or circumstance exists, that would reasonably be expected to,
cause or provide a basis for a director, officer or other Representative of any
of the Acquired Companies to seek indemnification from, or commence a Legal
Proceeding against or involving, any of the Acquired Companies.
(b) There is no material order, writ, injunction, judgment or
decree to which any of the Acquired Companies, or any of the assets owned or
used by any of the Acquired Companies, is subject. To the knowledge of the
Company, no officer or other employee of any of the Acquired Companies is
subject to any order, writ, injunction, judgment or decree that prohibits such
officer or other employee from engaging in or continuing any conduct, activity
or practice relating to the business of any of the Acquired Companies.
2.21 AUTHORITY; INAPPLICABILITY OF ANTI-TAKEOVER STATUTES; BINDING
NATURE OF AGREEMENT. The Company has the requisite power and authority to enter
into and to perform its obligations under this Agreement and under the Stock
Option Agreement. The Board of Directors of the Company (at a meeting duly
called and held) has (a) unanimously determined that the Merger is advisable and
fair and in the best interests of the Company and its stockholders, (b)
unanimously authorized and approved the execution, delivery and performance of
this Agreement and the Stock Option Agreement by the Company and unanimously
approved
24.
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the Merger, (c) unanimously recommended the approval of this Agreement by the
holders of Company Common Stock and directed that this Agreement and the Merger
be submitted for consideration by the Company's stockholders at the Company
Stockholders' Meeting (as defined in Section 4.4(a)), and (d) to the extent
necessary, adopted a resolution having the effect of causing the Company not to
be subject to any state takeover law or similar Legal Requirement that might
otherwise apply to the Merger or any of the other transactions contemplated by
this Agreement. Assuming the due authorization, execution and delivery by each
of Parent and Merger Sub, this Agreement and the Stock Option Agreement
constitute the legal, valid and binding obligations of the Company, enforceable
against the Company in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies. Prior to the execution of those certain Voting
Agreements of even date herewith and prior to the execution of the Stock Option
Agreement, the Board of Directors of the Company approved said Voting Agreements
and said Stock Option Agreement and the transactions contemplated thereby. No
state takeover statute or similar Legal Requirement applies or purports to apply
to the Merger, this Agreement or any of the transactions contemplated hereby.
2.22 INAPPLICABILITY OF SECTION 2115 OF CALIFORNIA CORPORATIONS CODE.
The Acquired Companies are not subject to Section 2115 of the California
Corporations Code.
2.23 VOTE REQUIRED. The affirmative vote of the holders of a majority of
the shares of Company Common Stock outstanding on the record date for the
Company Stockholder Meeting (the "REQUIRED COMPANY STOCKHOLDER APPROVAL") is the
only vote of the holders of any class or series of the Company's capital stock
necessary to adopt this Agreement, the Merger and the other transactions
contemplated by this Agreement.
2.24 NON-CONTRAVENTION; CONSENTS. Neither (i) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement by the Company, nor (ii) the consummation of the Merger or any of the
other transactions contemplated by this Agreement by the Company, will directly
or indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i)
any of the provisions of the certificate of incorporation, bylaws or other
charter or organizational documents of any of the Acquired Companies, or (ii)
any resolution adopted by the stockholders, the board of directors or any
committee of the board of directors of any of the Acquired Companies;
(b) contravene, conflict with or result in a violation of any
Legal Requirement or any order, writ, injunction, judgment or decree to which
any of the Acquired Companies, or any of the assets owned or used by any of the
Acquired Companies, is subject;
(c) contravene, conflict with or result in a violation of any of
the terms or requirements of, or give any Governmental Body the right to revoke,
withdraw, suspend, cancel, terminate or modify, any Governmental Authorization
that is held by any of the Acquired Companies or that otherwise relates to the
business of any of the Acquired Companies or to any of the assets owned or used
by any of the Acquired Companies;
25.
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(d) except as set forth in Part 2.24(d) of the Company
Disclosure Letter, contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any Material Contract, or
give any Person the right to (i) declare a default or exercise any remedy under
any such Material Contract, (ii) a rebate, chargeback, penalty or change in
delivery schedule under any such Material Contract, (iii) accelerate the
maturity or performance of any such Material Contract, or (iv) cancel, terminate
or modify any term of such Material Contract; or
(e) result in the imposition or creation of any Encumbrance upon
or with respect to any asset owned or used by any of the Acquired Companies
(except for minor liens that will not, in any case or in the aggregate,
materially detract from the value of the assets subject thereto or materially
impair the operations of any of the Acquired Companies).
Except as may be required by the Securities Act, the Exchange Act, state
securities or "blue sky" laws, the DGCL, the HSR Act and any foreign antitrust
law or regulation, none of the Acquired Companies was, is or will be required to
make any filing with or give any notice to, or to obtain any Consent from, any
Person in connection with (x) the execution, delivery or performance of this
Agreement, the Stock Option Agreement or any of the other agreements referred to
in this Agreement, or (y) the consummation by the Company of the Merger or any
of the other transactions contemplated by this Agreement or the Stock Option
Agreement.
2.25 FAIRNESS OPINION. The Company's Board of Directors has received the
opinion of Dain Rauscher Wessels, financial advisor to the Company, as of the
date of this Agreement, to the effect that the consideration to be received by
the stockholders of the Company in the Merger is fair to the stockholders of the
Company from a financial point of view. The Company will furnish an accurate and
complete copy of the written opinion of Dain Rauscher Wessels to the effect
referred to in the preceding sentence to Parent as soon as practicable following
the execution of this Agreement.
2.26 FINANCIAL ADVISOR. Except for Dain Rauscher Wessels, no broker,
finder or investment banker is entitled to any brokerage, finder's or other fee
or commission in connection with the Merger or any of the other transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
any of the Acquired Companies. The Company has furnished to Parent accurate and
complete copies of all agreements under which any such fees, commissions or
other amounts have been paid to or may become payable and all indemnification
and other agreements related to the engagement of Dain Rauscher Wessels.
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2.27 DISCLOSURE. None of the information supplied or to be supplied by
or on behalf of the Company for inclusion or incorporation by reference in the
Form S-4 Registration Statement will, at the time the Form S-4 Registration
Statement is filed with the SEC 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 in order to make
the statements therein, in the light of the circumstances under which they are
made, not misleading. None of the information supplied or to be supplied by or
on behalf of the Company for inclusion or incorporation by reference in the
Proxy Statement/Prospectus will, at the time the Proxy Statement/Prospectus is
mailed to the stockholders of the Company or at the time of the Company
Stockholders' Meeting (or any adjournment or postponement thereof), 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
the light of the circumstances under which they are made, not misleading. The
Proxy Statement/Prospectus will comply as to form in all material respects with
the provisions of the Exchange Act.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB.
Except set forth in the disclosure letter delivered to the Company on
the date of this Agreement and signed by an executive officer of Parent (the
"PARENT DISCLOSURE LETTER"), Parent and Merger Sub, jointly and severally,
represent and warrant to the Company as follows:
3.1 ORGANIZATION, STANDING AND POWER. Each of Parent and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Delaware. Each of Parent and Merger Sub has all corporate power
and authority to own its properties and to carry on its business as now being
conducted and is duly qualified to do business and is in good standing in each
jurisdiction in which the failure to be so qualified would have a Material
Adverse Effect on Parent and Merger Sub.
3.2 CAPITALIZATION, ETC.
(a) The authorized capital stock of Parent consists of: (i)
200,000,000 shares of Parent Common Stock, $.001 par value per share, of which,
as of March 31, 2000, approximately 32,370,142 shares (which amount does not
materially differ from the amount issued and outstanding as of the date of this
Agreement) have been issued and were outstanding; and (ii) 5,000,000 shares of
preferred stock, $.001 par value per share, of which no shares are outstanding
as of the date of this Agreement. As of March 31, 2000, there were 600,000
shares of Parent Common Stock available for purchase pursuant to Parent's
Employee Stock Purchase Plan. All of the outstanding shares of Parent Common
Stock have been duly authorized and validly issued, and are fully paid and
nonassessable. As of the date of this Agreement, there are no shares of Parent
Common Stock held in treasury by Parent.
(b) As of March 31, 2000, approximately 8,261,506 shares (which
amount does not materially differ from the amount subject to options outstanding
as of the date of this Agreement) of Parent Common Stock were subject to
issuance pursuant to outstanding options to purchase Parent Common Stock
("Parent Options"). As of March 31, 2000, 3,000 shares of
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Parent Common Stock were subject to issuance pursuant to outstanding warrants to
purchase Parent Common Stock ("Parent Warrants").
(c) As of the date of this Agreement, except as set forth in
Section 3.2(b) or as set forth in Part 3.2(c) of the Parent Disclosure Letter,
there is no: (i) outstanding subscription, option, call, warrant or right
(whether or not currently exercisable) to acquire any shares of the capital
stock or other securities of Parent; (ii) outstanding security, instrument or
obligation that is or may become convertible into or exchangeable for any shares
of the capital stock or other securities of Parent; (iii) stockholder rights
plan (or similar plan commonly referred to as a "poison pill") or Contract under
which Parent is or may become obligated to sell or otherwise issue any shares of
its capital stock or any other securities; or (iv) condition or circumstance
that would reasonably be expected to give rise to or provide a basis for the
assertion of a claim by any Person to the effect that such Person is entitled to
acquire or receive any shares of capital stock or other securities of Parent.
(d) All outstanding shares of Parent Common Stock, all
outstanding Parent Options, all outstanding Parent Warrants and all outstanding
shares of capital stock of each Subsidiary of Parent have been issued and
granted in compliance with (i) all applicable securities laws and other
applicable Legal Requirements, and (ii) all requirements set forth in applicable
Contracts, except where the failure to be issued or granted in compliance
therewith has not had and would not reasonably be expected to have a Material
Adverse Effect on Parent.
3.3 SEC FILINGS; FINANCIAL STATEMENTS.
(a) Parent has delivered or made available to the Company
accurate and complete copies (excluding copies of exhibits) of each report,
registration statement and definitive proxy statement filed by Parent with the
SEC since January 1, 1999 (collectively, with all information incorporate by
reference therein or deemed to be incorporated by reference therein, the "PARENT
SEC DOCUMENTS"). All statements, reports, schedules, forms and other documents
required to have been filed by Parent with the SEC have been so filed on a
timely basis. As of the time it was filed with the SEC (or, if amended or
superseded by a filing prior to the date of this Agreement, then on the date of
such filing): (i) each of the Parent SEC Documents complied in all material
respects with the applicable requirements of the Securities Act or the Exchange
Act ; and (ii) none of the Parent SEC Documents contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
(b) The consolidated financial statements contained in the
Parent SEC Documents: (i) complied as to form in all material respects with the
published rules and regulations of the SEC applicable thereto; (ii) were
prepared in accordance with GAAP applied on a consistent basis throughout the
periods covered (except as may be indicated in the notes to such financial
statements and, in the case of unaudited statements, as permitted by Form 10-Q
of the SEC, and except that unaudited financial statements may not contain
footnotes and are subject to normal and recurring year-end audit adjustments
which will not, individually or in the aggregate, be material in amount); and
(iii) fairly present, in all material respects, the consolidated financial
position of Parent and its consolidated subsidiaries as of the respective
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dates thereof and the consolidated results of operations of Parent and its
consolidated subsidiaries for the periods covered thereby. All adjustments
considered necessary for a fair presentation of the financial statements have
been included. All financial statements (including all related notes and
schedules) contained in Parent SEC Documents filed after the date hereof shall
meet the conditions set forth in (i), (ii) and (iii) of this Section 3.3(b).
3.4 DISCLOSURE. None of the information supplied or to be supplied by or
on behalf of Parent and Merger Sub for inclusion or incorporation by reference
in the Form S-4 Registration Statement will, at the time the Form S-4
Registration Statement is filed with the SEC 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 in
order to make the statements therein not misleading. None of the information
supplied or to be supplied by or on behalf of Parent and Merger Sub for
inclusion or incorporation by reference in the Proxy Statement/Prospectus will,
at the time the Proxy Statement/Prospectus is mailed to the stockholders of the
Company or at the time of the Company Stockholders' Meeting (or any adjournment
or postponement thereof), 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 the light of the circumstances under
which they are made, not misleading. The Form S-4 Registration Statement will
comply as to form in all material respects with the provisions of the Securities
Act.
3.5 AUTHORITY; BINDING NATURE OF AGREEMENT. Parent and Merger Sub have
the absolute and unrestricted right, power and authority to perform their
obligations under this Agreement; and the execution, delivery and performance by
Parent and Merger Sub of this Agreement have been duly authorized by all
necessary action on the part of Parent and Merger Sub and their respective
boards of directors. This Agreement constitutes the legal, valid and binding
obligation of Parent and Merger Sub, enforceable against them in accordance with
its terms, subject to (i) laws of general application relating to bankruptcy,
insolvency and the relief of debtors, and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
3.6 NON-CONTRAVENTION; CONSENTS. Neither (i) the execution, delivery or
performance of this Agreement or any of the other agreements referred to in this
Agreement by Parent, nor (ii) the consummation of the Merger or any of the other
transactions contemplated by this Agreement by Parent, will directly or
indirectly (with or without notice or lapse of time):
(a) contravene, conflict with or result in a violation of (i)
any of the provisions of the certificate of incorporation, bylaws or other
charter or organizational documents of Parent or Merger Sub, or (ii) any
resolution adopted by the stockholders, the board of directors or any committee
of the board of directors of any of Parent or Merger Sub;
(b) contravene, conflict with or result in a violation of any
Legal Requirement or any order, writ, injunction, judgment or decree to which
Parent or Merger Sub, or any of the assets owned or used by Parent or Merger
Sub, is subject;
(c) contravene, conflict with or result in a violation of any of
the terms or requirements of, or give any Governmental Body the right to revoke,
withdraw, suspend, cancel,
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terminate or modify, any Governmental Authorization that is held by Parent or
that otherwise relates to the business of Parent or to any of the assets owned
or used by Parent;
(d) contravene, conflict with or result in a violation or breach
of, or result in a default under, any provision of any material Contract to
which Parent is a party, or give any Person the right to (i) declare a default
or exercise any remedy under any such material Contract, (ii) a rebate,
chargeback, penalty or change in delivery schedule under any such material
Contract, (iii) accelerate the maturity or performance of any such material
Contract, or (iv) cancel, terminate or modify any term of such material
Contract; or
(e) result in the imposition or creation of any Encumbrance upon
or with respect to any asset owned or used by Parent (except for minor liens
that will not, in any case or in the aggregate, materially detract from the
value of the assets subject thereto or materially impair the operations of
Parent).
Except as may be required by the Securities Act, the Exchange Act, state
securities or "blue sky" laws, the DGCL, the HSR Act, any foreign antitrust law
or regulation and the NASD Bylaws (as they relate to the Form S-4 Registration
Statement and the Proxy Statement/Prospectus), neither Parent nor Merger Sub
was, is or will be required to make any filing with or give any notice to, or to
obtain any Consent from, any Person in connection with (x) the execution,
delivery or performance of this Agreement, the Stock Option Agreement or any of
the other agreements referred to in this Agreement, or (y) the consummation by
Parent or Merger Sub of the Merger or any of the other transactions contemplated
by this Agreement or the Stock Option Agreement.
3.7 ABSENCE OF CHANGES. Between March 31, 2000 and the date of this
Agreement, there has not been any Material Adverse Effect on Parent.
3.8 FINANCIAL ADVISOR. Except for Thomas Weisel Partners, LLC, no
broker, finder or investment banker is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger or any of the other
transactions contemplated by this Agreement based upon arrangements made by or
on behalf of Parent.
3.9 VALID ISSUANCE. The Parent Common Stock to be issued in the Merger
will, when issued in accordance with the provisions of this Agreement, be duly
authorized, validly issued, fully paid and nonassessable and not issued in
violation of any preemptive rights.
SECTION 4. CERTAIN COVENANTS OF THE COMPANY.
4.1 ACCESS AND INVESTIGATION.
(a) During the period from the date of this Agreement through
the Effective Time (the "PRE-CLOSING PERIOD"), the Company shall, and shall
cause the respective Representatives of the Acquired Companies to: (i) provide
Parent and Parent's Representatives with reasonable access at all reasonable
times to the Acquired Companies' Representatives, personnel and assets and to
all existing books, records, Tax Returns, work papers and other documents and
information relating to the Acquired Companies; and (ii) provide Parent and
Parent's Representatives with such copies of the existing books, records, Tax
Returns, work papers and other documents and information relating to the
Acquired Companies, and with such
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additional financial, operating and other data and information regarding the
Acquired Companies, as Parent may reasonably request.
(b) Without limiting the generality of the foregoing, during the
Pre-Closing Period, the Company shall promptly provide Parent with copies of:
(i) all material operating and financial reports
prepared by the Company and its Subsidiaries and delivered to the Company's
senior management, including (A) copies of the unaudited monthly consolidated
balance sheets of the Acquired Companies and the related unaudited monthly
consolidated statements of operations, statements of stockholders' equity and
statements of cash flows and (B) copies of any sales forecasts, marketing plans,
development plans, discount reports, write-off reports, hiring reports and
capital expenditure reports delivered to the Company's senior management;
(ii) any written materials or communications sent by or
on behalf of the Company to its stockholders;
(iii) any material notice, document or other
communication sent by or on behalf of any of the Acquired Companies to any party
to any Acquired Company Contract or sent to any of the Acquired Companies by any
party to any Acquired Company Contract (other than any communication that
relates solely to routine commercial transactions between the applicable
Acquired Company and the other party to any such Acquired Company Contract and
that is of the type sent in the ordinary course of business and consistent with
past practices);
(iv) any notice, report or other document filed with or
sent to any Governmental Body in connection with the Merger or any of the other
transactions contemplated by this Agreement; and
(v) to the extent permitted by law, rule or regulation,
any material notice, report or other document received by any of the Acquired
Companies from any Governmental Body.
4.2 OPERATION OF THE COMPANY'S BUSINESS.
(a) During the Pre-Closing Period: (i) the Company shall ensure
that each of the Acquired Companies conducts its business and operations (A) in
the ordinary course and in accordance with past practices and (B) in compliance
with all applicable Legal Requirements and the requirements of all Material
Contracts; (ii) the Company shall use commercially reasonable efforts to ensure
that each of the Acquired Companies preserves intact its current business
organization, keeps available the services of its current officers and employees
and maintains its relations and goodwill with all suppliers, customers,
landlords, creditors, licensors, licensees, employees and other Persons having
business relationships with the respective Acquired Companies; (iii) the Company
shall keep in full force all insurance policies referred to in Section 2.18
other than those insurance policies that expire at the end of their stated term
(which shall be replaced with similar insurance policies); (iv) the Company
shall provide all notices, assurances and support required by any Acquired
Company Contract relating to any Acquired Company Proprietary Asset in order to
ensure that no condition under such Acquired Company Contract occurs that would
reasonably be
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expected to result in, or would reasonably be expected to increase the
likelihood of, (A) any transfer or disclosure by any Acquired Company of any
Acquired Company Proprietary Asset, or (B) a release from any escrow of any
Acquired Company Proprietary Asset that has been deposited or is required to be
deposited in escrow under the terms of such Acquired Company Contract; (v) the
Company shall promptly notify Parent of (A) any notice or other communication
from any Person alleging that the Consent of such Person is or may be required
in connection with the transactions contemplated by this Agreement, and (B) any
Legal Proceeding commenced or threatened against, relating to or involving or
otherwise affecting any of the Acquired Companies that relates to the
consummation of the transactions contemplated by this Agreement; and (vi) the
Company shall (to the extent reasonably requested by Parent) cause its officers
and the officers of its Subsidiaries to report regularly to Parent concerning
the status of the Company's business.
(b) During the Pre-Closing, unless otherwise contemplated by
this Agreement, the Company shall not (without the prior written consent of
Parent, which consent shall not be unreasonably withheld or delayed), and shall
not permit any of the other Acquired Companies to:
(i) declare, accrue, set aside or pay any dividend or
make any other distribution in respect of any shares of capital stock, or
repurchase, redeem or otherwise reacquire any shares of capital stock or other
securities;
(ii) sell, issue, grant or authorize the issuance or
grant of (A) any capital stock or other security, (B) any option, call, warrant
or right to acquire any capital stock or other security, or (C) any instrument
convertible into or exchangeable for any capital stock or other security (except
that (1) the Company may issue shares of Company Common Stock upon the valid
exercise of Company Options outstanding as of the date of this Agreement, (2)
the Company may, in the ordinary course of business and consistent with past
practices, grant Company Options (having an exercise price equal to the fair
market value of the Company Common Stock covered by such options determined as
of the time of the grant of such options) to employees of the Company under its
Plans to purchase no more than a total of 100,000 shares of Company Common
Stock, and (3) if an employee's employment with the Acquired Companies is
terminated and such employee surrenders to the Company unvested Company Options,
then, subject to the limitations set forth in clause "(xii)" of this Section
4.2(a), such unvested Company Options may be re-granted by the Company to any
Person who is hired to replace such terminated employee);
(iii) amend or waive any of its rights under, or
accelerate the vesting under, any provision of any of the Company's stock option
plans, any provision of any agreement evidencing any outstanding stock option or
any restricted stock purchase agreement, or otherwise modify any of the terms of
any outstanding option, warrant or other security or any related Contract;
(iv) amend or permit the adoption of any amendment to
its certificate of incorporation or bylaws or other charter or organizational
documents, or effect or become a party to any merger, consolidation, share
exchange, business combination, recapitalization, reclassification of shares,
stock split, reverse stock split, consolidation of shares or similar
transaction;
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(v) form any subsidiary or acquire any equity interest
or other interest in any other Entity, other than interests in short term
investments in the ordinary course of business consistent with past practices;
(vi) make any capital expenditure (except that the
Acquired Companies may make capital expenditures that, when added to all other
capital expenditures made on behalf of the Acquired Companies during the
Pre-Closing Period, do not exceed $500,000 in the aggregate);
(vii) enter into or become bound by, or permit any of
the assets owned or used by it to become bound by, any Material Contract, or
amend or terminate, or waive or exercise any material right or remedy under, any
Material Contract, other than in each case in the ordinary course of business
consistent with past practices;
(viii) acquire, lease or license any right or other
asset from any other Person or sell or otherwise dispose of, or lease or
license, any right or other asset to any other Person (except in each case for
assets acquired, leased, licensed, sold or disposed of by an Acquired Company in
the ordinary course of business and consistent with past practices), or, other
than in the ordinary course of business consistent with past practices, waive or
relinquish any right;
(ix) incur any indebtedness for borrowed money (other
than (A) in connection with the financing of ordinary trade receivables; (B)
pursuant to existing credit facilities; (C) in connection with leasing
activities in the ordinary course of business; or (D) for tax planning purposes
in the ordinary course of business) or guarantee any indebtedness of any person
for borrowed money, or issue or sell any debt securities or warrants or right to
acquire debt securities of any of the Acquired Companies or guarantee any debt
securities of others.
(x) establish, adopt or amend any employee benefit plan,
pay any bonus or make any profit-sharing or similar payment to, or increase the
amount of the wages, salary, commissions, fringe benefits or other compensation
or remuneration payable to, any of its directors, officers or employees (except
that the Company (A) may make routine, reasonable salary increases in connection
with the Company's customary employee review process, (B) may pay customary
bonuses consistent with past practices payable in accordance with existing bonus
plans and (C) may make such amendments required by changes made to applicable
law);
(xi) grant any severance or termination pay to any
officer or employee except payments in amounts consistent with policies and past
practices or pursuant to written agreements outstanding, or policies existing,
on the date hereof and as previously disclosed in writing or made available to
Parent, or adopt any new severance plan;
(xii) hire any employee at the level of vice president
or above or with an annual base salary in excess of $120,000, or promote any
employee to the position of officer except in order to fill a position vacated
after the date of this Agreement;
(xiii) change the status, title or responsibilities,
including without limitation, termination or promotion, of any officer of the
Company or promote any employee to an officer position in the Company;
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(xiv) transfer or license to any Person or otherwise
extend the term of any agreement with respect to, amend or modify in any
material respect any rights (including without limitation distribution rights)
to the Acquired Company Proprietary Assets, or enter into assignments of future
patent rights, other than non-exclusive licenses and distribution rights in the
ordinary course of business and consistent with past practices;
(xv) sell, lease, license, encumber or otherwise dispose
of any properties or assets which are material, individually or in the
aggregate, to the business of the Acquired Companies, except in the ordinary
course of business consistent with past practice or lend funds to any third
party (other than intra-company loans and travel advances in the ordinary course
of business);
(xvi) change any of its pricing policies, product return
policies, product maintenance polices, service policies, product modification or
upgrade policies, personnel policies or other business policies in any material
respect;
(xvii) change in any material respect its accounting
policies, methods or procedures except as required by GAAP;
(xviii)make any Tax election;
(xix) commence or settle any material Legal Proceeding;
(xx) take any action which it believes when taken would,
individually or in the aggregate, reasonably be expected to adversely affect or
delay in any material respect the ability of any of the Parties to obtain any
approval of any Governmental Body required to consummate the transactions
contemplated hereby;
(xxi) take any action to cause the share of Company
Common Stock to cease to be quoted on any of the stock exchanges on which such
shares are now quoted;
(xxii) take any action which it believes when taken
would cause its representations and warranties contained herein to become
inaccurate in any material respect;
(xxiii)enter into any material transaction or take any
other material action outside the ordinary course of business or inconsistent
with past practices;
(xxiv) enter into any agreement requiring the consent or
approval of any third party with respect to the Merger; or
(xxv) agree or commit to take any of the actions
described in clauses "(i)" through "(xxiv)" of this Section 4.2(b).
(c) During the Pre-Closing Period, the Company shall promptly
notify Parent in writing of: (i) the discovery by the Company of any event,
condition, fact or circumstance that occurred or existed on or prior to the date
of this Agreement and that caused or constitutes a material inaccuracy in any
representation or warranty made by the Company in this Agreement; (ii) any
event, condition, fact or circumstance that occurs, arises or exists after the
date of this
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Agreement and that would cause or constitute a material inaccuracy in any
representation or warranty made by the Company in this Agreement if (A) such
representation or warranty had been made as of the time of the occurrence,
existence or discovery of such event, condition, fact or circumstance, or (B)
such event, condition, fact or circumstance had occurred, arisen or existed on
or prior to the date of this Agreement; (iii) any event, condition, fact or
circumstance hereafter arising which, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described in the
Company Disclosure Letter; (iv) any material breach of any covenant or
obligation of the Company; and (v) any event, condition, fact or circumstance
that would make the timely satisfaction of any of the conditions set forth in
Section 6 or Section 7 impossible or unlikely or that has had or would
reasonably be expected to have a Material Adverse Effect on the Acquired
Companies. Without limiting the generality of the foregoing, the Company shall
promptly advise Parent in writing of any material Legal Proceeding or material
claim threatened, commenced or asserted against or with respect to any of the
Acquired Companies. No notification given to Parent pursuant to this Section
4.2(c) shall limit or otherwise affect any of the representations, warranties,
covenants or obligations of the Company contained in this Agreement.
4.3 NO SOLICITATION.
(a) From the date of this Agreement until the earlier of the
Effective Time or termination of this Agreement pursuant to Section 8, the
Company shall not directly or indirectly, and shall not authorize or permit any
Subsidiary of the Company or any Representative of any of the Acquired Companies
directly or indirectly to, (i) solicit, initiate, encourage or induce the
making, submission or announcement of any Acquisition Proposal or take any
action that would, individually or in the aggregate, reasonably be expected to
lead to an Acquisition Proposal, (ii) furnish any information regarding any of
the Acquired Companies to any Person in connection with or in response to an
Acquisition Proposal or an inquiry or indication of interest that could lead to
an Acquisition Proposal, (iii) engage in discussions with any Person with
respect to any Acquisition Proposal, (iv) approve, endorse or recommend any
Acquisition Proposal or (v) enter into any letter of intent or similar document
or any Contract contemplating or otherwise relating to any Acquisition
Transaction; provided, however, that nothing herein shall prohibit the Company's
Board of Directors from complying with Rules 14d-9 or 14e-2 under the Exchange
Act; and provided, further, that prior to the Required Company Stockholder
Approval, this Section 4.3(a) shall not prohibit the Company from furnishing
nonpublic information regarding the Acquired Companies to, or entering into
discussions with, any Person in response to an Acquisition Proposal that is
submitted to the Company by such Person (and not withdrawn) if (1) neither the
Company nor any Representative of any of the Acquired Companies shall have
violated in any material respect any of the restrictions set forth in this
Section 4.3, (2) the Board of Directors of the Company concludes in good faith
(based upon a written opinion of an independent financial advisor of nationally
recognized reputation) that such Acquisition Proposal constitutes, or would
reasonably be expected to lead to, a Superior Offer, (3) the Board of Directors
of the Company concludes in good faith after having taken into account the
advice of its outside legal counsel, that such action is required in order for
the Board of Directors of the Company to comply with its fiduciary obligations
to the Company's stockholders under applicable law, (4) at least 24 hours prior
to furnishing any such nonpublic information to, or entering into discussions
with, such Person, the Company gives Parent written notice of the identity of
such Person and of the Company's intention to furnish
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nonpublic information to, or enter into discussions with, such Person, and the
Company receives from such Person an executed confidentiality agreement
containing customary limitations on the use and disclosure of all nonpublic
written and oral information furnished to such Person by or on behalf of the
Company, and (5) prior to furnishing any such nonpublic information to such
Person, the Company furnishes such nonpublic information to Parent (to the
extent such nonpublic information has not been previously furnished by the
Company to Parent). Without limiting the generality of the foregoing (x) the
Company acknowledges and agrees that any violation of any of the restrictions
set forth in the preceding sentence by any Representative of any of the Acquired
Companies, whether or not such Representative is purporting to act on behalf of
any of the Acquired Companies, shall be deemed to constitute a breach of this
Section 4.3 by the Company, and (y) Parent acknowledges and agrees that the
taking of any action permitted by and in accordance with this Section 4.3(a)
shall not constitute a breach of this Agreement.
(b) The Company shall promptly (and in no event later than 24
hours after receipt of any Acquisition Proposal, any inquiry or indication of
interest that could reasonably be expected to lead to an Acquisition Proposal or
any request for nonpublic information) advise Parent orally and in writing of
any Acquisition Proposal, any inquiry or indication of interest that could
reasonably be expected to lead to an Acquisition Proposal or any request for
nonpublic information relating to any of the Acquired Companies (including the
identity of the Person making or submitting such Acquisition Proposal, inquiry,
indication of interest or request, and the terms thereof) that is made or
submitted by any Person during the Pre-Closing Period. The Company shall keep
Parent fully informed with respect to the status of any such Acquisition
Proposal, inquiry, indication of interest or request and any modification or
proposed modification thereto.
(c) The Company shall immediately cease and cause to be
terminated any existing discussions with any Person that relate to any
Acquisition Proposal.
(d) The Company agrees not to release or permit the release of
any Person from, or to waive or permit the waiver of any provision of, any
confidentiality, "standstill" or similar agreement to which any of the Acquired
Companies is a party, and will use its best efforts to enforce or cause to be
enforced each such agreement at the request of Parent. The Company also will
promptly request each Person that has executed, within 12 months prior to the
date of this Agreement, a confidentiality agreement in connection with its
consideration of a possible Acquisition Transaction or equity investment to
return all confidential information heretofore furnished to such Person by or on
behalf of any of the Acquired Companies.
4.4 COMPANY STOCKHOLDERS' MEETING.
(a) The Company shall take all action necessary under all
applicable Legal Requirements to call, give notice of and hold a meeting of the
holders of Company Common Stock to vote on the adoption of this Agreement (the
"COMPANY STOCKHOLDERS' MEETING"). The Company may adjourn or postpone the
Company Stockholders' Meeting to the extent that (i) such adjournment or
postponement is necessary to ensure that any necessary supplement or amendment
to the Proxy Statement/Prospectus is provided to the Company's stockholders in
advance of the applicable vote, (ii) additional time is reasonably required to
solicit proxies or (iii)
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as of the time for which the Company Stockholders' Meeting is originally
scheduled there are insufficient shares represented (either in person or by
proxy) necessary to constitute a quorum necessary to conduct the business to be
conducted at the Company Stockholders' Meeting. The Company Stockholders'
Meeting shall be held (on a date selected by the Company in consultation with
Parent) as promptly as practicable after the Form S-4 Registration Statement is
declared effective under the Securities Act. The Company shall ensure that all
proxies solicited in connection with the Company Stockholders' Meeting are
solicited in compliance with all applicable Legal Requirements.
(b) Subject to Section 4.4(c): (i) the Proxy
Statement/Prospectus shall include a statement to the effect that the Board of
Directors of the Company recommends that the Company's stockholders vote to
adopt this Agreement at the Company Stockholders' Meeting (the recommendation of
the Company's Board of Directors that the Company's stockholders vote to adopt
this Agreement being referred to as the "COMPANY BOARD RECOMMENDATION"); and
(ii) the Company Board Recommendation shall not be withdrawn or modified in a
manner adverse to Parent, and no resolution by the Board of Directors of the
Company or any committee thereof to withdraw or modify the Company Board
Recommendation in a manner adverse to Parent shall be adopted or proposed.
(c) Notwithstanding anything to the contrary contained in
Section 4.4(b), at any time prior to the Required Company Stockholder Approval,
the Company Board Recommendation may be withdrawn or modified in a manner
adverse to Parent if: (i) an unsolicited, bona fide written offer for an
Acquisition Transaction involving the acquisition (whether by way of merger,
consolidation, share exchange, business combination, issuance of securities,
acquisition of securities, tender offer, exchange offer or other similar
transaction) of more than 50% of the outstanding voting securities of the
Company or the sale, lease (other than in the ordinary course of business),
exchange, transfer, license (other than in the ordinary course of business),
acquisition or disposition of more than 50% of the business or assets of the
Company is made to the Company and is not withdrawn; (ii) the Company provides
Parent with at least two business days prior notice of any meeting of the
Company's Board of Directors at which such Board of Directors will consider and
determine whether such offer for such an Acquisition Transaction is a Superior
Offer; (iii) the Company's Board of Directors determines in good faith (based
upon a written opinion of an independent financial advisor of nationally
recognized reputation) that such offer for such an Acquisition Transaction
constitutes a Superior Offer; (iv) the Company's Board of Directors determines
in good faith, after having taken into account the advice of the Company's
outside legal counsel, that, in light of such Superior Offer, the withdrawal or
modification of the Company Board Recommendation is required in order for the
Company's Board of Directors to comply with its fiduciary obligations to the
Company's stockholders under applicable law; (v) the Company Board
Recommendation is not withdrawn or modified in a manner adverse to Parent at any
time within two business days after Parent receives written notice from the
Company confirming that the Company's Board of Directors has determined that
such offer for such an Acquisition Transaction is a Superior Offer; and (vi)
neither the Company nor any of its Representatives shall have violated in any
material respect any of the restrictions set forth in Section 4.3.
(d) The Company's obligation to call, give notice of and hold
the Company Stockholders' Meeting in accordance with Section 4.4(a) shall not be
limited or otherwise
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affected by the commencement, disclosure, announcement or submission of any
Superior Offer or other Acquisition Proposal, or by any withdrawal or
modification of the Company Board Recommendation.
4.5 LETTER OF THE COMPANY'S ACCOUNTANTS. The Company shall use
commercially reasonable efforts to cause to be delivered to Parent a letter of
Ernst & Young LLP, dated no more than two business days before the date on which
the Form S-4 Registration Statement becomes effective, that is customary in
scope and substance for letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4 Registration
Statement.
4.6 AFFILIATES. Not less than thirty days prior to the Effective Time,
the Company shall identify all Affiliates and shall use commercially reasonable
efforts to cause each Affiliate, other than those Persons listed in Exhibit D,
to enter into an Affiliate Agreement prior to the Effective Time.
SECTION 5. ADDITIONAL COVENANTS OF THE PARTIES.
5.1 REGISTRATION STATEMENT; PROXY STATEMENT/PROSPECTUS.
(a) As promptly as practicable after the date of this Agreement,
Parent and the Company shall prepare and cause to be filed with the SEC the
Proxy Statement/Prospectus and Parent shall prepare and cause to be filed with
the SEC the Form S-4 Registration Statement, in which the Proxy
Statement/Prospectus will be included as a prospectus. Each of Parent and the
Company shall use commercially reasonable efforts to cause the Form S-4
Registration Statement and the Proxy Statement/Prospectus to comply with the
rules and regulations promulgated by the SEC, to respond promptly to any
comments of the SEC or its staff and to have the Form S-4 Registration Statement
declared effective under the Securities Act as promptly as practicable after it
is filed with the SEC. The Company will use commercially reasonable efforts to
cause the Proxy Statement/Prospectus to be mailed to the Company's stockholders
as promptly as practicable after the Form S-4 Registration Statement is declared
effective under the Securities Act. The Company shall promptly furnish to Parent
all information concerning the Acquired Companies and the Company's stockholders
that may be required or reasonably requested in connection with any action
contemplated by this Section 5.1. If any event relating to any of the Acquired
Companies occurs, or if the Company becomes aware of any information, that
should be disclosed in an amendment or supplement to the Form S-4 Registration
Statement or the Proxy Statement/Prospectus, then the Company shall promptly
inform Parent thereof and the Company and Parent shall cooperate in filing such
amendment or supplement with the SEC and, if appropriate, in mailing such
amendment or supplement to the stockholders of the Company.
(b) Prior to the Effective Time, Parent shall use commercially
reasonable efforts to obtain all regulatory approvals needed to ensure that the
Parent Common Stock to be issued in the Merger will be registered or qualified
under the securities law of every jurisdiction of the United States in which any
registered holder of Company Common Stock has an address of record on the record
date for determining the stockholders entitled to notice of and to vote at the
Company Stockholders' Meeting; provided, however, that Parent shall not be
required (i) to
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qualify to do business as a foreign corporation in any jurisdiction in which it
is not now qualified or (ii) to file a general consent to service of process in
any jurisdiction.
(c) If, between the date of this Agreement and the Closing, the
trading price of the Parent Common Stock declines and, as a result of such
decline, Parent is required to issue additional shares of Parent Common Stock
such that the approval of the stockholders of Parent with respect to the
issuance of the shares of Parent Common Stock in the Merger is required by
applicable Nasdaq rules, Parent shall use commercially reasonable efforts to
obtain such stockholder approval, and the parties hereto shall act in good faith
to negotiate an appropriate amendment to this Agreement (which would include,
among other provisions, provisions permitting either party to refuse to
consummate the Merger if such Parent stockholder approval is not obtained) to
reflect that such a vote is required.
5.2 REGULATORY APPROVALS. Each party shall use commercially reasonable
efforts to file, as soon as practicable after the date of this Agreement, all
notices, reports and other documents required to be filed by such party with any
Governmental Body with respect to the Merger and the other transactions
contemplated by this Agreement, and to submit promptly any additional
information requested by any such Governmental Body. Without limiting the
generality of the foregoing, the Company and Parent shall, promptly after the
date of this Agreement, prepare and file the notifications required under the
HSR Act and any applicable foreign antitrust laws or regulations in connection
with the Merger. The Company and Parent shall respond as promptly as practicable
to (i) any inquiries or requests received from the Federal Trade Commission or
the Department of Justice for additional information or documentation and (ii)
any inquiries or requests received from any state attorney general, foreign
antitrust authority or other Governmental Body in connection with antitrust or
related matters. Each of the Company and Parent shall (1) give the other party
prompt notice of the commencement or threat of commencement of any Legal
Proceeding by or before any Governmental Body with respect to the Merger or any
of the other transactions contemplated by this Agreement, (2) keep the other
party informed as to the status of any such Legal Proceeding or threat, and (3)
promptly inform the other party of any communication to or from the Federal
Trade Commission, the Department of Justice or any other Governmental Body
regarding the Merger. Except as may be prohibited by any Governmental Body or by
any Legal Requirement, the Company and Parent will consult and cooperate with
one another, and will consider in good faith the views of one another, in
connection with any analysis, appearance, presentation, memorandum, brief,
argument, opinion or proposal made or submitted in connection with any Legal
Proceeding under or relating to the HSR Act or any other foreign, federal or
state antitrust or fair trade law. In addition, except as may be prohibited by
any Governmental Body or by any Legal Requirement, in connection with any Legal
Proceeding under or relating to the HSR Act or any other foreign, federal or
state antitrust or fair trade law or any other similar Legal Proceeding, each of
the Company and Parent will permit authorized Representatives of the other party
to be present at each meeting or conference relating to any such Legal
Proceeding and to have access to and be consulted in connection with any
document, opinion or proposal made or submitted to any Governmental Body in
connection with any such Legal Proceeding. At the request of Parent, the Company
shall agree to divest, sell, dispose of, hold separate or otherwise take or
commit to take any action that limits its freedom of action with respect to its
or its Subsidiaries' ability to retain, any of the businesses, product lines or
assets of the Company or any of its Subsidiaries, provided that any such action
is conditioned upon the consummation of the Merger.
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5.3 STOCK OPTIONS.
(a) Subject to Section 5.3(b), at the Effective Time, all rights
with respect to Company Common Stock under each Company Option then outstanding
shall be converted into and become rights with respect to Parent Common Stock,
and Parent shall assume each such Company Option (an "Assumed Option") in
accordance with the requirements of Section 424(a) of the Code (as in effect as
of the date of this Agreement) and the terms of the stock option plan under
which it was issued and the stock option agreement by which it is evidenced.
From and after the Effective Time, (i) each Assumed Option may be exercised
solely for shares of Parent Common Stock, (ii) the number of shares of Parent
Common Stock subject to each such Assumed Option shall be equal to the number of
shares of Company Common Stock subject to the Company Option immediately prior
to the Effective Time multiplied by the Exchange Ratio, rounding down to the
nearest whole share, (iii) the per share exercise price under each Assumed
Option shall be adjusted by dividing the per share exercise price under such
Company Option by the Exchange Ratio and rounding up to the nearest cent and
(iv) any restriction on the exercise of any such Company Option shall continue
in full force and effect and the term, exercisability, vesting schedule and
other provisions of such Company Option shall otherwise remain unchanged;
provided, however, that each Assumed Option shall, in accordance with its terms,
be subject to further adjustment as appropriate to reflect any stock split,
stock dividend, reverse stock split, reclassification, recapitalization or other
similar transaction subsequent to the Effective Time. It is the intention of the
parties that each Assumed Option shall qualify, immediately after the Effective
Time, as incentive stock options under Section 422 of the Code to the same
extent those options qualified as such incentive stock options immediately prior
to the Effective Time. Within 20 business days after the Effective Time, Parent
shall issue to each person who, immediately after the Effective Time, was a
holder of an Assumed Option a document in form and substance reasonably
satisfactory to the Company evidencing the foregoing assumption of such Company
Option by Parent.
(b) Notwithstanding anything to the contrary contained in this
Section 5.3, in lieu of assuming outstanding Company Options in accordance with
Section 5.3(a), Parent may, at its election, cause such outstanding Company
Options to be replaced by issuing substantially equivalent replacement stock
options in substitution therefor, which replacement stock options will include
equivalent terms relating to acceleration, vesting and the effect of a change in
control. Nothing in this Section 5.3(b) shall be construed to eliminate any
vested right of a holder of any Company Option.
(c) As of the Effective Time, the Company's Employee Stock
Purchase Plan shall be terminated. The rights of participants in the Employee
Stock Purchase Plan with respect to any offering period then underway under the
Employee Stock Purchase Plan shall be determined by treating the last business
day prior to the Effective Time as the last day of such offering period and by
making such other pro-rata adjustments as may be necessary to reflect the
shortened offering period but otherwise treating such shortened offering period
as a fully effective and completed offering period for all purposes under the
Employee Stock Purchase Plan. Prior to the Effective Time, the Company shall
take commercially reasonable actions (including, if appropriate, amending the
terms of the Employee Stock Purchase Plan) that are necessary to give effect to
the transactions contemplated by this Section 5.3(c).
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(d) Parent agrees that all employees of the Acquired Companies
who continue employment with Parent, the Surviving Corporation or any Subsidiary
of the Surviving Corporation after the Effective Time ("Continuing Employees")
shall be eligible to continue to participate in the Surviving Corporation's
health and welfare benefit plans and 401(k) profit-sharing plan; provided,
however, that (i) nothing in this Section 5.3(d) or elsewhere in this Agreement
shall limit the right of Parent or the Surviving Corporation to amend or
terminate any such health or welfare benefit plan or 401(k) profit-sharing plan
at any time, and (ii) if Parent or the Surviving Corporation terminates any such
health or welfare benefit plan or 401(k) profit-sharing plan, then (upon
expiration of any appropriate transition period and subject to the other
provisions of Parent's health or welfare benefit plans or 401(k) profit-sharing
plan), the Continuing Employees shall be eligible to participate in Parent's
health and welfare benefit plans and 401(k) profit-sharing plan, to
substantially the same extent as similarly situated employees of Parent. To the
extent permitted by law and the terms of Parent's health and welfare benefit
plans and 401(k) profit-sharing plan, Parent will provide each Continuing
Employee with full credit for service as an employee of the Acquired Companies
prior to the Effective Time for purposes of eligibility, vesting and
determination of the level of benefits under any such health or welfare benefit
plan or 401(k) profit-sharing plan of Parent. Nothing in this Section 5.3(d) or
elsewhere in this Agreement shall be construed to create a right in any employee
to employment with Parent, the Surviving Corporation or any other Subsidiary of
Parent and the employment of each Continuing Employee shall be "at will"
employment.
(e) The Company agrees to take (or cause to be taken) all actions
necessary or appropriate to terminate, effective immediately prior to the
Effective Time, any employee benefit plan sponsored by any of the Acquired
Companies (or in which any of the Acquired Companies participate) that contains
a cash or deferred arrangement intended to qualify under Section 401(k) of the
Code.
5.4 FORM S-8. Parent agrees to file a registration statement on Form S-8
for the shares of Parent Common Stock issuable with respect to Assumed Options
as soon as reasonably practical (and in any event within 15 days) after the
Effective Time.
5.5 INDEMNIFICATION OF OFFICERS AND DIRECTORS.
(a) For a period of six years after the Effective Time, Parent
and the Surviving Corporation shall (i) indemnify and hold harmless (and,
subject to customary undertakings, provide advancement of expenses to) the
directors and officers of the Company and those Persons serving, at the request
of the Company, as an officer or director of another Person, for acts and
omissions occurring prior to the Effective Time, as provided in the Company's
Bylaws (as in effect as of the date of this Agreement) and as provided in any
indemnification agreements between the Company and said Persons (as in effect as
of the date of this Agreement), and (ii) include and cause to be maintained in
effect in the certificate of incorporation and bylaws of the Surviving
Corporation (or any successor thereto) provisions regarding limitation of
liability of directors, indemnification of officers and directors and
advancement of expenses which are no less advantageous to the Persons referred
to in clause "(i)" of this Section 5.5(a) than the provisions existing as of the
date of this Agreement.
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(b) From the Effective Time until the sixth anniversary of the
Effective Time, Parent shall, or shall cause the Surviving Corporation to,
maintain or cause to be maintained in effect, for the benefit of the current
directors and officers of the Company with respect to acts or omissions
occurring at or prior to the Effective Time, the current policies of directors'
and officers' liability insurance maintained by the Company as of the date of
this Agreement (the "EXISTING POLICY"); provided, however, that Parent or the
Surviving Corporation may substitute for the Existing Policy a policy or
policies with coverage of at least the same amounts and containing terms and
conditions which are no less favorable to the insured in the aggregate than the
terms and conditions of the Existing Policy; provided, further, that (i) in no
event shall Parent or the Surviving Corporation be required to expend an amount
in excess of 150% of the amount of the last annual premium paid by the Company
prior to the date of this Agreement for the Existing Policy, and (ii) if the
annual premiums of such insurance coverage exceed the maximum amount referred to
in clause "(i)" of this Section 5.5(b), the Surviving Corporation shall be
obligated to obtain a policy with the greatest coverage available for a cost not
exceeding such maximum.
5.6 REORGANIZATION. Each of the Company and Parent agrees not to take
any action either prior to or after the Effective Time that could reasonably be
expected to cause the Merger to fail to qualify as a reorganization under
Section 368 of the Code.
5.7 ADDITIONAL AGREEMENTS.
(a) Subject to Section 5.7(b), Parent and the Company shall use
commercially reasonable efforts to take, or cause to be taken, all actions
necessary to consummate the Merger and make effective the other transactions
contemplated by this Agreement. Without limiting the generality of the
foregoing, but subject to Section 5.7(b), each party to this Agreement (i) shall
make all filings (if any) and give all notices (if any) required to be made and
given by such party in connection with the Merger and the other transactions
contemplated by this Agreement, (ii) shall use commercially reasonable efforts
to obtain each Consent (if any) required to be obtained (pursuant to any
applicable Legal Requirement or Contract, or otherwise) by such party in
connection with the Merger or any of the other transactions contemplated by this
Agreement, and (iii) shall use commercially reasonable efforts to lift any
restraint, injunction or other legal bar to the Merger. The Company shall
promptly deliver to Parent a copy of each such filing made, each such notice
given and each such Consent obtained by the Company during the Pre-Closing
Period.
(b) Notwithstanding anything to the contrary contained in this
Agreement, Parent shall not have any obligation under this Agreement: (i) to
dispose of or transfer or cause any of its Subsidiaries to dispose of or
transfer any assets, or to commit to cause any of the Acquired Companies to
dispose of any assets; (ii) to discontinue or cause any of its Subsidiaries to
discontinue offering any product or service, or to commit to cause any of the
Acquired Companies to discontinue offering any product or service; (iii) to
license or otherwise make available, or cause any of its Subsidiaries to license
or otherwise make available, to any Person, any technology, software or other
Acquired Company Proprietary Asset, or to commit to cause any of the Acquired
Companies to license or otherwise make available to any Person any technology,
software or other Proprietary Asset; (iv) to hold separate or cause any of its
Subsidiaries to hold separate any assets or operations (either before or after
the Closing Date), or
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to commit to cause any of the Acquired Companies to hold separate any assets or
operations; (v) to make or cause any of its Subsidiaries to make any commitment
(to any Governmental Body or otherwise) regarding its future operations or the
future operations of any of the Acquired Companies; or (vi) to contest any Legal
Proceeding relating to the Merger if Parent determines in good faith, based upon
advice of outside counsel, that contesting such Legal Proceeding is not
reasonably likely to be successful or is likely to result in material costs to
Parent.
5.8 CONFIDENTIALITY. The parties acknowledge that the Company and Parent
have previously executed a Mutual Non-Disclosure Agreement, dated as of March
22, 2000 (the "CONFIDENTIALITY AGREEMENT"), which Confidentiality Agreement will
continue in full force and effect in accordance with its terms.
5.9 DISCLOSURE. Unless otherwise required by applicable law or by
obligations pursuant to any listing agreement with or rules of any securities
exchange, Parent and the Company shall consult with each other before issuing
any other press release or otherwise making any public statement with respect to
the Merger or any of the other transactions contemplated by this Agreement.
5.10 TAX MATTERS.
(a) At or prior to the filing of the Form S-4 Registration
Statement, Parent and Merger Sub and the Company shall execute and deliver to
Cooley Godward LLP and to Brobeck Phleger & Harrison LLP tax representation
letters substantially in the forms attached as Exhibit H-1 and H-2, as
applicable;
(b) Parent, Merger Sub and the Company shall each confirm to
Cooley Godward LLP and to Brobeck Phleger & Harrison LLP the accuracy and
completeness as of the Effective Time of the tax representation letters
delivered pursuant to Section 5.10(a);
(c) Parent, Merger Sub and the Company shall use commercially
reasonable efforts to cause the Merger to qualify as a reorganization under
Section 368(a)(1) of the Code; and
(d) Following delivery of the tax representation letters pursuant
to Section 5.10(a), each of Parent and the Company shall use its commercially
reasonable efforts to cause Cooley Godward LLP and Brobeck Phleger & Harrison
LLP, respectively, to deliver promptly to it a legal opinion satisfying the
requirements of Item 601 of Regulation S-K promulgated under the Securities Act.
In rendering such opinions, each of such counsel shall be entitled to rely on
the tax representation letters delivered pursuant to Section 5.10(a).
5.11 NASDAQ LISTING. Parent shall use commercially reasonable efforts to
have the shares of Parent Common Stock issuable to the stockholders of the
Company pursuant to the Agreement and such other shares required to be reserved
for issuance in connection with the Merger authorized for listing on Nasdaq,
subject to official notice of issuance, prior to the Effective Time.
5.12 ACCESS TO INFORMATION. During the Pre-Closing Period, Parent shall,
and shall cause its Representatives, to: (a) provide the Company and its
Representatives with reasonable
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access at all reasonable times to Parent's Representatives, personnel and assets
and to all existing books, records, Tax Returns, work papers and other documents
and information relating to Parent and its Subsidiaries; and (b) provide the
Company and its Representatives with such copies of the existing books, records,
Tax Returns, work papers and other documents and information relating to Parent
and its Subsidiaries, and with such additional financial, operating and other
data and information regarding Parent and its Subsidiaries, as the Company may
reasonably request. Without limiting the generality of the foregoing, during the
Pre-Closing Period, Parent shall promptly provide the Company with copies of any
notice, report or other document filed with or sent to any Governmental Body in
connection with the Merger or any of the other transactions contemplated by this
Agreement.
5.13 ADVICE OF CHANGES. During the Pre-Closing Period, Parent shall
promptly notify the Company in writing of: (a) the discovery by Parent of any
event, condition, fact or circumstance that occurred or existed on or prior to
the date of this Agreement and that caused or constitutes a material inaccuracy
in any representation or warranty made by Parent in this Agreement; (b) any
event, condition, fact or circumstance that occurs, arises or exists after the
date of this Agreement and that would cause or constitute a material inaccuracy
in any representation or warranty made by Parent in this Agreement if (i) such
representation or warranty had been made as of the time of the occurrence,
existence or discovery of such event, condition, fact or circumstance, or (ii)
such event, condition, fact or circumstance had occurred, arisen or existed on
or prior to the date of this Agreement; (c) any event, condition, fact or
circumstance hereafter arising which, if existing or occurring at the date of
this Agreement, would have been required to be set forth or described in the
Parent Disclosure Letter; (d) any material breach of any covenant or obligation
of Parent; and (e) any event, condition, fact or circumstance that would make
the timely satisfaction of any of the conditions set forth in Section 7
impossible or unlikely or that has had or would reasonably be expected to have a
Material Adverse Effect on Parent. Without limiting the generality of the
foregoing, Parent shall promptly advise the Company in writing of any material
Legal Proceeding or material claim threatened, commenced or asserted against or
with respect to Parent. No notification given to the Company pursuant to this
Section 5.13 shall limit or otherwise affect any of the representations,
warranties, covenants or obligations of Parent contained in this Agreement.
SECTION 6. CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND MERGER SUB.
The obligations of Parent and Merger Sub to effect the Merger and
otherwise consummate the transactions contemplated by this Agreement are subject
to the satisfaction, at or prior to the Closing, of each of the following
conditions:
6.1 ACCURACY OF REPRESENTATIONS.
The representations and warranties of the Company contained in this
Agreement shall be accurate in all respects as of the Closing Date as if made on
and as of the Closing Date (except to the extent that such representations and
warranties speak as of another date, in which case such representations and
warranties shall be true and correct as of such other date), except that any
inaccuracies in such representations and warranties will be disregarded if the
circumstances giving rise to all such inaccuracies (considered collectively) do
not constitute, and would not
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reasonably be expected to have, a Material Adverse Effect on the Acquired
Companies; provided, however, that, for purposes of determining the accuracy of
such representations and warranties, (i) all "Material Adverse Effect"
qualifications and other materiality qualifications contained in such
representations and warranties shall be disregarded and (ii) any update of or
modification to the Company Disclosure Letter made or purported to have been
made after the date of this Agreement shall be disregarded.
6.2 PERFORMANCE OF COVENANTS. Each covenant or obligation that the
Company is required to comply with or to perform at or prior to the Closing
shall have been complied with and performed in all material respects.
6.3 EFFECTIVENESS OF REGISTRATION STATEMENT. The Form S-4 Registration
Statement shall have become effective in accordance with the provisions of the
Securities Act, and no stop order shall have been issued, and no proceeding for
that purpose shall have been initiated or be threatened, by the SEC with respect
to the Form S-4 Registration Statement.
6.4 STOCKHOLDER APPROVAL. The Required Company Stockholder Approval
shall have been obtained.
6.5 CONSENTS. All Consents identified in Part 6.5 of the Company
Disclosure Letter shall have been obtained and shall be in full force and
effect, and all other Consents required to be obtained in connection with the
Merger and the other transactions contemplated by this Agreement shall have been
obtained and shall be in full force and effect, except where the failure to
obtain such Consents has not had and would not reasonably be expected to have a
Material Adverse Effect on the Acquired Companies. All material authorizations,
consents, orders or approvals of, or declarations or filings with, or
expirations of waiting periods imposed by, any Governmental Body required to be
obtained in connection with the Merger and the other transactions contemplated
by this Agreement shall have been obtained or made or shall have expired and
shall be in full force and effect.
6.6 AGREEMENTS AND DOCUMENTS. Parent and Merger Sub shall have received
the following agreements and documents, each of which shall be in full force and
effect:
(a) Affiliate Agreements, executed by each Affiliate, as
contemplated by Section 4.6;
(b) Employment and Noncompetition Agreements in the form of
Exhibit I, executed by each Person identified on Schedule 6.6(b);
(c) a letter from Ernst & Young LLP, dated as of the Closing Date
and addressed to Parent, in form and substance reasonably acceptable to Parent,
updating the letter referred to in Section 4.5;
(d) a legal opinion of Cooley Godward LLP, dated as of the
Closing Date and addressed to Parent, to the effect that the Merger will
constitute a reorganization within the meaning of Section 368 of the Code (it
being understood that in rendering such opinion, Cooley Godward LLP may rely
upon the tax representation letters referred to in Section 5.10);
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(e) a certificate executed on behalf of the Company by its Chief
Executive Officer confirming that the conditions set forth in Sections 6.1, 6.2,
6.5, 6.7 and 6.11 have been duly satisfied;
(f) the written resignations of all directors of the Company,
effective as of the Effective Time (it being understood that any such
resignation shall not be deemed to be a voluntary termination of employment
under existing employment, severance or similar agreements); and
(g) the written resignations of all directors and officers of
each of the Acquired Companies (other than the Company), effective as of the
Effective Time.
6.7 NO MATERIAL ADVERSE EFFECT. Since the date of this Agreement, there
shall not have occurred any Material Adverse Effect on the Acquired Companies,
and no event shall have occurred or circumstance shall exist that, in
combination with any other events or circumstances, could reasonably be expected
to have a Material Adverse Effect on the Acquired Companies.
6.8 HSR ACT. The waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been terminated.
6.9 LISTING. The shares of Parent Common Stock to be issued in the
Merger shall have been approved for listing on Nasdaq, subject to notice of
issuance.
6.10 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the Merger
shall have been issued by any court of competent jurisdiction or other
Governmental Body and remain in effect, and there shall not be any Legal
Requirement enacted or deemed applicable to the Merger that makes consummation
of the Merger illegal.
6.11 NO GOVERNMENTAL LITIGATION. There shall not be pending or
threatened any Legal Proceeding in which a Governmental Body (other than a court
or similar tribunal) is or is threatened to become a party or is otherwise
involved, and neither Parent nor the Company shall have received any
communication from any Governmental Body (other than a court or similar
tribunal)in which such Governmental Body indicates the possibility of commencing
any Legal Proceeding or taking any other action: (a) challenging or seeking to
restrain or prohibit the consummation of the Merger or any of the other
transactions contemplated by this Agreement; (b) relating to the Merger and
seeking to obtain from Parent or any of its subsidiaries, any damages or other
relief that may be material to Parent; (c) seeking to prohibit or limit in any
material respect Parent's ability to vote, receive dividends with respect to or
otherwise exercise ownership rights with respect to the stock of the Surviving
Corporation; (d) which would materially and adversely affect the right of
Parent, the Surviving Corporation or any Subsidiary of Parent to own the assets
or operate the business of the Acquired Companies; or (e) seeking to compel
Parent or the Company, or any subsidiary of Parent or the Company, to dispose of
or hold separate any material assets, as a result of the Merger or any of the
other transactions contemplated by this Agreement.
46.
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SECTION 7. CONDITIONS PRECEDENT TO OBLIGATION OF THE COMPANY.
The obligation of the Company to effect the Merger and otherwise
consummate the transactions contemplated by this Agreement are subject to the
satisfaction, at or prior to the Closing, of the following:
7.1 ACCURACY OF REPRESENTATIONS. The representations and warranties of
Parent and Merger Sub contained in this Agreement shall be accurate in all
respects as of the Closing Date as if made on and as of the Closing Date (except
to the extent that such representations and warranties speak as of another date,
in which case such representations and warranties shall be true and correct as
of such other date), except that any inaccuracies in such representations and
warranties will be disregarded if the circumstances giving rise to all such
inaccuracies (considered collectively) do not constitute, and would not
reasonably be expected to have, a Material Adverse Effect on Parent; provided,
however, that for purposes of determining the accuracy of such representations
and warranties, (i) all "Material Adverse Effect" qualifications and other
materiality qualifications contained in such representations and warranties
shall be disregarded and (ii) any update of or modification to the Parent
Disclosure Letter made or purported to have been made after the date of this
Agreement shall be disregarded.
7.2 PERFORMANCE OF COVENANTS. All of the covenants and obligations that
Parent and Merger Sub are required to comply with or to perform at or prior to
the Closing shall have been complied with and performed in all material
respects.
7.3 EFFECTIVENESS OF REGISTRATION STATEMENT. The Form S-4 Registration
Statement shall have become effective in accordance with the provisions of the
Securities Act, and no stop order shall have been issued, and no proceeding for
that purpose shall have been initiated or be threatened, by the SEC with respect
to the Form S-4 Registration Statement.
7.4 STOCKHOLDER APPROVAL. The Required Company Stockholder Approval
shall have been obtained.
7.5 AGREEMENTS AND DOCUMENTS. The Company shall have received the
following agreements and documents, each of which shall be in full force and
effect:
(a) a legal opinion of Brobeck Phleger & Harrison LLP, dated as
of the Closing Date and addressed to the Company, to the effect that the Merger
will constitute a reorganization within the meaning of Section 368 of the Code
(it being understood that, in rendering such opinion, Brobeck Phleger & Harrison
LLP may rely upon tax representation letters including those referred to in
Section 5.10); and
(b) a certificate executed on behalf of Parent by an executive
officer of Parent, confirming that conditions set forth in Sections 7.1, 7.2 and
7.7 have been duly satisfied.
7.6 HSR ACT. The waiting period applicable to the consummation of the
Merger under the HSR Act shall have expired or been terminated. All other
material authorizations, consents, orders or approvals of, or declarations or
filings with, or expirations of waiting periods imposed by, any Governmental
Body required to be obtained in connection with the Merger and
47.
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the other transactions contemplated by this Agreement shall have been obtained
or made or shall have expired and shall be in full force and effect.
7.7 LISTING. The shares of Parent Common Stock to be issued in the
Merger shall have been approved for listing on Nasdaq, subject to notice of
issuance.
7.8 NO RESTRAINTS. No temporary restraining order, preliminary or
permanent injunction or other order preventing the consummation of the Merger by
the Company shall have been issued by any court of competent jurisdiction or
other Governmental Body and remain in effect, and there shall not be any Legal
Requirement enacted or deemed applicable to the Merger that makes consummation
of the Merger by the Company illegal.
SECTION 8. TERMINATION.
8.1 TERMINATION. This Agreement may be terminated prior to the Effective
Time (whether before or after the Required Company Stockholder Approval):
(a) by mutual written consent of the Boards of Directors of
Parent and the Company;
(b) by either Parent or the Company if the Merger shall not have
been consummated by October 31, 2000 (the "End Date") (unless the failure to
consummate the Merger is attributable to a failure on the part of the party
seeking to terminate this Agreement to perform any material obligation required
to be performed by such party at or prior to the Effective Time); provided,
however, that if, between the date of this Agreement and the Closing, the
trading price of the Parent Common Stock declines and, as a result of such
decline, Parent is required to issue additional shares of Parent Common Stock
such that the approval of the stockholders of Parent with respect to the
issuance of the shares of Parent Common Stock in the Merger is required by
applicable Nasdaq rules, either party may in its discretion extend the End Date
for up to 90 days;
(c) by either Parent or the Company if a court of competent
jurisdiction or other Governmental Body shall have issued a final and
non-appealable order, decree or ruling, or shall have taken any other action,
having the effect of permanently restraining, enjoining or otherwise prohibiting
the Merger;
(d) by either Parent or the Company, if (i) the Company
Stockholders' Meeting shall have been held (either on the date for which such
meeting was originally scheduled or pursuant to any adjournment or postponement
thereof) and (ii) the Required Company Stockholder Approval was not obtained at
such meeting (provided that the right to terminate this Agreement under this
Section 8.1(d) shall not be available to the Company where the failure to obtain
the Required Company Stockholder Approval shall have been caused by the action
or failure to act of the Company and such action or failure to act constitutes a
material breach by the Company of this Agreement);
(e) by Parent (at any time prior to Required Company Stockholder
Approval) if a Triggering Event shall have occurred;
48.
<PAGE> 54
(f) by Parent if (i) any of the Company's representations and
warranties contained in this Agreement shall have become inaccurate as of a date
subsequent to the date of this Agreement (as if made on such subsequent date),
such that the condition set forth in Section 6.1 would not be satisfied (it
being understood that, for purposes of determining the accuracy of such
representations and warranties, (A) all "Material Adverse Effect" qualifications
and other materiality qualifications, and any similar qualifications, contained
in such representations and warranties shall be disregarded and (B) any update
of or modification to the Company Disclosure Letter made or purported to have
been made after the date of this Agreement shall be disregarded), or (ii) any of
the Company's covenants contained in this Agreement shall have been breached
such that the condition set forth in Section 6.2 would not be satisfied;
provided, however, that if an inaccuracy in the Company's representations and
warranties or a breach of a covenant by the Company is curable by the Company
and the Company is continuing to exercise commercially reasonable efforts to
cure such inaccuracy or breach, then Parent may not terminate this Agreement
under this Section 8.1(f) on account of such inaccuracy or breach; or
(g) by the Company if (i) any of Parent's representations and
warranties contained in this Agreement shall have become inaccurate as of a date
subsequent to the date of this Agreement (as if made on such subsequent date),
such that the condition set forth in Section 7.1 would not be satisfied (it
being understood that, for purposes of determining the accuracy of such
representations and warranties, (A) all "Material Adverse Effect" qualifications
and other materiality qualifications, and any similar qualifications, contained
in such representations and warranties shall be disregarded and (B) any update
of or modification to the Parent Disclosure Letter made or purported to have
been made after the date of this Agreement shall be disregarded), or (ii) if any
of Parent's covenants contained in this Agreement shall have been breached such
that the condition set forth in Section 7.2 would not be satisfied; provided,
however, that if an inaccuracy in Parent's representations and warranties or a
breach of a covenant by Parent is curable by Parent and Parent is continuing to
exercise commercially reasonable efforts to cure such inaccuracy or breach, then
the Company may not terminate this Agreement under this Section 8.1(g) on
account of such inaccuracy or breach.
8.2 NOTICE OF TERMINATION; EFFECT OF TERMINATION. Any termination under
Section 8.1 above will be effective immediately upon the delivery of written
notice of the terminating party to the other parties hereto. In the event of the
termination of this Agreement as provided in Section 8.1, this Agreement shall
be of no further force or effect and no party shall have any liability or
obligation arising out of or otherwise by virtue of this Agreement; provided,
however, that (i) this Section 8.2, Section 8.3 and Section 9 shall survive the
termination of this Agreement and shall remain in full force and effect, (ii)
the termination of this Agreement shall not relieve any party from any liability
for any intentional breach of this Agreement and (iii) no termination of this
Agreement shall affect the obligations of the parties contained in the
Confidentiality Agreement, all of which obligations shall survive termination of
this Agreement in accordance with their terms.
8.3 EXPENSES; TERMINATION FEES.
(a) Except as set forth in this Section 8.3, all fees and
expenses incurred in connection with this Agreement and the transactions
contemplated by this Agreement shall be paid by the party incurring such
expenses, whether or not the Merger is consummated; provided,
49.
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however, that Parent and the Company shall share equally all fees and expenses,
other than attorneys' and accountants' fees and expenses, incurred in connection
with the printing and filing of the Form S-4 Registration Statement and the
Proxy Statement/Prospectus and any amendments or supplements thereto.
(b) If this Agreement is terminated by Parent pursuant to Section
8.1(e) then the Company shall pay to Parent (at the time specified in Section
8.3(c)), a nonrefundable fee in the amount of $5,500,000 (the "TERMINATION FEE")
in cash within three days of such termination.
(c) If this Agreement is terminated by Parent or the Company
pursuant to Section 8.1(d) and, after the date of this Agreement and prior to
the time of such termination, an Acquisition Proposal shall have been disclosed,
announced, commenced, submitted or made, then the Company shall pay to Parent in
cash a nonrefundable fee in the amount of $1,833,333 (the "Initial Termination
Fee"), such fee to be paid prior to such termination (in the case of termination
by the Company) or within two days after such termination (in the case of
termination by Parent). If, within 365 days after the payment of the Initial
Termination Fee, an Acquisition Transaction (other than with Parent or one of
Parent's Affiliates) is consummated, or the Company enters into a definitive
agreement with respect to an Acquisition Transaction (other than with Parent or
one of Parent's Affiliates), the Company shall pay to Parent in cash an
additional nonrefundable fee of $3,666,667, such fee to be paid at or prior to
the consummation of such Acquisition Transaction or the entering into of such
definitive agreement, whichever is earlier. For purposes of this Section 8.3(c),
the term "Acquisition Transaction" shall have the meaning assigned to it in
Exhibit A except that all references to 20% shall be deemed to be references to
30%),
SECTION 9. MISCELLANEOUS PROVISIONS.
9.1 AMENDMENT. This Agreement may be amended with the approval of the
respective boards of directors of the Company and Parent at any time (whether
before or after the Required Company Stockholder Approval is obtained);
provided, however, that after any such Required Company Stockholder Approval is
obtained, no amendment shall be made which by law or NASD regulation requires
further approval of the stockholders of the Company without the further approval
of such stockholders. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
9.2 WAIVER.
(a) No failure on the part of any party to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
party in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy.
(b) No party shall be deemed to have waived any claim arising out
of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of
50.
<PAGE> 56
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of such party; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
9.3 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties contained in this Agreement or in any certificate
delivered pursuant to this Agreement shall survive the Merger.
9.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This Agreement and
the other agreements referred to herein constitute the entire agreement and
supersede all prior agreements and understandings, both written and oral, among
or between any of the parties with respect to the subject matter hereof and
thereof and is not intended to confer upon any person other than the Company,
Parent and Merger Sub, any rights or remedies hereunder; provided, however,
that, after the Effective Time (a) the stockholders of the Company will be
third-party beneficiaries under this Agreement; (b) the Persons referred to in
Section 5.5(a) and Section 5.5(b) will be third-party beneficiaries under those
Sections, and (c) the Continuing Employees will be third-party beneficiaries
under Section 5.3(d).
9.5 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
9.6 APPLICABLE LAW; JURISDICTION. THIS AGREEMENT SHALL BE GOVERNED BY,
AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF DELAWARE, REGARDLESS
OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS
OF LAWS THEREOF. In any action between any of the parties, arising out of or
relating to this Agreement or any of the transactions contemplated by this
Agreement: (a) each of the parties irrevocably and unconditionally consents and
submits to the exclusive jurisdiction and venue of the state and federal courts
located in the State of Delaware; (b) if any such action is commenced in any
other state or federal court, then, subject to applicable law, no party shall
object to the removal of such action to any federal court located in the State
of Delaware; (c) each of the parties irrevocably waives the right to trial by
jury; and (d) each of the parties irrevocably consents to service of process in
the manner contemplated by Section 9.10.
9.7 DISCLOSURE LETTER. Each of the Company Disclosure Letter and the
Parent Disclosure Letter shall be arranged in separate parts corresponding to
the numbered and lettered sections contained in Sections 2 and 3, respectively,
and the information disclosed in any numbered or lettered part shall be deemed
to relate to and to qualify only the particular representation or warranty set
forth in the corresponding numbered or lettered section in Section 2 or 3,
respectively, and shall not be deemed to relate to or to qualify any other
representation or warranty unless such relationship or qualification is
reasonably apparent.
9.8 ATTORNEYS' FEES. In any action at law or suit in equity to enforce
this Agreement or the rights of any of the parties hereunder, the prevailing
party in such action or suit shall be entitled to receive a reasonable sum for
its attorneys' fees and all other reasonable costs and expenses incurred in such
action or suit.
51.
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9.9 ASSIGNABILITY. This Agreement shall be binding upon, and shall be
enforceable by and inure solely to the benefit of, the parties hereto and their
respective successors and assigns. Neither this Agreement nor any of the
parties' rights hereunder may be assigned by any of the parties without the
prior written consent of the other party, and any attempted assignment of this
Agreement or any of such rights without such consent shall be void and of no
effect.
9.10 NOTICES. Any notice or other communication required or permitted to
be delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received (a) when delivered by hand, or (b)
one business day after sent by internationally recognized courier or express
delivery service (such as Federal Express) or by facsimile (with confirmation of
receipt)), to the address or facsimile telephone number set forth beneath the
name of such party below (or to such other address or facsimile telephone number
as such party shall have specified in a written notice given to the other
parties hereto):
if to Parent: CLARENT CORPORATION
700 Chesapeake Drive
Redwood City, CA 94063
Telephone: (650) 306-7511
Facsimile: (650) 306-7512
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Telephone: (650) 843-5090
Facsimile: (650) 849-7400
Attention: Deborah J. Ludewig
if to Merger Sub: COPPER ACQUISITION SUB, INC.
700 Chesapeake Drive
Redwood City, CA 94063
Telephone: (650) 306-7511
Facsimile: (650) 306-7512
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
Telephone: (650) 843-5090
52.
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Facsimile: (650) 849-7400
Attention: Deborah J. Ludewig
if to the Company: ACT NETWORKS, INC.
26707 W. Agoura Road
Calabasas, CA 91302
Telephone: (818) 871-6400
Facsimile: (818) 871-6405
Attention: Chief Executive Officer
with a copy (which shall not constitute notice) to:
Brobeck, Phleger & Harrison LLP
550 South Hope Street
Los Angeles, California 90071
Telephone: (213) 489-4060
Facsimile: (213) 745-3345
Attention: Richard S. Chernicoff
9.11 COOPERATION. The Company agrees to cooperate in a reasonable manner
with Parent and to execute and deliver such further documents, certificates,
agreements and instruments and to take such other actions as may be reasonably
requested by Parent to evidence or reflect the transactions contemplated by this
Agreement and to carry out the intent and purposes of this Agreement
9.12 HEADING. The headings contained in this Agreement are for reference
purposes only and shall not be used in the construction or interpretation of
this Agreement.
9.13 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 as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner 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 an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the maximum extent possible.
9.14 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
53.
<PAGE> 59
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
(e) A reference to any party to this Agreement or any other
agreement or document shall include such party's successors and permitted
assigns.
(f) A reference to any legislation or to any provision of any
legislation shall include any modifications or re-enactment thereof, any
legislative provision substituted therefor and all regulations and statutory
instruments issued thereunder or pursuant thereto.
54.
<PAGE> 60
IN WITNESS WHEREOF, the parties have caused this AGREEMENT AND PLAN OF
MERGER AND REORGANIZATION to be executed as of the date first above written.
CLARENT CORPORATION
By: /s/ RICHARD J. HEAPS
-------------------------------------
Printed Name: Richard J. Heaps
Title: Chief Operating Officer and Chief
Financial Officer
COPPER ACQUISITION SUB, INC.
By: /s/ RICHARD J. HEAPS
-------------------------------------
Printed Name: Richard J. Heaps
Title: President, Chief Executive
Officer and Chief Financial
Officer
ACT NETWORKS, INC.
By: /s/ ANDRE DE FUSCO
-------------------------------------
Printed Name: Andre de Fusco
Title: President and Chief Executive
Officer
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
SIGNATURE PAGE
<PAGE> 61
EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
ACQUIRED COMPANY CONTRACT. "ACQUIRED COMPANY CONTRACT" shall mean any
Contract: (a) to which any of the Acquired Companies is a party; (b) by which
any of the Acquired Companies or any asset of any of the Acquired Companies is
or may become bound or under which any of the Acquired Companies has, or may
become subject to, any obligation; or (c) under which any of the Acquired
Companies has or may acquire any right or interest.
ACQUIRED COMPANY PROPRIETARY ASSET. "ACQUIRED COMPANY PROPRIETARY ASSET"
shall mean any Proprietary Asset owned by or licensed to any of the Acquired
Companies or otherwise used by any of the Acquired Companies, and material to
the business of any of the Acquired Companies as presently conducted.
ACQUISITION PROPOSAL. "ACQUISITION PROPOSAL" shall mean any offer or
proposal (other than an offer or proposal by Parent) contemplating or otherwise
relating to any Acquisition Transaction.
ACQUISITION TRANSACTION. "ACQUISITION TRANSACTION" shall mean any
transaction or series of related transactions involving:
(a) any merger, consolidation, share exchange, business
combination, issuance of securities, acquisition of securities, tender offer,
exchange offer or other similar transaction (i) in which any of the Acquired
Companies is a constituent corporation, (ii) in which a Person or "group" (as
defined in the Exchange Act) of Persons directly or indirectly acquires the
Company or more than 50% of the Company's business or directly or indirectly
acquires beneficial or record ownership of securities representing more than 20%
of the outstanding securities of any class of voting securities of any of the
Acquired Companies, or (iii) in which any of the Acquired Companies issues
securities representing more than 20% of the outstanding securities of any class
of voting securities of the Company;
(b) any sale, lease (other than in the ordinary course of
business), exchange, transfer, license (other than in the ordinary course of
business), acquisition or disposition of more than 50% of the assets of the
Company; or
(c) any liquidation or dissolution of the Company.
AGREEMENT. "AGREEMENT" shall mean the Agreement and Plan of Merger and
Reorganization to which this Exhibit A is attached, as it may be amended from
time to time.
CLOSING PRICE. "CLOSING PRICE" shall mean the 4:00 p.m. (Eastern Time)
closing price of a share of Parent Common Stock as reported on Nasdaq for the
trading day immediately preceding the day on which the Effective Time occurs.
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COMPANY DISCLOSURE LETTER. "COMPANY DISCLOSURE LETTER" shall mean the
disclosure letter that has been prepared by the Company in accordance with the
requirements of Section 9.7 of the Agreement and that has been delivered by the
Company to Parent on the date of the Agreement and signed by the President of
the Company.
COMPANY COMMON STOCK. "COMPANY COMMON STOCK" shall mean the Common
Stock, $.001 par value per share, of the Company.
CONSENT. "CONSENT" shall mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
CONTRACT. "CONTRACT" shall mean any written, oral or other agreement,
contract, subcontract, lease, understanding, instrument, note, option, warranty,
purchase order, license, sublicense, insurance policy, benefit plan or legally
binding commitment or undertaking of any nature.
ENCUMBRANCE. "ENCUMBRANCE" shall mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, claim, infringement,
interference, option, right of first refusal, preemptive right, community
property interest or restriction of any nature (including any restriction on the
voting of any security, any restriction on the transfer of any security or other
asset, any restriction on the receipt of any income derived from any asset, any
restriction on the use of any asset and any restriction on the possession,
exercise or transfer of any other attribute of ownership of any asset).
ENTITY. "ENTITY" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any company
limited by shares, limited liability company or joint stock company), firm,
society or other enterprise, association, organization or entity.
ENVIRONMENTAL LAW. "ENVIRONMENTAL LAW" shall mean any federal, state,
local or foreign Legal Requirement relating to pollution or protection of human
health or the environment (including ambient air, surface water, ground water,
land surface or subsurface strata), including any law or regulation relating to
emissions, discharges, releases or threatened releases of Materials of
Environmental Concern, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
Materials of Environmental Concern,
EXCHANGE ACT. "EXCHANGE ACT" shall mean the Securities Exchange Act of
1934, as amended, including the rules and regulations promulgated thereunder.
FORM S-4 REGISTRATION STATEMENT. "FORM S-4 REGISTRATION STATEMENT" shall
mean the registration statement on Form S-4 to be filed with the SEC by Parent
in connection with issuance of Parent Common Stock in the Merger, as said
registration statement may be amended prior to the time it is declared effective
by the SEC.
GOVERNMENTAL AUTHORIZATION. "GOVERNMENTAL AUTHORIZATION" shall mean any:
(a) permit, license, certificate, franchise, permission, variance, clearance,
registration, qualification or authorization issued, granted, given or otherwise
made available by or under the authority of
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any Governmental Body or pursuant to any Legal Requirement; or (b) right under
any Contract with any Governmental Body.
GOVERNMENTAL BODY. "GOVERNMENTAL BODY" shall mean any: (a) nation,
state, commonwealth, province, territory, county, municipality, district or
other jurisdiction of any nature; (b) federal, state, local, municipal, foreign
or other government; or (c) governmental or quasi-governmental authority of any
nature (including any governmental division, department, agency, commission,
instrumentality, official, organization, unit, body or Entity and any court or
other tribunal).
HSR ACT. "HSR ACT" shall mean the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
LEGAL PROCEEDING. "LEGAL PROCEEDING" shall mean any action, suit,
litigation, arbitration, proceeding (including any civil, criminal,
administrative, investigative or appellate proceeding), hearing, inquiry, audit,
examination or investigation commenced, brought, conducted or heard by or
before, or otherwise involving, any court or other Governmental Body or any
arbitrator or arbitration panel.
LEGAL REQUIREMENT. "LEGAL REQUIREMENT" shall mean any federal, state,
local, municipal, foreign or other law, statute, constitution, principle of
common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling
or requirement issued, enacted, adopted, promulgated, implemented or otherwise
put into effect by or under the authority of any Governmental Body (or under the
authority of the Nasdaq).
MATERIAL ADVERSE EFFECT. An event, violation, inaccuracy, circumstance
or other matter will be deemed to have a "Material Adverse Effect" on the
Acquired Companies if such event, violation, inaccuracy, circumstance or other
matter (considered together with all other matters that would constitute
exceptions to the representations and warranties of the Company set forth in the
Agreement but for the presence of "Material Adverse Effect" or other materiality
qualifications, or any similar qualifications, in such representations and
warranties) had or could reasonably be expected to have a material adverse
effect on (i) the business, financial condition, capitalization, assets,
liabilities, operations or financial performance of the Acquired Companies taken
as a whole, (ii) the ability of the Company to consummate the Merger or any of
the other transactions contemplated by the Agreement or the Stock Option
Agreement or to perform any of its obligations under the Agreement or the Stock
Option Agreement, or (iii) Parent's ability to vote, receive dividends with
respect to or otherwise exercise ownership rights with respect to the stock of
the Surviving Corporation. An event, violation, inaccuracy, circumstance or
other matter will be deemed to have a "Material Adverse Effect" on Parent if
such event, violation, inaccuracy, circumstance or other matter (considered
together with all other matters that would constitute exceptions to the
representations and warranties of Parent set forth in the Agreement but for the
presence of "Material Adverse Effect" or other materiality qualifications, or
any similar qualifications, in such representations and warranties) had or would
reasonably be expected to have a material adverse effect on (i) the business,
financial condition, capitalization, assets, liabilities, operations or
financial performance of Parent and its Subsidiaries taken as a whole or (ii)
the ability of Parent to consummate the Merger or any of the other transactions
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<PAGE> 64
contemplated by the Agreement or to perform any of its obligations under the
Agreement. Notwithstanding the foregoing:
(A) none of the following shall be deemed, in and of itself, to
constitute a Material Adverse Effect on the Acquired
Companies: (1) any event, violation, inaccuracy, circumstance
or other matter that results from conditions affecting the
economy in general or conditions affecting the industry in
which the Acquired Companies operates, or (2) a decline in
the stock price of the Company; and
(B) none of the following shall be deemed, in and of itself, to
constitute a Material Adverse Effect on Parent: (1) any
event, violation, inaccuracy, circumstance or other matter
that results from conditions affecting the economy in general
or conditions affecting the industry in which Parent or its
Subsidiaries operates, or (2) a decline in the stock price of
Parent.
In addition to the foregoing, a Legal Proceeding that is commenced by or on
behalf of one or more of the Company's stockholders against the directors of the
Company after the receipt by the Company of a Superior Offer (to the extent that
such Legal Proceeding relates to such Superior Offer) shall be disregarded for
the purposes of determining whether a Material Adverse Effect on the Acquired
Companies has occurred or could reasonably be expected to occur.
MATERIALS OF ENVIRONMENTAL CONCERN. "MATERIALS OF ENVIRONMENTAL CONCERN"
shall mean chemicals, pollutants, contaminants, wastes, toxic substances,
petroleum and petroleum products and any other substance that is now or
hereafter regulated by any Environmental Law or that is otherwise a danger to
health, reproduction or the environment.
NASDAQ. "NASDAQ" shall mean the Nasdaq National Market.
PARENT COMMON STOCK. "PARENT COMMON STOCK" shall mean the Common Stock,
$.001 par value per share, of Parent.
PERSON. "PERSON" shall mean any individual, Entity or Governmental Body.
PROPRIETARY ASSET. "PROPRIETARY ASSET" shall mean any: (a) patent,
patent application, trademark (whether registered or unregistered), trademark
application, trade name, fictitious business name, service mark (whether
registered or unregistered), service mark application, copyright (whether
registered or unregistered), copyright application, maskwork, maskwork
application, trade secret, know-how, customer list, franchise, system, computer
software, computer program source code, algorithm, invention, design, blueprint,
engineering drawing, proprietary product, technology, proprietary right or other
intellectual property right or intangible asset in any jurisdiction in the
world; or (b) right to use or exploit any of the foregoing in any jurisdiction
in the world.
PROXY STATEMENT/PROSPECTUS. "PROXY STATEMENT/PROSPECTUS" shall mean the
proxy statement to be sent to the Company's stockholders in connection with the
Company Stockholders' Meeting which also constitutes the prospectus of Parent
relating to the offer and
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<PAGE> 65
sale of shares of Parent Common Stock pursuant to the Agreement, in the form
reasonably agreed upon by the Company and Parent.
REPRESENTATIVES. "REPRESENTATIVES" shall mean officers, directors,
employees, agents, attorneys, accountants, advisors and representatives.
SEC. "SEC" shall mean the United States Securities and Exchange
Commission.
SECURITIES ACT. "SECURITIES ACT" shall mean the Securities Act of 1933,
as amended.
SUBSIDIARY. An entity shall be deemed to be a "Subsidiary" of another
Person if such Person directly or indirectly owns or purports to own,
beneficially or of record, (a) an amount of voting securities of other interests
in such Entity that is sufficient to enable such Person to elect at leased a
majority of the members of such Entity's Board of Directors or other governing
body, or (b) at least 50% of the outstanding equity or financial interests or
such Entity.
SUPERIOR OFFER. "SUPERIOR OFFER" shall mean an unsolicited, bona fide
written offer made by a third party to consummate an Acquisition Transaction
involving the acquisition (whether by way of merger, consolidation, share
exchange, business combination, issuance of securities, acquisition of
securities, tender offer, exchange offer or other similar transaction) of more
than 50% of the outstanding voting securities of the Company or the sale, lease
(other than in the ordinary course of business), exchange, transfer, license
(other than in the ordinary course of business), acquisition or disposition of
more than 50% of the business or assets of the Company on terms that the Board
of Directors of the Company determines, in its good faith judgment, based upon a
written opinion of an independent financial advisor of nationally recognized
reputation, to be more favorable to the Company's stockholders than the terms of
the Merger; provided, however, that any such offer shall not be deemed to be a
"Superior Offer" if it is not reasonably likely to be completed.
TAX. "TAX" shall mean any tax (including any income tax, franchise tax,
capital gains tax, gross receipts tax, value-added tax, surtax, excise tax, ad
valorem tax, transfer tax, stamp tax, sales tax, use tax, property tax, business
tax, withholding tax or payroll tax), levy, assessment, tariff, duty (including
any customs duty), deficiency or fee, and any related charge or amount
(including any fine, penalty or interest), imposed, assessed or collected by or
under the authority of any Governmental Body.
TAX RETURN. "TAX RETURN" shall mean any return (including any
information return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information filed
with or submitted to, or required to be filed with or submitted to, any
Governmental Body in connection with the determination, assessment, collection
or payment of any Tax or in connection with the administration, implementation
or enforcement of or compliance with any Legal Requirement relating to any Tax.
TRIGGERING EVENT. A "TRIGGERING EVENT" shall be deemed to have occurred
if: (i) the Board of Directors of the Company shall have failed to recommend, or
shall for any reason have withdrawn or shall have amended or modified in a
manner adverse to Parent its unanimous recommendation in favor of, the adoption
of the Agreement; (ii) the Company shall have failed to include in the Proxy
Statement/Prospectus the unanimous recommendation of the Board of
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<PAGE> 66
Directors of the Company in favor of the adoption of the Agreement; (iii) after
an Acquisition Proposal shall have been disclosed, announced, commenced,
submitted or made, the Board of Directors of the Company fails to reaffirm its
unanimous recommendation in favor of the adoption of the Agreement within five
business days after Parent requests in writing that such recommendation be
reaffirmed; (iv) the Board of Directors of the Company shall have approved,
endorsed or recommended any Acquisition Proposal; (v) the Company shall have
entered into any letter of intent or Contract relating to a transaction or
series of transactions that, if consummated, would result in an Acquisition
Transaction; (vi) the Company shall have breached in any material respect any of
its obligations under Section 4.4 or Section 5.1(a) of the Agreement; (vii) a
tender or exchange offer relating to securities of the Company that, if
consummated, would result in an Acquisition Transaction, shall have been
commenced and the Company shall not have sent to its securityholders, within 10
business days after the commencement of such tender or exchange offer, a
statement disclosing that the Company recommends rejection of such tender or
exchange offer; (viii) an Acquisition Proposal is publicly announced, and the
Company fails to issue a press release announcing its opposition to such
Acquisition Proposal within ten business days after such Acquisition Proposal is
announced; or (ix) the Company breaches or is deemed to have breached in any
material respect any of its obligations under Section 4.3 of the Agreement.
UNAUDITED INTERIM BALANCE SHEET. "Unaudited Interim Balance Sheet" shall
mean the unaudited consolidated balance sheet of the Company and its
consolidated subsidiaries as of March 31, 2000, as previously provided to
Parent.
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<PAGE> 1
EXHIBIT 4.1
STOCK OPTION AGREEMENT
THIS STOCK OPTION AGREEMENT ("Option Agreement") is entered into as of
May 1, 2000, by and between ACT NETWORKS, INC., a Delaware corporation (the
"Company"), and CLARENT CORPORATION, a Delaware corporation (the "Grantee").
RECITALS
A. The Grantee, Copper Acquisition Sub, Inc., a Delaware corporation and
a wholly owned subsidiary of the Grantee ("Merger Sub"), and the Company are
entering into an Agreement and Plan of Merger and Reorganization of even date
herewith (as amended from time to time, the "Reorganization Agreement") which
provides (subject to the conditions set forth therein) for the merger of Merger
Sub into the Company (the "Merger").
B. The Company is entering into this Option Agreement in order to induce
the Grantee to enter into the Reorganization Agreement.
AGREEMENT
The parties to this Option Agreement, intending to be legally bound,
agree as follows:
1. CERTAIN DEFINITIONS. Capitalized terms used but not defined in this
Option Agreement shall have the meanings given to such terms in the
Reorganization Agreement.
2. GRANT OF OPTION. The Company hereby grants to the Grantee an
irrevocable option (the "Option") to purchase, out of the authorized but
unissued Company Common Stock, a number of shares of Company Common Stock equal
to up to 19.9% of the number of shares of Company Common Stock outstanding as of
the date hereof (the shares of Company Common Stock purchasable pursuant to the
Option, as adjusted as set forth herein, being referred to as the "Option
Shares"), at a price per Option Share equal to the applicable Exercise Price.
For purposes of this Option Agreement, the applicable "Exercise Price" shall be
equal to $16.00.
3. TERM. The Option shall terminate on the earliest of the following
dates (the "Termination Date"): (a) the date on which the Merger becomes
effective; (b) the date on which the Reorganization Agreement is validly
terminated pursuant to Section 8.1 thereof, if an Exercise Event (as defined in
Section 4(b)) shall not have occurred on or prior to such date; or (c) the first
anniversary of the date on which the Grantee receives written notice from the
Company of the occurrence of an Exercise Event; provided, however, that if an
Exercise Event occurs, and if, by reason of any applicable Legal Requirement,
order, judgment, decree or other legal impediment, the Option cannot be
exercised on the first anniversary of the date on which the Grantee receives the
written notice referred to in clause "(c)" of this sentence, then the
Termination Date shall be extended until the date 30 days after the date on
which such impediment is removed. The rights of the Grantee and the obligations
of the Company set forth in Sections 7 and 8 shall not terminate on the
Termination Date, but rather shall survive beyond the Termination Date as
provided in those Sections; and the representation, warranty and covenant set
forth in Section 5(b) shall survive the termination date for an indefinite
period of time.
<PAGE> 2
4. EXERCISE OF OPTION.
(a) The Grantee may exercise the Option, in whole or in part, at any
time and from time to time on or before the Termination Date following the
occurrence of an Exercise Event. If the Grantee exercises the Option with
respect to any Option Shares on or before the Termination Date, then,
notwithstanding anything to the contrary contained in this Option Agreement, the
Grantee shall be entitled to purchase such Option Shares in accordance with the
terms of this Option Agreement after the Termination Date.
(b) For purposes of this Option Agreement, an "Exercise Event" shall
be deemed to have occurred if:
(i) either the Grantee or the Company shall have the right to
terminate the Reorganization Agreement pursuant to Section 8.1(d)
thereof and an Acquisition Proposal shall have been previously
disclosed, announced, commenced, submitted or made; or
(ii) the Grantee shall have the right to terminate the
Reorganization Agreement pursuant to Section 8.1(e) thereof.
(c) To exercise the Option with respect to any Option Shares, the
Grantee shall deliver to the Company a written notice (an "Exercise Notice")
specifying: (i) the number of Option Shares the Grantee will purchase; (ii) the
place at which such Option Shares are to be purchased; and (iii) the date on
which such Option Shares are to be purchased, which shall not be sooner than two
business days nor later than twenty business days after the date of delivery of
such Exercise Notice to the Company. (The date of delivery of such Exercise
Notice to the Company is referred to as the applicable "Notice Date," and the
Option shall be deemed to have been validly exercised on such Notice Date with
respect to the Option Shares referred to in such Exercise Notice.) The closing
of the purchase of such Option Shares (the applicable "Closing") shall take
place at the place specified in the Exercise Notice and on the date specified in
such Exercise Notice (the applicable "Closing Date"); provided, however, that:
(A) if such purchase cannot be consummated on such Closing Date by reason of any
applicable Legal Requirement, order, judgment, decree or other legal impediment,
then the Grantee may extend the Closing Date to a date not more than 30 days
after the date on which such impediment is removed; and (B) if prior
notification to or approval of any Governmental Body is required, or if any
waiting period must expire or be terminated, in connection with such purchase,
then (1) the Company shall promptly cause to be filed the required notice or
application for approval and shall expeditiously process such notice or
application, (2) the Company shall cooperate with the Grantee in the filing of
any such notice or application required to be filed by the Grantee and in the
obtaining of any such approval required to be obtained by the Grantee, and (3)
the Grantee may extend the Closing Date to a date not more than 30 days after
the latest date on which any required notification has been made, any required
approval has been obtained or any required waiting period has expired or been
terminated.
5. PAYMENT AND DELIVERY OF CERTIFICATE.
(a) On each Closing Date, the Grantee shall pay to the Company in
immediately available funds an amount equal to the applicable Exercise Price
multiplied by the
2.
<PAGE> 3
number of Option Shares to be purchased by the Grantee from the Company on such
Closing Date.
(b) At each Closing, concurrently with the delivery of the
immediately available funds referred to in Section 5(a), the Company shall
deliver to the Grantee a certificate representing the Option Shares being
purchased at such Closing. The Company represents, warrants and covenants that
such Option Shares will be duly authorized, validly issued, fully paid,
nonassessable and free and clear of all Encumbrances, except as may be
specifically provided in this Option Agreement.
(c) The certificate representing the Option Shares delivered at each
Closing shall be endorsed with a restrictive legend that shall read
substantially as follows:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933 AND MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED UNLESS REGISTERED UNDER
SAID ACT OR UNLESS AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF SAID ACT IS AVAILABLE.
If at any time the Grantee delivers to the Company evidence (in the form of a
copy of a letter from the staff of the SEC or an opinion of counsel reasonably
satisfactory to the Company, or in some other form) that the legend referred to
above is not required for purposes of the Securities Act, then the Company shall
promptly replace such certificate with a certificate that does not include such
legend.
6. ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC.
(a) If the outstanding shares of Company Common Stock are changed
into a different number or class of shares by reason of any stock split,
division or subdivision of shares, stock dividend, reverse stock split,
reclassification, recapitalization or other similar transaction, then the type
and number of shares or other securities subject to the Option, the applicable
Exercise Price, the Designated Price (as defined in Section 7(c)) and the other
numbers and dollar amounts referred to in this Option Agreement shall be
adjusted appropriately, and the Company shall ensure that proper provision is
made in the agreements and other documents governing such transaction so that
the Grantee shall receive upon exercise of the Option the same class and number
of outstanding shares or other securities or property that the Grantee would
have received if the Option had been exercised immediately prior to such
transaction or the record date for determining the stockholders entitled to
participate in such transaction, as applicable.
(b) If any additional shares of Company Common Stock are issued
after the date of this Option Agreement (other than pursuant to a transaction
described in Section 6(a)), then the number of shares of Company Common Stock
then remaining subject to the Option shall be increased to the number by which
(i) 19.9% of the number of shares of the Company Common Stock outstanding after
the issuance of such additional shares exceeds (ii) the number of shares
(adjusted in accordance with Section 6(a)) previously issued to the Grantee upon
exercise of the Option.
3.
<PAGE> 4
(c) If the Company shall enter into an agreement (i) to consolidate,
exchange shares or merge with any Person, other than the Grantee or one of the
Grantee's subsidiaries, and, in the case of a merger, shall not be the
continuing or surviving corporation, (ii) to permit any Person, other than the
Grantee or one of the Grantee's subsidiaries, to merge into the Company and the
Company shall be the continuing or surviving corporation, but, in connection
with such merger, the then outstanding shares of Company Common Stock shall be
changed into or exchanged for stock or other securities of the Company or any
other Person or cash or any other property, or the shares of Company Common
Stock outstanding immediately before such merger shall after such merger
represent less than 50% of the common shares and common share equivalents of the
Company outstanding immediately after the merger, or (iii) to sell, lease or
otherwise transfer all or substantially all of its assets to any Person, other
than the Grantee or one of the Grantee's subsidiaries, then, and in each such
case, the Company shall ensure that proper provision is made in the agreements
and other documents governing such transaction so that the Option shall, upon
the consummation of such transaction, become exercisable for the stock,
securities, cash or other property that would have been received by the Grantee
if the Grantee had exercised the Option immediately prior to such transaction or
the record date for determining the stockholders entitled to participate in such
transaction, as appropriate.
(d) The provisions of Sections 7 and 8 shall apply (with appropriate
adjustments) to any securities for which the Option becomes exercisable pursuant
to this Section 6.
7. REPURCHASE AT THE REQUEST OF THE GRANTEE.
(a) If, at any time during the period commencing upon the occurrence
of the first Exercise Event and ending on the first anniversary of the date on
which the Grantee receives written notice from the Company of the occurrence of
such Exercise Event, the Grantee delivers to the Company a notice stating that
the Grantee is exercising its rights under this Section 7, then the Company
shall repurchase from the Grantee (i) that portion of the Option that then
remains unexercised, (ii) all of the shares of Company Common Stock beneficially
owned by the Grantee that were previously purchased by the Grantee upon exercise
of the Option, and (iii) the Grantee's right to receive all Option Shares with
respect to which the Option was previously exercised but which have not yet been
issued and delivered to the Grantee. (The date on which the Grantee delivers
such notice to the Company is referred to as the "Request Date.") Such
repurchase shall be at an aggregate price (the "Repurchase Consideration") equal
to the sum of:
(i) the aggregate number of Option Shares with respect to which
the Option has been exercised on or prior to the Request Date and which
are beneficially owned by the Grantee, multiplied by the Designated
Price;
(ii) the aggregate number of Option Shares with respect to which
the Option has been exercised on or prior to the Request Date but which
have not, as of the Request Date been issued and delivered to the
Grantee, multiplied by the Designated Price; and
(iii) the number of Option Shares with respect to which the
Option has not been exercised on or prior to the Request Date multiplied
by the amount (if any) by which the Designated Price exceeds the
applicable Exercise Price.
4.
<PAGE> 5
(b) If the Grantee exercises its rights under this Section 7, then
the Company shall, within two business days after the Request Date, pay the
Repurchase Consideration to the Grantee in immediately available funds, and the
Grantee shall thereupon surrender to the Company the certificate or certificates
evidencing any shares of Company Common Stock repurchased by the Company
pursuant to this Section 7.
(c) For purposes of this Option Agreement, the "Designated Price"
means the highest of (i) the highest purchase price per share paid after the
date of this Option Agreement and on or prior to the Request Date pursuant to
any tender or exchange offer made for shares of Company Common Stock, (ii) the
highest price per share paid or to be paid by any Person for shares of Company
Common Stock pursuant to any agreement contemplating a merger or other business
combination transaction involving the Company that was entered into after the
date of this Option Agreement and on or prior to the Request Date, (iii) the
highest bid price per share of Company Common Stock as quoted on The Nasdaq
National Market (or if Company Common Stock is not quoted on The Nasdaq National
Market, the highest bid price per share of Company Common Stock as quoted on any
other market comprising a part of The Nasdaq Stock Market or, if the shares of
Company Common Stock are not quoted thereon, on the principal trading market (as
defined in Regulation M under the Exchange Act) on which such shares are traded
as reported by a recognized source) during the 90-day period ending on the
Request Date, or (iv) the highest Exercise Price paid or payable for any Option
Shares. If any portion of the consideration paid or to be paid pursuant to
clause "(i)" or "(ii)" of the preceding sentence is in a form other than cash,
then the value of the non-cash portion of such consideration shall be determined
in good faith by an independent nationally recognized investment banking firm
selected by the Company, and such firm's determination of such value shall be
final and conclusive for all purposes under this Option Agreement.
8. REGISTRATION RIGHTS.
(a) The Company shall, if requested by the Grantee at any time and
from time to time within two years after the first exercise of the Option (the
"Registration Period"), as expeditiously as practicable, prepare, file and cause
to be declared effective up to two registration statements under the Securities
Act (including, in the sole discretion of the Grantee, a "shelf" registration
statement under Rule 415 under the Securities Act or any successor provision),
if registration under the Securities Act is (in the Grantee's good faith
judgment) necessary or desirable in order to permit the offering, sale and
delivery, in accordance with the intended method of sale or other disposition
stated by the Grantee, of any or all shares of Company Common Stock or other
securities that have been acquired or are issuable upon exercise of the Option.
No other securities may be included in any such registration statement without
the Grantee's prior written consent. The Company shall use all reasonable
efforts to cause each such registration statement to become effective, to obtain
all consents or waivers of other parties that are required therefor and to keep
such registration statement effective for such period as may be as reasonably
necessary to effect such sale or other disposition. In addition, the Company
shall use all reasonable efforts to register such shares or other securities
under any applicable state securities laws. The obligations of the Company
hereunder to file a registration statement and to maintain its effectiveness may
be suspended for one or more periods of time not exceeding 30 days in the
aggregate if the board of directors of the Company shall have determined in good
faith that the filing of such registration statement or the maintenance of its
effectiveness would require disclosure of material nonpublic information and
that the disclosure thereof would materially and adversely affect the Company.
For purposes of determining
5.
<PAGE> 6
whether two requests have been made under this Section 8, only requests relating
to a registration statement that has become effective under the Securities Act
and pursuant to which the Grantee has disposed of all shares covered thereby in
the manner contemplated therein shall be counted.
(b) The expenses associated with the preparation and filing of any
registration statement pursuant to this Section 8 and any sale covered thereby
(including any fees related to blue sky qualifications and filing fees in
respect of the National Association of Securities Dealers, Inc.) shall be borne
and paid by, and shall be for the sole account of, the Company (except for
underwriting discounts or commissions in respect to shares to be sold by the
Grantee and the fees and disbursements of the Grantee's counsel).
(c) The Grantee shall provide all information reasonably requested
by the Company for inclusion in any registration statement to be filed
hereunder. If, during the Registration Period, the Company shall propose to
register under the Securities Act the offering, sale and delivery of Company
Common Stock for cash pursuant to a firm commitment underwriting, it shall
(without limiting the Company's other obligations under this Section 8) allow
the Grantee the right to participate in such registration (provided that the
Grantee participates in the underwriting); provided, however, that, if the
managing underwriter of such offering advises the Company in writing that in its
opinion the number of shares of Company Common Stock requested to be included in
such registration exceeds the number that can be sold in such offering, the
Company shall, after fully including therein all securities to be sold by the
Company, include the shares requested to be included therein by Grantee pro rata
(based on the number of shares intended to be included therein) with the shares
intended to be included therein by Persons other than the Company. In connection
with any offering, sale and delivery of Company Common Stock pursuant to a
registration effected pursuant to this Section 8, the Company and the Grantee
shall provide each other and each underwriter of the offering with customary
representations, warranties and covenants, including covenants of
indemnification and contribution.
9. PROFIT LIMITATION. Notwithstanding anything to the contrary contained
in this Option Agreement, the Grantee may not exercise its rights pursuant to
this Option Agreement in a manner that would result in a cash payment to the
Grantee of an aggregate amount under this Option Agreement and under Section
8.3(b) and Section 8.3(c) of the Reorganization Agreement of more than the sum
of (a) the aggregate exercise price paid and/or payable by the Grantee for any
Option Shares as to which the Option has theretofore been exercised, plus (b) an
amount equal to the Termination Fee, plus (c) $1,833,333.
10. LISTING. If, at the time of the occurrence of an Exercise Event, the
Company Common Stock (or any other class of securities subject to the Option) is
listed on The Nasdaq National Market or on any other market or exchange, then
the Company, upon the occurrence of such Exercise Event, shall promptly file an
application to list on The Nasdaq National Market and on such other market or
exchange the shares of the Company Common Stock (or other securities) subject to
the Option, and shall use its best efforts to cause such application to be
approved as promptly as practicable.
11. REPLACEMENT OF AGREEMENT. Upon receipt by the Company of evidence
reasonably satisfactory to it of the loss, theft, destruction or mutilation of
this Option Agreement, and (in the case of loss, theft or destruction) of
reasonably satisfactory indemnification, and upon
6.
<PAGE> 7
surrender and cancellation of this Option Agreement, if mutilated, the Company
will execute and deliver a new Option Agreement of like tenor and date.
12. MISCELLANEOUS.
(a) WAIVER. No failure on the part of any party to exercise any
power, right, privilege or remedy under this Option Agreement, and no delay on
the part of any party in exercising any power, right, privilege or remedy under
this Option Agreement, shall operate as a waiver of such power, right, privilege
or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. No party shall be deemed to have waived any
claim arising out of this Option Agreement, or any power, right, privilege or
remedy under this Option Agreement, unless the waiver of such claim, power,
right, privilege or remedy is expressly set forth in a written instrument duly
executed and delivered on behalf of such party; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
(b) NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Option Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) when delivered by
hand, or (b) two business days after sent by internationally recognized courier
or express delivery service (such as Federal Express) or by facsimile (with
confirmation of receipt) to the address or facsimile telephone number set forth
beneath the name of such party below (or to such other address or facsimile
telephone number as such party shall have specified in a written notice given to
the other parties hereto):
if to the Company, to it at:
26707 W. Agoura Road
Calabasas, CA 91302
Facsimile: (818) 871-6405
Attention: Chief Executive Officer
if to the Grantee, to it at:
700 Chesapeake Drive
Redwood City, CA 94063
Facsimile: (650) 306-7512
Attention: Chief Executive Officer
(c) ENTIRE AGREEMENT; COUNTERPARTS. This Option Agreement and the
agreements referred to herein constitute the entire agreement and supersede all
prior agreements and understandings, both written and oral, between the parties
with respect to the subject matter hereof and thereof. This Option Agreement may
be executed in several counterparts, each of which shall be deemed an original
and all of which shall constitute one and the same instrument.
(d) BINDING EFFECT; BENEFIT; ASSIGNMENT. This Option Agreement shall
be binding upon, and shall be enforceable by and inure solely to the benefit of,
the parties hereto and their respective successors and assigns; provided,
however, that neither this Option
7.
<PAGE> 8
Agreement nor any of the Company's rights, interest or obligations hereunder may
be assigned by the Company without the prior written consent of the Grantee, and
any attempted assignment of this Option Agreement or any of such rights,
interest or obligations by the Company without such consent shall be void and of
no effect. Nothing in this Option Agreement, express or implied, is intended to
or shall confer upon any Person (other than the parties hereto and the Grantee's
successors and assigns) any right, benefit or remedy of any nature under or by
reason of this Option Agreement.
(e) AMENDMENT AND MODIFICATION. This Option Agreement may be amended
with the approval of the respective boards of directors of the Company and the
Grantee at any time. This Option Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
(f) FURTHER ACTIONS. The Company agrees to cooperate fully with the
Grantee and to execute and deliver such further documents, certificates,
agreements and instruments and to take such other actions as may be reasonably
requested by the Grantee to evidence or reflect the transactions contemplated by
this Option Agreement and to carry out the intent and purposes of this Option
Agreement.
(g) HEADINGS. The bold-faced headings contained in this Option
Agreement are for convenience of reference only, shall not be deemed to be a
part of this Option Agreement and shall not be referred to in connection with
the construction or interpretation of this Option Agreement.
(h) APPLICABLE LAW; JURISDICTION. This Option Agreement shall be
governed by, and construed in accordance with, the laws of the State of
Delaware, regardless of the laws that might otherwise govern under applicable
principles of conflicts of laws thereof. In any action between any of the
parties arising out of or relating to this Option Agreement or any of the
transactions contemplated by this Option Agreement: (a) each of the parties
irrevocably and unconditionally consents and submits to the jurisdiction and
venue of the state and federal courts located in the State of Delaware; (b) each
of the parties irrevocably waives the right to trial by jury; and (c) each of
the parties irrevocably consents to service of process by first class certified
mail, return receipt requested, postage prepaid, to the address at which such
party is to receive notice in accordance with Section 12(b).
(i) SEVERABILITY. In the event that any provision of this Option
Agreement, or the application of any such provision to any Person (as such term
is defined in the Reorganization Agreement) or set of circumstances, shall be
determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Option Agreement, and the application of such provision to
Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
(j) SPECIFIC PERFORMANCE. The Company agrees that (i) in the event
of any breach or threatened breach by the Company of any covenant, obligation or
other provision set forth in this Option Agreement, the Grantee shall be
entitled (in addition to any other remedy that may be available to it), to (A) a
decree or order of specific performance or mandamus to enforce the observance
and performance of such covenant, obligation or other provision, and (B) an
injunction restraining such breach or threatened breach, and (ii) neither the
Grantee nor
8.
<PAGE> 9
any other Person shall be required to provide any bond or other security in
connection with any such decree, order or injunction or in connection with any
related action or proceeding.
(k) ATTORNEYS' FEES. In any action at law or suit in equity to
enforce this Option Agreement or the rights of any of the parties hereunder, the
prevailing party in such action or suit shall be entitled to receive a
reasonable sum for its attorneys' fees and all other reasonable costs and
expenses incurred in such action or suit.
(l) NON-EXCLUSIVITY. The rights and remedies of the Grantee under
this Option Agreement are not exclusive of or limited by any other rights or
remedies which it may have, whether at law, in equity, by contract or otherwise,
all of which shall be cumulative (and not alternative). Without limiting the
generality of the foregoing, the rights and remedies of the Grantee under this
Option Agreement, and the obligations and liabilities of the Company under this
Option Agreement, are in addition to their respective rights, remedies,
obligations and liabilities under all applicable Legal Requirements and under
the Reorganization Agreement. The covenants and obligations of the Company set
forth in this Option Agreement shall be construed as independent of any other
agreement or arrangement between the Company, on the one hand, and the Grantee,
on the other. The existence of any claim or cause of action by the Company
against the Grantee shall not constitute a defense to the enforcement of any of
such covenants or obligations against the Company.
(m) CONSTRUCTION.
(i) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(ii) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(iii) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(iv) Unless otherwise specified, references in this Agreement to
"Sections" are intended to refer to Sections of this Agreement.
9.
<PAGE> 10
IN WITNESS WHEREOF, the Company and the Grantee have caused this Option
Agreement to be executed as of the date first written above.
ACT NETWORKS, INC.
By: /s/ ANDRE DE FUSCO
-----------------------------------
Name: Andre de Fusco
Title: President and Chief Executive
Officer
CLARENT CORPORATION
By: /s/ RICHARD J. HEAPS
-----------------------------------
Name: Richard J. Heaps
Title: Chief Operating Officer and
Chief Financial Officer
10.
<PAGE> 1
EXHIBIT 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Voting Agreement") is entered into as of
May 1, 2000, by and between CLARENT CORPORATION., a Delaware corporation
("Parent"), and __________ ("Stockholder").
RECITALS
A. Parent, Copper Acquisition Sub, Inc., a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub"), and Aluminum, Inc., a Delaware
corporation (the "Company"), are entering into an Agreement and Plan of Merger
and Reorganization of even date herewith (as amended from time to time, the
"Reorganization Agreement"), which provides (subject to the conditions set forth
therein) for the merger of Merger Sub into the Company (the "Merger").
B. As a condition to the willingness of Parent and Merger Sub to enter
into the Reorganization Agreement, Parent and Merger Sub have required that
Stockholder enter into this Voting Agreement; and Stockholder is entering into
this Voting Agreement in order to induce Parent and Merger Sub to enter into the
Reorganization Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
(a) All capitalized terms used but not otherwise defined in
this Voting Agreement have the meanings given to them in the Reorganization
Agreement.
(b) "SUBJECT SECURITIES" shall mean: (i) all securities of the
Company (including shares of Company Common Stock and options and other rights
to acquire shares of Company Common Stock) Owned by Stockholder as of the date
of this Voting Agreement; and (ii) all additional securities of the Company
(including any additional shares of Company Common Stock and any additional
options or other rights to acquire shares of Company Common Stock) of which
Stockholder acquires Ownership during the period from the date of this Voting
Agreement through the Expiration Date.
(c) Stockholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Exchange Act) of such security.
(d) "EXPIRATION DATE" shall mean the earlier of the date upon
which the Reorganization Agreement is validly terminated or the date upon which
the Effective Time occurs.
<PAGE> 2
(e) The "RECORD DATE" for a particular matter shall be the
date fixed for Persons entitled: (i) to receive notice of, and to vote at, a
meeting of the stockholders of the Company called for the purpose of voting on
such matter; or (ii) to take action by written consent of the stockholders of
the Company with respect to such matter.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 NO DISPOSITION OR ENCUMBRANCE OF SUBJECT SECURITIES. Stockholder
covenants and agrees that, from the date of this Voting Agreement until the
Expiration Date, Stockholder will not, directly or indirectly: (i) offer, sell,
offer to sell, contract to sell, pledge, grant any option to purchase or
otherwise dispose of or transfer (or permit or announce any offer, sale, offer
of sale, contract of sale or grant of any option for the purchase of, or permit
or announce any other disposition or transfer of) any of the Subject Securities,
or any interest in any of the Subject Securities, to any Person other than
Parent; (ii) create or permit to exist any Encumbrance on or otherwise affecting
any of the Subject Securities; or (iii) reduce Stockholder's Ownership of,
interest in or risk relating to any of the Subject Securities.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder covenants and agrees that,
from the date of this Voting Agreement until the Expiration Date, Stockholder
will not deposit any of the Subject Securities into a voting trust or grant a
proxy or enter into a voting agreement or similar Contract with respect to any
of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder covenants and agrees that, from the
date of this Voting Agreement until the Expiration Date, at any meeting of the
stockholders of the Company, however called, and in any written action by
consent of stockholders of the Company, Stockholder shall (unless otherwise
directed in writing by Parent) cause to be voted all outstanding shares of
capital stock of the Company that (as of the Record Date for any of the matters
referred to in this Section 3.1) are Owned by Stockholder:
(i) in favor of the Merger and the adoption of the
Reorganization Agreement and in favor of each of the other actions
contemplated by the Reorganization Agreement and any action that could
reasonably be expected to facilitate the consummation of the Merger;
and
(ii) against the following actions (other than the
Merger and the other transactions contemplated by the Reorganization
Agreement): (A) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving any of
the Acquired Companies; (B) any sale, lease or transfer of a material
amount of assets of any of the Acquired Companies (other than in the
ordinary course of business); (C) any reorganization, recapitalization,
dissolution or liquidation of any of the Acquired Companies; (D) any
removal of or change in a majority of the board of directors of the
Company; (E) any amendment to the Company's certificate of
incorporation; (F) any material change in the capitalization of the
Company or the
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<PAGE> 3
Company's corporate structure; and (G) any other action that is
inconsistent with the Merger or that is intended, or could reasonably
be expected, to impede, interfere with, delay, postpone, discourage or
adversely affect the Merger or any of the other transactions
contemplated by the Reorganization Agreement or this Voting Agreement.
Stockholder shall not, from the date of this Voting Agreement until the
Expiration Date, enter into any agreement or understanding with any Person to
vote or give instructions inconsistent with clause "(i)" or "(ii)" of the
preceding sentence.
3.2 PROXY.
(a) Concurrently with the execution of this Voting Agreement:
(i) Stockholder shall deliver to Parent a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law,
with respect to the shares referred to therein (the "Proxy"); and (ii)
Stockholder shall cause to be delivered to Parent an additional proxy (in the
form attached hereto as Exhibit A) executed on behalf of the record owner of any
outstanding shares of Company Common Stock that are owned beneficially (but are
not owned of record) by Stockholder.
(b) After the execution of this Voting Agreement until the
Expiration Date, Stockholder shall execute or cause to be executed such further
proxies as may be requested by Parent with respect to any additional shares of
outstanding capital stock of the Company of which Stockholder acquires
Ownership, and Stockholder shall promptly notify Parent upon acquiring Ownership
of any additional securities of the Company.
SECTION 4. WAIVER OF APPRAISAL RIGHTS.
Stockholder hereby irrevocably and unconditionally waives any rights of
appraisal, dissenters' rights or similar rights that Stockholder may have in
connection with the Merger, and Stockholder shall cause to be irrevocably and
unconditionally waived any such rights that any affiliate of Stockholder may
have in connection with the Merger.
SECTION 5. NO SOLICITATION
Stockholder covenants and agrees that, during the period commencing on
the date of this Voting Agreement and ending on the Expiration Date, Stockholder
shall not, directly or indirectly, and shall not authorize or permit any
Representative of Stockholder, directly or indirectly, to (i) solicit, initiate,
encourage or induce the making, submission or announcement of any Acquisition
Proposal or take any action that would, individually or in the aggregate,
reasonably be expected to lead to an Acquisition Proposal, (ii) furnish any
information regarding any of the Acquired Companies to any Person in connection
with or in response to an Acquisition Proposal or an inquiry or indication of
interest that could lead to an Acquisition Proposal, (iii) engage in discussions
with any Person with respect to any Acquisition Proposal, (iv) approve, endorse
or recommend any Acquisition Proposal, or (v) enter into any letter of intent or
similar document or any Contract contemplating or otherwise relating to any
3
<PAGE> 4
Acquisition Transaction. Stockholder shall immediately cease any existing
discussions with any Person that relate to any Acquisition Proposal. Stockholder
shall promptly (and in no event later than 24 hours after receiving, or
obtaining knowledge of, any Acquisition Proposal, any inquiry or indication of
interest that could reasonably be expected to lead to an Acquisition Proposal or
any request for nonpublic information) advise Parent orally and in writing of
any Acquisition Proposal, any inquiry or indication of interest that could
reasonably be expected to lead to an Acquisition Proposal or any request for
nonpublic information relating to any of the Acquired Companies (including the
identity of the Person making or submitting such Acquisition Proposal, inquiry,
indication of interest or request, and the terms thereof) that is made or
submitted by any Person.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has all requisite power and
capacity to execute and deliver this Voting Agreement and the Proxy and to
perform Stockholder's obligations hereunder and thereunder. This Voting
Agreement and the Proxy have been duly executed and delivered by Stockholder
and, assuming the due authorization, execution and delivery by Parent,
constitute the legal, valid and binding obligations of Stockholder, enforceable
against Stockholder in accordance with their respective terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
6.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Voting Agreement and
the Proxy by Stockholder do not, and the performance of this Voting Agreement
and the Proxy by Stockholder will not: (i) conflict with or violate any Legal
Requirement, order, decree or judgment applicable to Stockholder or by which
Stockholder or any of Stockholder's properties is bound or affected; or (ii)
result in any breach of or constitute a default (with notice or lapse of time,
or both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an Encumbrance on
or otherwise affecting any of the Subject Securities pursuant to, any Contract
to which Stockholder is a party or by which Stockholder or any of Stockholder's
properties is bound or affected.
(b) The execution and delivery of this Voting Agreement and
the Proxy by Stockholder do not, and the performance of this Voting Agreement
and the Proxy by Stockholder will not, require any Consent of any Person.
6.3 TITLE TO SUBJECT SECURITIES. As of the date hereof, Stockholder
Owns in the aggregate (including shares owned of record and shares owned
beneficially) the number of outstanding shares of capital stock of the Company
specified below Stockholder's name on the signature page hereof, and the number
of options and other rights to acquire shares of Company Common Stock specified
below Stockholder's name on the signature page hereof, and Stockholder does not
directly or indirectly Own any other securities of the Company.
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<PAGE> 5
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
SECTION 7. COVENANTS OF STOCKHOLDER
Stockholder agrees to cooperate fully with Parent and to execute and
deliver (at Parent's expense) such further documents, certificates, agreements
and instruments and to take such other actions (at Parent's expense) as may be
reasonably requested by Parent to evidence or reflect the transactions
contemplated by this Voting Agreement and to carry out the intent and purposes
of this Voting Agreement.
SECTION 8. LIMITATIONS
This Voting Agreement is intended to bind Stockholder only with respect
to the specific matters set forth herein, and shall not prohibit Stockholder
from acting in accordance with his or her fiduciary duties as an officer or
director of the Company. Stockholder will retain at all times the right to vote
Stockholder's Subject Securities, in Stockholder's sole discretion, on all
matters other than those set forth in Section 3.1 which are at any time or from
time to time presented to the Company's stockholders generally.
SECTION 9. MISCELLANEOUS
9.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. None of the
representations, warranties and agreements made by Stockholder in this Voting
Agreement shall survive the Expiration Date; provided, however that the
termination of this Voting Agreement shall not relieve any party from any
liability for any breach of this Voting Agreement.
9.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to Parent, Stockholder shall hold harmless and
indemnify Parent from and against, and shall compensate and reimburse Parent
for, any loss, damage, injury, decline in value, lost opportunity, liability,
exposure, claim, demand, settlement, judgment, award, fine, penalty, tax, fee,
charge, cost or expense of any nature (whether or not relating to a third party
claim) which is directly or indirectly suffered or incurred at any time by
Parent or any of Parent's affiliates or to which Parent or any of Parent's
affiliates otherwise becomes subject and that arises from any inaccuracy in or
breach of any representation, warranty, covenant or obligation of Stockholder
contained in this Voting Agreement.
9.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
9.4 NOTICES. Any notice or other communication required or permitted to
be delivered to any party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) when delivered by
hand, or (b) one business day after sent by
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<PAGE> 6
internationally recognized courier or express delivery service (such as Federal
Express) or by facsimile (with confirmation of receipt), to the address or
facsimile telephone number set forth beneath the name of such party below (or to
such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other parties hereto):
if to Stockholder:
at the address set forth below Stockholder's
signature on the signature page hereto;
if to Parent:
Clarent Corporation
700 Chesapeake Drive
Redwood City, CA 94063
Facsimile: (650) 306-7512
Attention: Chief Executive Officer
9.5 SEVERABILITY. In the event that any term, provision, covenant or
restriction contained in this Voting Agreement, or the application of any such
term, provision, covenant or restriction to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Voting Agreement, and the application of such
term, provision, covenant or restriction to Persons or circumstances other than
those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.
9.6 ENTIRE AGREEMENT; COUNTERPARTS. This Voting Agreement, the Proxy,
the Reorganization Agreement and any Affiliate Agreement between Stockholder and
Parent constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and thereof. No addition to or modification of any
provision of this Voting Agreement shall be binding upon either party hereto
unless made in writing and signed by both parties hereto. This Voting Agreement
may be executed in several counterparts, each of which shall be deemed an
original and all of which shall constitute one and the same instrument.
9.7 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the obligations hereunder of Stockholder shall be
assigned or delegated by Stockholder (whether by operation of law or otherwise)
without the prior written consent of Parent. Subject to the preceding sentence,
this Voting Agreement shall be binding upon Stockholder and Stockholder's heirs,
successors and assigns, and shall inure to the benefit of Parent and its
successors and assigns. Without limiting any of the restrictions set forth in
Section 2 or elsewhere in this Voting Agreement, this Voting Agreement shall be
binding upon any Person to whom any Subject Securities are transferred.
Notwithstanding anything contained in this Voting Agreement to the contrary,
nothing in this Voting Agreement, express or implied, is
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<PAGE> 7
intended to confer on any Person, other than Parent and its successors and
assigns, any rights or remedies of any nature.
9.8 SPECIFIC PERFORMANCE. Stockholder agrees that in the event of any
breach or threatened breach by Stockholder of any material covenant, obligation
or other provision contained in this Voting Agreement, Parent shall be entitled
(in addition to any other remedy that may be available to Parent) to: (a) a
decree or order of specific performance or mandamus to enforce the observance
and performance of such covenant, obligation or other provision; and (b) an
injunction restraining such breach or threatened breach. Stockholder further
agrees that neither Parent nor any other Person shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 9.8, and
Stockholder irrevocably waives any right he or she may have to require the
obtaining, furnishing or posting of any such bond or similar instrument.
9.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any
of the rights or remedies of Parent or obligations of Stockholder under any
Affiliate Agreement or under any other agreement between Parent and Stockholder
or any certificate or instrument executed by Stockholder in favor of Parent; and
nothing in the Reorganization Agreement or in any other agreement, certificate
or instrument shall limit any of the rights or remedies of Parent or any of the
obligations of Stockholder under this Voting Agreement.
9.10 APPLICABLE LAW; JURISDICTION. THIS VOTING AGREEMENT SHALL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF
DELAWARE, REGARDLESS OF THE LAWS THAT MIGHT OTHERWISE GOVERN UNDER APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS THEREOF. In any action between any of the
parties arising out of or relating to this Voting Agreement or any of the
transactions contemplated by this Voting Agreement: (a) each of the parties
irrevocably and unconditionally consents and submits to the jurisdiction and
venue of the state and federal courts located in the State of Delaware; (b) if
any such action is commenced in any other state or federal court, then, subject
to applicable law, no party shall object to the removal of such action to any
federal court located in the State of Delaware; (c) each of the parties
irrevocably waives the right to trial by jury; and (d) the parties irrevocably
consent to service of process in the manner contemplated by Section 9.4.
9.11 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the
context requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Voting Agreement.
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<PAGE> 8
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Voting Agreement to "Sections" and "Exhibits" are intended to refer to Sections
of this Voting Agreement and Exhibits to this Voting Agreement.
(e) The headings contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
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<PAGE> 9
IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
CLARENT CORPORATION
By:
-----------------------------------------
Name: Richard J. Heaps
Title: Chief Operating Officer and Chief
Financial Officer
--------------------------------------------
Name:
Address:
------------------------------------
--------------------------------------------
--------------------------------------------
Facsimile:
----------------------------------
Number of outstanding shares of Company
Common Stock owned of record as of the date
of this Voting Agreement:
-------------------
Number of additional outstanding shares of
Company Common Stock owned beneficially (but
not of record) as of the date of this Voting
Agreement:
----------------------------------
9
<PAGE> 10
Number of options and other rights to
acquire shares of Company Common Stock owned
of record as of the date of this Voting
Agreement:____________________
Number of additional options and other
rights to acquire shares of Company Common
Stock owned beneficially (but not of record)
as of the date of this Voting
Agreement:____________________
10
<PAGE> 11
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of ACT Networks, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Jerry Shaw-Yau Chang, Richard J. Heaps and
Clarent Corporation, a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's voting rights on the
matters referred to in the third paragraph of this proxy with respect to (i) the
issued and outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified beneath
the undersigned's signature on the signature page of this proxy and (ii) any and
all other shares of capital stock of the Company which the undersigned may
acquire after the date hereof. (The shares of the capital stock of the Company
referred to in clauses "(i)" and "(ii)" of the immediately preceding sentence
are collectively referred to as the "Shares.") Upon the execution hereof, all
prior proxies given by the undersigned with respect to any of the Shares are
hereby revoked, and no subsequent proxies will be given with respect to any of
the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Copper Acquisition
Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent, and the
Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings given to such terms in the
Reorganization Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier of the
date upon which the Reorganization Agreement is validly terminated or the date
upon which the Effective Time occurs (the "Expiration Date") at any meeting of
the stockholders of the Company, however called, or in any action by written
consent of stockholders of the Company:
(i) in favor of the Merger and the adoption of the
Reorganization Agreement and in favor of each of the other actions
contemplated by the Reorganization Agreement and any action that could
reasonably be expected to facilitate the consummation of the Merger;
and
(ii) in their discretion, with respect to the
following actions (other than the Merger and the transactions
contemplated by the Reorganization Agreement): (A) any extraordinary
corporate transaction, such as a merger, consolidation or other
business combination involving any of the Acquired Companies; (B) any
sale, lease or transfer of a material amount of assets of any of the
Acquired Companies (other than in the ordinary course of business); (C)
any reorganization, recapitalization, dissolution or liquidation of any
of the Acquired Companies; (D) any removal of or change in a majority
of the board of directors of the Company; (E) any amendment to the
Company's certificate of
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<PAGE> 12
incorporation; (F) any material change in the capitalization of the
Company or the Company's corporate structure; or (G) any other action
which is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the
Reorganization Agreement or the Voting Agreement.
The undersigned stockholder may vote the Shares on all matters other
than the matters referred to in the preceding paragraph.
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
In the event that any term, provision, covenant or restriction
contained in this proxy, or the application of any such term, provision,
covenant or restriction to any Person or set of circumstances, shall be
determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this proxy, and the application of such term, provision, covenant
or restriction to Persons or circumstances other than those as to which it is
determined to be invalid, unlawful, void or unenforceable, shall not be impaired
or otherwise affected and shall continue to be valid and enforceable to the
fullest extent permitted by law..
This proxy shall terminate upon the Expiration Date.
Dated: May 1, 2000
--------------------------------------------
Name:
Number of shares of Company Common Stock
owned of record as of the date of this
proxy:
-------------------------------------
2
<PAGE> 1
Exhibit 99.1
CLARENT ANNOUNCES ACQUISITION AGREEMENT WITH ACT NETWORKS
COMBINED COMPANY TO OFFER BROAD SUITE OF INTELLIGENT
CONVERGED TELEPHONY PRODUCTS
REDWOOD CITY AND CALABASAS, CALIF.-MAY 1, 2000- CLARENT(TM) CORPORATION (NASDAQ:
CLRN), a worldwide leader in providing carrier-grade, phone-to-phone Internet
Protocol (IP) telephony solutions, today announced the signing of a definitive
agreement to acquire ACT Networks, Inc. (Nasdaq: ANET). ACT Networks is a
leading provider of multi-service access and voice/data integration products
that enable the convergence of voice, video and data onto one managed network.
Under the terms of the agreement, each outstanding share of ACT Networks will be
exchanged for 0.2546 of a share of Clarent Common Stock. The exchange ratio will
be subject to a `collar' providing a maximum and minimum value of Clarent Common
Stock to be exchanged for each share of ACT Networks at Closing of $18.00 and
$14.00, respectively. Based on Clarent's closing price on Monday, May 1st, 2000
the company will issue approximately $189 million of stock for the outstanding
shares of ACT in addition to assuming ACT Networks' outstanding stock options.
The acquisition has been approved by the boards of directors of both companies
and is expected to close in the third quarter of 2000. This transaction is
subject to various closing conditions, including approval by ACT Networks'
stockholders and termination of the necessary waiting period under the
Hart-Scott-Rodino Act.
"Both Clarent and ACT Networks have pursued this transaction because of the
strong belief that synergies exist between our firms' products and business
strategies" stated Jerry Chang, CEO and President, Clarent Corporation. "We
believe that integration of our product solutions will help service providers
and their enterprise customers migrate to and build more scalable,
cost-effective, end-to-end IP telephony networks. Overall, we believe this
business combination allows Clarent to continue to enhance our leadership
position in the service provider market."
"We believe that both companies have demonstrated leadership and strong customer
momentum in the marketplace," said ACT CEO and President Andre de Fusco. "We
expect that our channel, service provider and large enterprise partners will
look to the combined company as the leading supplier of full-featured IP-based
convergent network solutions. By offering a broad portfolio of voice and data
access equipment, fully integrated command and control software, and
state-of-the-art value-added services, we have the further opportunity to bridge
the gap between in-place legacy voice and data networking systems, and the next
generation IP-based service deployment infrastructure."
Clarent is acquiring ACT to expand its product portfolio to include a
comprehensive suite of data networking service access equipment, to increase
product options available to its service provider customer base, to enhance its
development capabilities, and to blend Clarent's current predominantly direct
sales model with ACT's channel driven distribution strategy.
<PAGE> 2
ACT Networks is expected to become a wholly-owned subsidiary and will continue
to be headquartered in Calabasas, CA. Andre de Fusco, 42, President and CEO of
ACT Networks, will join Clarent's management team as President of the ACT
Networks Division.
Thomas Weisel Partners served as financial advisor to Clarent in this
transaction. ACT was represented by Dain Rauscher Wessels.
FORWARD-LOOKING STATEMENTS
This news release contains forward-looking statements that involve risks and
uncertainties that could cause actual results or outcomes to differ materially
from those contemplated by the forward-looking statements. Factors that could
cause or contribute to such differences include, but are not limited to, risks
relating to the consummation of the contemplated merger, including the risk that
required regulatory clearances or stockholder approval might not be obtained in
a timely manner or at all. In addition, statements in this press release
relating to the expected benefits of the contemplated merger are subject to
risks relating to the timing and successful completion of technology and product
development efforts, integration of the technologies and businesses of Clarent
and ACT Networks, unanticipated expenditures, changing relationships with
customers, suppliers and strategic partners and other factors described in the
most recent Form 10-Q, most recent Form 10-K and other periodic reports filed by
each company with the Securities and Exchange Commission.
ADDITIONAL INFORMATION AND WHERE TO FIND IT
Clarent plans to file a Registration Statement on SEC Form S-4 in connection
with the merger, and Clarent and ACT Networks expect to mail a Proxy
Statement/Prospectus to stockholders of ACT Networks containing information
about the merger. Investors and security holders are urged to read the
Registration Statement and the Proxy Statement/Prospectus carefully when they
are available. The Registration Statement and the Proxy Statement/Prospectus
will contain important information about Clarent, ACT Networks, the merger and
related matters. Investors and security holders will be able to obtain free
copies of these documents through the website maintained by the U.S. Securities
and Exchange Commission at http://www.sec.gov. Free copies of the Proxy
Statement/Prospectus and these other documents may also be obtained from Clarent
by mail to Clarent Corporation, 700 Chesapeake Drive, Redwood City, California,
94063, Attention: Investor Relations, telephone: (650) 817-3999.
In addition to the Registration Statement and the Proxy Statement/Prospectus,
Clarent and ACT Networks file annual, quarterly and special reports, proxy
statements and other information with the Securities and Exchange Commission.
You may read and copy any reports, statements or other information filed by
Clarent or ACT Networks at the SEC public reference rooms at 450 Fifth Street,
N.W., Washington, D.C. 20549 or at any of the Commission's other public
reference rooms in New York, New York and Chicago, Illinois. Please call the
Commission at 1-800-SEC-0330 for further information on the public reference
rooms. Clarent's and ACT Networks' filings with the Commission are also
available to the public from commercial document-retrieval services and at the
web site maintained by the Commission at http://www.sec.gov.
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<PAGE> 3
SOLICITATION OF PROXIES; INTERESTS OF CERTAIN PERSONS IN THE MERGER.
ACT Networks will be, and certain other persons named below may be, soliciting
proxies from ACT Networks stockholders in favor of the adoption of the merger
agreement. The directors and executive officers of ACT Networks and the
directors and executive officers of Clarent may be deemed to be participants in
ACT Networks' solicitation of proxies.
The following are the directors and executive officers of ACT Networks:
NAME POSITION
- ---- --------
Andre de Fusco President, Chief Executive Officer, and Director
William W. Ambrose Director
Archibald J. McGill Director
Frederick W. Gluck Director
Robert Musslewhite Director
Dave Weisman Vice President, Marketing
Alain Gravel Vice President, Engineering
Robert J. Faulk Chief Financial Officer and Vice President, Finance
Eric Grubel Vice President, Worldwide Sales
Ramin Sadr Chief Technology Officer
The following are the directors and executive officers of Clarent:
NAME POSITION
- ---- --------
Jerry Shaw-Yau Chang Chief Executive Officer, President and Director
Michael F. Vargo Senior Vice President, Chief Technology Officer
and Director
William R. Pape Director
Wen Chang Ko Director
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<PAGE> 4
Syaru Shirley Lin Director
Richard J. Heaps Chief Operating Officer, Chief Financial Officer,
General Counsel and Secretary
Mark E. McIlvane Senior Vice President, Worldwide Sales
Heidi H. Bersin Senior Vice President, Corporate Marketing
and Communications
Mong Hong (Mahan) Wu Senior Vice President and General Manager,
Asia Pacific
Peter K. Bohacek Senior Vice President, Business Development
and Product Marketing
The directors and executive officers of ACT Networks have interests in the
merger, some of which may differ from, or may be in addition to, those of ACT
Networks' stockholders generally. Those interests include:
* in connection with the merger, Andre de Fusco, Alain Gravel, and certain
key engineers have entered or will enter into employment and
noncompetition agreements with Clarent;
* certain of the directors and executive officers of ACT Networks may own
options to purchase shares of ACT Networks common stock which will become
vested and exercisable in connection with the merger;
* certain of the directors and executive officers of ACT Networks are
covered by severance plans that are triggered in connection with the
merger; and
* Clarent has agreed to provide indemnification and director and officer
liability insurance coverage to the directors and executive officers of
ACT Networks following the merger.
ABOUT CLARENT CORPORATION
Clarent Corporation is a premier provider of scalable, IP telephony products to
carriers and Internet service providers around the world. Clarent's intelligent
architecture and the Clarent Command Center enable Clarent products to route,
manage, inter-connect and terminate high volumes of calls for service provider
customers including the world's largest long distance telecommunication
companies. According to an iLocus report published in 1999, more minutes travel
across Clarent-enabled networks worldwide than those of any other equipment
supplier.*
Founded in July 1996, Clarent is headquartered in Redwood City, California and
has offices in major cities in Asia, Europe, Latin America and North America.
Additional information about Clarent is available at www.clarent.com.
# # #
Clarent is a registered trademark of Clarent Corporation in the United States
and other jurisdictions. All other company or product names mentioned may be
trademarks or registered trademarks of the respective companies with which they
are associated.
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* "IP Telephony Clearinghouses A New Business Model". Published November 1999 by
iLocus. iLocus, a division of Cape Saffron Ltd., is an UK-based research group
focused on the IP telephony industry. www.ilocus.com
ACT Networks and NetPerformer are registered trademarks and ServiceXchange and
PowerCell are trademarks of ACT Networks.
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