Section 5.12. Financing.
(a) Parent has delivered to the Company true and complete copies of (i) the executed commitment
letter, dated as of the date hereof, among Parent and the financial institutions party thereto including all exhibits, schedules and annexes to such letter in effect as of the execution and delivery of this Agreement and (ii) the executed fee
letters related thereto (together, the “
Debt Commitment Letter,” and, subject to the last sentence of
Section 7.13(c), the provision of funds as set forth therein, the “
Financing”) (it being understood that such fee
letters have been redacted to remove fees, the rates and amounts in the “market flex”, if any, securities demand provisions, if any, and other economic terms that would not adversely affect the amount, conditionality, availability or
termination of the Financing). As of the execution and delivery of this Agreement, other than the Debt Commitment Letter, there are no side letters or other written agreements, contracts or arrangements that impose conditions or other
contingencies related to the funding of the full amount of the Financing. As of the execution and delivery of this Agreement, there are no conditions or other contingencies related to the funding of the full amount of the Financing, other than
as set forth in the Debt Commitment Letter. The commitments contained in the Debt Commitment Letter have not been withdrawn or rescinded in any respect prior to the date of this Agreement. As of the execution and delivery of this Agreement,
the Debt Commitment Letter represents (A) a valid, binding and enforceable obligation of Parent and (B) to the knowledge of Parent, a valid, binding and enforceable obligation of each other party thereto, in the case of each of clauses (A) and
(B), except as may be limited by the Enforceability Limitations. As of the execution and delivery of this Agreement, (i) the Debt Commitment Letter has not been amended, restated, supplemented or otherwise modified, or compliance with any of
the terms waived and (ii) no commitment under the Debt Commitment Letter has been withdrawn, terminated or rescinded in any respect. Parent or the Parent Subsidiaries have fully paid (or caused to be paid) any and all commitment fees and other
amounts that are required to be paid pursuant to the terms of the Debt Commitment Letter on or prior to the execution and delivery of this Agreement, and will fully pay (or cause to be paid) any such amounts due on or before the Closing
Effective Time. As of the execution and delivery of this Agreement, no event has occurred, which, with or without notice, lapse of time or both, would reasonably be expected to constitute a breach or default on the part of Parent or, to the
knowledge of Parent, any other party to the Debt Commitment Letter. Assuming satisfaction of the conditions set forth in
Article VIII, Parent has no reason to believe that any of the conditions to funding set forth in the Debt
Commitment Letter will not be satisfied, nor does Parent have knowledge, as of the execution and delivery of this Agreement, that the Financing will not be made available to Parent on the Closing Date in accordance with the terms of the Debt
Commitment Letter.
(b) Assuming the accuracy of the representations and warranties set forth in Article IV and the Company’s compliance with its obligations in this Agreement, the proceeds of the
Financing, if funded, together with any available cash of Parent and the Parent Subsidiaries, shall constitute sufficient funds for Parent and the Parent Merger Subs to (i) make all cash payments contemplated to be made by them under this
Agreement in connection with the Transactions (including the repayment or prepayment of the obligations under the Company Credit Agreement in an amount up to the obligations (other than obligations which, by the terms of the Company Credit
Agreement (and any related loan documents), survive termination thereof) outstanding thereunder as of the date hereof plus any additional amounts permitted to be incurred thereunder after the date hereof in accordance with the terms of this
Agreement), and (ii) pay all related fees and expenses required to be paid by them on the Closing Date.
Section 5.13.
Solvency. Assuming the accuracy of the representations and warranties of the Company in
Article IV, immediately after giving
effect to the consummation of the transactions contemplated by this Agreement (including the payment of all of the Merger Consideration, the repayment of any Indebtedness, and all other amounts, fees and expenses required to be paid in
connection therewith), (a) the fair saleable value (determined on a going-concern basis) of the assets of Parent and the Parent Subsidiaries, taken as a whole, will be greater than the total amount of their liabilities, taken as a whole
(including all liabilities, whether or not reflected in a balance sheet prepared in accordance with GAAP, and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed), (b) Parent and the Parent Subsidiaries
will be able to pay their debts and obligations in the ordinary course of business as they become due and (c) Parent and the Parent Subsidiaries will have adequate capital to carry on their businesses and all businesses in which they are about
to engage.
Section 5.14.
Finders and Brokers. Neither Parent nor any Parent Subsidiary has employed
or engaged any investment banker, broker or finder in connection with the Transactions who is entitled to any fee or any commission from the Company or any of the Company Subsidiaries in connection with this Agreement or upon consummation of
the Transactions based on arrangements made by Parent or a Parent Subsidiary.
Section 5.15.
Stock Ownership. Assuming the accuracy of the
Company’s representations and warranties set forth in
Section 4.23, Parent is not, nor at any time for the past three years has been, an “interested stockholder” of the Company as defined in Section 203 of the DGCL. Neither Parent nor
any Parent Subsidiary directly or indirectly owns as of the date hereof, and at all times
for the past three years through the date hereof, neither Parent nor any Parent Subsidiary has owned, beneficially or
otherwise, any shares of Company Common Stock.
Section 5.16.
No Merger Sub Activity. Since its date of formation, neither Merger Sub 1 nor NewCo has engaged in any activities other than in connection
with this Agreement and the Transactions.
Section 5.17.
Certain Tax Matters. Neither Parent nor any of its Subsidiaries has taken or agreed to take any action, or is aware of any facts or
circumstances, in each case, that would prevent or impede the Integrated Transaction from qualifying for the Intended Tax Treatment.
ARTICLE VI
COVENANTS RELATING TO CONDUCT OF BUSINESS
PENDING THE TRANSACTIONS
Section 6.1.
Conduct of Business by the Company Pending the Closing; Notification of Certain
Matters.
(a) The Company agrees that between the date hereof and the earlier of the Closing Effective Time or the date, if any, on which this Agreement is validly
terminated pursuant to
Section 9.1, except as set forth in
Section 6.1(a) of the Company Disclosure Letter, as may be expressly required or contemplated by this Agreement, as required by applicable Law or as consented to in
writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company
(a) shall, and shall cause each Company Subsidiary to, use reasonable best efforts to conduct its business
in all material respects in the ordinary course of business consistent with past practice and use reasonable best efforts to (i) preserve intact its and their present business organizations, goodwill and ongoing businesses, (ii) keep available
the services of its and their present officers and other key employees (other than where termination of such officers and other key employees is for cause) and (iii) preserve its and their present relationships with customers, suppliers,
vendors, distributors, licensors, licensees, Governmental Entities, employees and other Persons with whom it and they have material business relations; and (b) shall not, and shall not permit any Company Subsidiary to, directly or indirectly:
(i) amend, modify, waive, rescind or otherwise change the Company’s or any Company Subsidiary’s certificate of incorporation, bylaws or equivalent organizational
documents;
(ii) authorize, declare, set aside, make or pay any dividends on or make any
distribution with respect to its outstanding shares of capital stock or other equity interests (whether in cash, assets, shares or other securities of the Company or any Company Subsidiary), except for dividends and distributions paid or made
by a wholly owned Company Subsidiary to the Company or another wholly owned Company Subsidiary in the ordinary course of business consistent with past practice;
(iii) enter into any agreement or arrangement with respect to voting or registration, or file any registration statement with the SEC with respect to any of its capital
stock or other equity interests or any other securities;
(iv) adjust, split, combine, subdivide, reduce or reclassify any of its capital stock or other equity interests, or redeem, purchase or
otherwise acquire any of its capital stock or other equity interests (other than to satisfy applicable Tax withholdings or the exercise price upon the exercise or vesting of any Company Equity Award outstanding as of the date hereof), or issue
or authorize the issuance of any of its capital stock or other equity interests or any other securities in respect of, in lieu of or in substitution for, shares of its capital stock or other equity interests or any rights, warrants or options
to acquire any such shares of capital stock or other equity interests, except for any such transaction involving only wholly owned Company Subsidiaries in the ordinary course of business consistent with past practice;
(v) issue, deliver, grant, sell, dispose of or encumber, or authorize the issuance, delivery, grant, sale,
disposition or encumbrance of, any shares in the capital stock, voting securities or other equity interest in the Company or any Company Subsidiary or any securities convertible into or exchangeable or exercisable for any such shares, voting
securities or equity interest, or any rights, warrants or options to acquire any such shares, voting securities or equity interest, or any Company Equity Award, “phantom” stock, “phantom” stock rights, stock appreciation rights or stock based
performance units, or take any action to cause to be exercisable or vested any otherwise unexercisable or unvested Company Equity Award, other than (A) issuances of Company Common Stock in respect of the settlement of Company Equity Awards or
exercises of Company Pre-Funded Warrants outstanding as of the date hereof, in all cases in accordance with their respective terms in effect on the date hereof, or (B) transactions solely between the Company and a wholly owned Company
Subsidiary or solely between wholly owned Company Subsidiaries in the ordinary course of business consistent with past practice;
(vi) except as required by applicable Law or any Company Benefit Plan as in existence as of the date hereof, (A) increase the compensation or
benefits payable or to become payable to any of its directors, executive officers or employees;
(B) grant to any of its directors, executive officers or employees any rights to severance or termination pay or
provide for any increase thereto; (C) pay or award, or commit to pay or award, any bonuses, or change in control, retention, or incentive compensation or benefits to any of its directors, executive officers or employees or provide for any
increase thereto; (D) establish, adopt, enter into, amend or terminate any Collective Bargaining Agreement or Company Benefit Plan, other than offer letters with new hire employees entered into in the ordinary course of business, on terms
consistent with past practice that do not violate any other provision of this
Section 6.1(a); (E) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company
Benefit Plan; (F) terminate the employment of any employee at the level of Senior Director or above, other than for cause; (G) hire any new employees at the level of Senior Director or above; or (H) provide any funding for any rabbi trust or
similar arrangement;
(vii) acquire (including by merger, consolidation or acquisition of stock or assets or any other means) or authorize or announce an intention to so acquire, or enter into
any agreements providing for (x) any acquisitions of, any equity interests in or all or a material portion of the assets of any Person or any business or division thereof, or otherwise engage in any mergers, consolidations or business
combinations or (y) acquisitions of material assets, except for, or with respect to, in each case, (A) transactions solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries in the
ordinary course of business consistent with past practice, (B) with respect to clause (y) only, acquisitions of supplies or equipment in the ordinary course of business consistent with past practice, or (C) with respect to clause (y) only,
capital expenditures permitted by Section 6.1(a)(xiii);
(viii) liquidate (completely or partially), dissolve, restructure, recapitalize or effect any other reorganization or similar transaction
(including any restructuring, recapitalization, or reorganization between or among any of the Company and/or the Company Subsidiaries), or adopt any plan or resolution providing for any of the foregoing;
(ix) make any loans, advances or capital contributions to, or investments in, any other Person, except for (A) loans, advances, or capital
contributions solely among the Company and its wholly owned Company Subsidiaries or solely among the Company’s wholly owned Company Subsidiaries in the ordinary course of business consistent with past practice, in each case that do not involve
the transfer of funds between the United States of America and another jurisdiction, (B) extensions of credit to customers in the ordinary course of business consistent with past practice and (C) pursuant to mandatory capital contribution
obligations of any investment fund or joint venture entity to which the Company or any of its Subsidiaries are parties as of the date hereof (which Contracts providing for such mandatory contribution have been made available to Parent prior to
the date hereof), so long as neither the Company nor any Company Subsidiary nor any of their respective Representatives have caused or directed such mandatory capital contribution;
(x) sell, lease, license, assign, transfer, exchange, swap or otherwise dispose of, or subject to any Lien
(other than Permitted Liens), any of its properties, rights or assets (including shares in the capital of the Company Subsidiaries), except (A) dispositions of obsolete, damaged, worn-out or surplus equipment or property no longer necessary in
the conduct of the business or other immaterial equipment or property, in each case, in the ordinary course of business consistent with past practice, (B) leases or subleases of real property or interests therein not used for the conduct of the
Company’s or the Company Subsidiaries’ business, as currently conducted, in each case in the ordinary course of business consistent with past practice, (C) non-exclusive licenses or other non-exclusive grants of rights in, to or under Company
Intellectual Property Rights in the ordinary course of business, and (D) pursuant to transactions solely between the Company and a wholly owned Company Subsidiary or solely between wholly owned Company Subsidiaries in the ordinary course of
business consistent with past practice;
(xi) allow to lapse, or abandon, including by failure to maintain or pay the required fees in any jurisdiction, any material Company
Registered Intellectual Property (except for any expiration of any Patent at the end of its statutory term);
(xii) (A) enter into any Contract that would, if entered into prior to the date hereof, be a Material Contract (other than in the ordinary
course of business consistent with past practice; provided that the foregoing exception shall not apply to any Contract of the type described in clause (i), (ii) or (ix) of Section 4.17(a) or in clause (II) of the proviso to this clause (xii)),
(B) materially modify, materially amend, extend (other than extensions in the ordinary course of business consistent with past practice for terms not greater than one (1) year), renew (other than renewals in the ordinary course of business
consistent with past practice for terms not greater than one (1) year) or terminate any Material Contract (other than in the ordinary course of business consistent with past practice with respect to terminations for cause), (C) waive or release
any material rights or claims under any Material Contract (other than in the ordinary course of business consistent with past practice)or (D) assign any material rights or claims under any Material Contract;
provided
that, for purposes of this clause (xii), a “Material Contract” shall be deemed to include, in addition to the categories in the definition of “Material Contract” set forth in
Section 4.17(a), any Contract (or a series of related
Contracts) with a customer or distributor that provides for (I) payments to the Company or any Company Subsidiary of $5,000,000 or more during the term of such Contract or (II) a term of longer than one year;
(xiii) make any capital expenditure, enter into agreements or arrangements providing for capital expenditure or
otherwise commit to do so, except for (A) capital expenditures not to exceed the amounts set forth in the annual capital budget approved by the Company Board of Directors prior to the date hereof and set forth in
Section 6.1(a)(xiii) of
the Company Disclosure Letter, or (B) capital expenditures not to exceed $5,000,000 in the aggregate incurred in the ordinary course of business consistent with past practice;
(xiv) commence (other than any collection actions in the ordinary course of business consistent with past practice or any action to enforce
the provisions hereof), waive, release, assign, compromise or settle any claim, litigation, investigation or proceeding (for the avoidance of doubt, including with respect to matters in which the Company or any Company Subsidiary is a
plaintiff, or in which any of their officers or directors in their capacities as such are parties), other than the compromise or settlement of claims, litigations, investigations or proceedings that: (x) (A) are for an amount (in excess of
insurance proceeds) for each such compromise or settlement that is, individually, less than $2,000,000 and for all such compromises or settlements that is, in the aggregate, less than $10,000,000, (B) do not impose any injunctive relief on the
Company or any of the Company Subsidiaries (other than insignificant non-monetary restrictions that are customary and ancillary to the monetary relief granted) and do not involve the admission of wrongdoing by the Company, any Company
Subsidiary or any of their respective officers, directors or employees, (C) do not provide for the license of any material Company Owned Intellectual Property Rights and (D) do not relate to claims, litigations, investigations or proceedings
brought by Governmental Entities, other than solely in their capacities as customers of the Company’s or its Subsidiaries’ products and services, or (y) are Tax audits, claims, litigations, investigations, or other proceedings (it being
understood such audits, claims, litigations, investigations, or other proceedings are subject to the restrictions contained in clause (xviii) below);
(xv) make any material change in financial accounting policies, practices, principles or procedures or any of its methods of reporting
income, deductions or other material items for financial accounting purposes, in each case, except as required by GAAP, International Financial Reporting Standards or other recognized accounting standards or principles in non-U.S. jurisdictions
applicable to the Company Subsidiaries, or applicable Law;
(xvi) enter into or amend any Collective Bargaining Agreement or any material agreement with any labor organization, works council, trade
union, labor association or other employee representative, except as required by applicable Law;
(xvii) implement any plant closings or employee layoffs that do not comply with the Worker Adjustment and Retraining Notification Act of
1988, as amended;
(xviii) make, change or
revoke any material Tax election, adopt or change any Tax accounting period or material method of Tax accounting, amend any material Tax Return, settle or compromise any material liability for Taxes or any Tax audit, claim or other proceeding
relating to a material amount of Taxes, enter into any material “closing agreement” within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law)
, surrender any right to
claim a material refund of Taxes, request any material ruling from any Governmental Entity with respect to Taxes, or, except in the ordinary course of business consistent with past practice or as may otherwise be requested by a Tax authority,
agree to an extension or waiver of the statute of limitations with respect to a material amount of Taxes;
(xix) redeem, repurchase, prepay, defease, incur, assume, endorse, guarantee or otherwise become liable for or modify in any material
respect the terms of any Indebtedness, or otherwise issue or sell any debt securities or calls, options, warrants or other rights to acquire any debt securities (directly, contingently or otherwise), except for
(A)
any Indebtedness among the Company and wholly owned Subsidiaries of the Company or among whol
ly owned Subsidiaries of the Company, in each case made in the ordinary course of business consistent with past practice,
(B) guarantees by the Company of Indebtedness (incurred in compliance with this Agreement) of wholly owned Subsidiaries of the Company or guarantees by Subsidiaries of the Company of Indebtedness (incurred in compliance with this Agreement) of
the Company or any wholly owned Subsidiary of the Company, in each case made in the ordinary course of business consistent with past practice, (C) Indebtedness for borrowed money not to exceed $10,000,000 in aggregate principal amount incurred
in the ordinary course of business consistent with past practice, so long as such Indebtedness can be prepaid at par at any time without premium or penalty, or (D) borrowings and other extensions of credit under the Company Credit Agreement and
the other credit facilities and financing arrangements of the Company and the Company Subsidiaries in effect as of the date hereof and made available to Parent and the Receivables Purchase Agreement, in each case as in effect as of the date
hereof (and without any increase in the commitments thereunder after the date hereof), to fund working capital expenses of the Company and the Company Subsidiaries, as applicable, in the ordinary course of business or other expenditures
permitted under this Section 6.1;
provided that neither the Company nor any Company Subsidiary shall sell or otherwise transfer any accounts receivable under the Receivables Purchase Agreement after the
date hereof without the prior written consent of Parent;
(xx) enter into any transactions or Contracts with (A) any affiliate or other Person that would be required to be disclosed by the Company under Item 404 of Regulation
S-K of the SEC, or (B) any Person who beneficially owns, directly or indirectly, more than five percent (5%) of the outstanding shares of Company Common Stock;
(xxi) cancel any of the Company’s or its Subsidiaries’ material insurance policies or fail to pay the premiums on the Company’s or its Subsidiaries’ material insurance
policies, other than any cancellation or termination of such policy in the ordinary course of business consistent with past practice, or fail to maintain such insurance policies in a manner that is consistent with the ordinary course of
business consistent with past practice;
(xxii) (A) acquire any real property or enter into any lease or sublease of real property (whether as a lessor, sublessor, lessee or
sublessee) for annual rent payments in excess of $1,500,000 or for a term that is longer than one (1) year, (B) modify or amend or exercise any right to renew any Company Lease or other lease or sublease of real property, or waive any term or
condition thereof or grant any consents thereunder, (C) grant or otherwise create or consent to the creation of any easement, covenant, restriction, Lien, assessment or charge affecting any real property leased by the Company or any Company
Subsidiary, or any interest therein or part thereof (other than any Permitted Liens), or (D) make any material changes in the construction or condition of any such property, in the case of each of clauses (B) through (D), other than in the
ordinary course of business consistent with past practice;
(xxiii) voluntarily terminate, materially modify or waive in any material respect any material right under any material Company Permit;
(xxiv) adopt or otherwise implement any stockholder rights plan, “poison-pill” or other comparable agreement;
(xxv) amend or modify in any material respect any internal or publicly posted policies and representations (including if posted on products
and services) regarding the collection, use, disclosure, transfer, storage, maintenance, retention, deletion, disposal, modification, protection or Processing of Personal Data; or
(xxvi) agree or authorize, in writing or otherwise, to take any of the foregoing actions.
(b) The Company shall give prompt written notice to Parent: (i) of
any notice or other communication received by the Company or any Company Subsidiary from any Governmental Entity in connection with this Agreement or the Transactions, or from any Person alleging that the consent of such Person is or may be
required in connection with the Transactions that would be material to the Company and its Subsidiaries, taken as a whole, (ii) of any material Proceeding commenced or, to the Company’s Knowledge, threatened in writing against the Company or
any Company Subsidiary, in each case relating to the Transactions, and (iii) upon becoming aware of the occurrence or impending occurrence of any event or circumstance relating to the Company or any Company Subsidiary that would reasonably be
expected to result in a Company Material Adverse Effect;
provided,
however, that the delivery of any notice pursuant to this
Section 6.1(b) shall not
cure any breach of any representation or warranty hereunder or otherwise limit the remedies available hereunder to any Party.
(c) From and after the date hereof until the earlier of the Closing Effective Time and the termination of this Agreement in accordance with Article IX, the Company shall, and
shall cause the Company Subsidiaries to, cooperate in good faith with Parent to take the actions set forth on Section 6.1(c) of the Company Disclosure Letter.
Section 6.2.
Conduct of Business by Parent Pending the Closing.
Parent agrees that between the date hereof and the earlier of the Closing Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to
Section 9.1, except as set forth in
Section
6.2 of the Parent Disclosure Letter, as specifically required by this Agreement, or as required by applicable Law or as consented to in writing by the Company, Parent shall not, directly or indirectly:
(a) amend, adopt any amendment or otherwise change (whether by merger, consolidation or otherwise) the Parent Governing Documents in a manner that would
adversely affect the ability of any of Parent or the Parent Merger Subs to consummate the Transactions;
(b) adopt or enter into a plan of, or any Contract in respect of, complete or partial liquidation, dissolution, amalgamation, consolidation or recapitalization of Parent, other than with
respect to the Transactions or any transaction that does not adversely affect the ability of any of Parent or the Parent Merger Subs to consummate the Transactions;
(c) authorize, declare, set aside, make or pay any special cash dividends on its outstanding shares of Parent Common Stock (it being understood, for the avoidance of doubt, that regular,
quarterly cash dividends (including any increases to current dividend rates approved by Parent’s board of directors in good faith) shall not be restricted);
(d) split, combine, subdivide or reclassify any of its capital stock; or
(e) agree or authorize, in writing or otherwise, to take any of the foregoing actions.
Section 6.3.
No Solicitation by the Company.
(a) F
rom and after the date hereof until
the earlier of the Closing Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to
Section 9.1, the Company agrees that it, the Company Board of Directors (including any committee thereof) and the
Company’s officers shall not, and the Company shall cause the Company’s Subsidiaries not to, and the Company shall cause its and their other respective Representatives not to, directly or indirectly: (i) solicit, initiate or knowingly
encourage or facilitate (including by way of providing information) any inquiry, proposal or offer, or the making, submission or announcement of any inquiry, proposal or offer which constitutes or
would
be reasonably expected to lead to an Acquisition Proposal, (ii) participate in any negotiations regarding, or furnish to any Person any nonpublic information relating to the Company or any Company Subsidiary in
connection with an Acquisition Proposal,
other than solely to state that the Company and its Representatives are prohibited hereunder from engaging in any such discussions or negotiations
,
(iii) adopt, approve, endorse or recommend, or publicly propose to adopt, approve, endorse or recommend, any Acquisition Proposal,
(iv) withdraw, change, amend, modify or qualify, or otherwise publicly propose to
withdraw, change, amend, modify or qualify, in a manner adverse to Parent, the Company Board Recommendation, (v) if an Acquisition Proposal has been publicly disclosed, fail to publicly recommend against any such Acquisition Proposal within ten
(10) business days after Parent’s written request that the Company do so (or subsequently withdraw, change, amend, modify or qualify (or publicly propose to do so), in a manner adverse to Parent, such rejection of such Acquisition Proposal) and
reaffirm the Company Board Recommendation within such ten (10) business day period (or,
with respect to any Acquisition Proposals or material amendments, revisions or changes to the terms of any such previously
publicly disclosed Acquisition Proposal that are publicly disclosed within the last ten (10) business
days prior
to the then-scheduled Company Stockholders’ Meeting, fail to take the
actions referred to in this clause (v), with references to the applicable ten (10) business day period being replaced with three business days)
,
(vi) fail
to include the Company Board Recommendation in the Proxy Statement/Prospectus, (vii) approve or authorize, or cause or permit the Company or any Company Subsidiary to enter into, any merger agreement, acquisition agreement, reorganization
agreement, letter of intent, memorandum of understanding, agreement in principle, option agreement, joint venture agreement, partnership agreement or similar agreement, in each case, providing for any Acquisition Proposal (other than an
Acceptable Confidentiality Agreement entered into in accordance with this
Section 6.3) (a “
Company Acquisition Agreement”)
or (viii) commit or agree to do any of the foregoing (any act
described in clauses (iii), (iv), (v), (vi), (vii) and/or (viii) (to the extent related to the foregoing clauses (iii), (iv), (v), (vi) or (vii)), a “
Change of Recommendation”). The Company,
the Company Board of Directors (including any committee thereof) and the Company’s officers shall, and the Company shall cause the Company’s Subsidiaries to, and the Company shall cause its and their other
respective Representatives to, immediately cease any and all existing solicitation, discussions or negotiations with any Persons (or provision of any nonpublic information to any Persons) with respect to any inquiry, proposal or offer that
constitutes, or
could
reasonably be expected to lead to, an Acquisition Proposal. Within one (1) business day following the date hereof, the Company shall (A) request in writing that
each Person (other than Parent) that has executed a confidentiality agreement in connection with its consideration of an Acquisition Proposal or potential Acquisition Proposal within one year prior to the date hereof promptly destroy or return
to the Company all nonpublic information furnished by the Company or any of its Representatives to such Person or any of its Representatives in accordance with the terms of such confidentiality agreement, and (B) terminate access to any
physical or electronic data rooms relating to a possible Acquisition Proposal by any such Person and its Representatives. From and after the date hereof, the Company shall enforce, and not waive, terminate or modify without Parent’s prior
written consent, any confidentiality, standstill or similar provision in any confidentiality, standstill or other agreement;
provided that, if the Company Board of Directors determines in good faith
after consultation with the Company’s outside legal counsel that the failure to waive a particular standstill provision, or other provision with similar effect, would reasonably be expected to be inconsistent with the directors’ fiduciary
duties under applicable Law, the Company may, without the prior written consent of Parent but with written notice to Parent, waive such standstill provision, or other provision with similar effect, solely to the extent necessary to permit the
applicable Person (if it has not been solicited in violation of this
Section 6.3(a)) to make, on a confidential basis to the Company Board of Directors, an Acquisition Proposal, conditioned upon such
Person agreeing to disclosure of such Acquisition Proposal to Parent, in each case as contemplated by this
Section 6.3. For purposes of this
Section 6.3, the term “Person” means any Person or “group,” as defined in Section
13(d) of the Exchange Act, other than, with respect to the Company, Parent or any Parent Subsidiary or any of their Representatives. For the avoidance of doubt, any violation of the restrictions set forth in this
Section 6.3 by the
Company Board of Directors (including any committee thereof), by any of the Company’s officers, by any of the Company’s Subsidiaries or by any of their respective Representatives shall be a breach of this
Section 6.3 by the Company.
For the avoidance of doubt, notwithstanding anything to the contrary contained in this Agreement, any notices required to be made to Parent pursuant to this
Section 6.3 shall not, in and of themselves, be deemed to be a Change of
Recommendation so long as such notices are delivered privately to Parent, except if any such notice would constitute a Change of Recommendation pursuant to the definition thereof.
(b) Notwithstanding the limitations set forth in
Section 6.3(a), if, prior to obtaining the Company Stockholder Approval, the Company receives a bona
fide written Acquisition Proposal that did not result from a breach of
Section 6.3(a), (x) the Company and such Representatives may contact the third party making such Acquisition Proposal solely to request clarifying information
regarding the terms of such Acquisition Proposal and inform such Person of the existence of the provisions in this
Section 6.3, or (y) if the Company Board of Directors determines in good faith (i) after consultation with the Company’s
outside legal counsel and financial advisors that such Acquisition Proposal constitutes a Superior Proposal or
would reasonably be expected to lead to a Superior Proposal and (ii) after consultation with the
Company’s outside legal counsel, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law, then the Company may take the following actions: (x) furnish
nonpublic information with respect to the Company to the Person making such Acquisition Proposal (and its Representatives (and its financing sources)), if, and only if, prior to so furnishing such information, the Company receives from such
Person an executed Acceptable Confidentiality Agreement and the Company also provides Parent, prior to or substantially concurrently with the time such information is provided or made available to such Person or its Representatives, any
non-public information furnished to such other Person or its Representatives that was not previously furnished to Parent, and (y) engage in discussions or negotiations with such Person (and its Representatives (and its financing sources)) with
respect to such Acquisition Proposal.
(c) The Company shall promptly (and in any event within 24 hours) notify Parent of any receipt by the
Company of any Acquisition Proposal or any proposals or inquiries that would reasonably be expected to lead to an Acquisition Proposal, or any inquiry or request for nonpublic information relating to the Company or any Company Subsidiary by any
Person who has made or would reasonably be expected to make an Acquisition Proposal. Such notice shall indicate the identity of the Person making the Acquisition Proposal, inquiry or request, and the material terms and conditions of any such
proposal or offer or the nature of the information requested pursuant to such inquiry or request, including unredacted copies of all written requests, proposals or offers, including proposed agreements received by the Company or, if such
Acquisition Proposal is not in writing, a reasonably detailed written description of the material terms and conditions thereof. Without limiting the Company’s other obligations under this
Section 6.3, the Company shall keep Parent
reasonably informed on a prompt and timely basis of the status and material terms (including any material amendments or proposed amendments to such material terms (with any amendments or proposed amendments to economic terms being deemed
material for this purpose)) of any such Acquisition Proposal or potential Acquisition Proposal and keep Parent reasonably informed on a prompt and timely basis as to the nature of any information requested of the Company with respect thereto.
Without limiting the Company’s other obligations under this
Section 6.3, the Company shall promptly provide (and in any event within one business day) to Parent any material nonpublic information concerning the Company provided to any
other Person in connection with any Acquisition Proposal that was not previously provided to Parent. Without limiting the foregoing, the Company shall promptly (and in any event within 24 hours after such determination) inform Parent in
writing if the Company determines to begin providing information or to engage in discussions or negotiations concerning an Acquisition Proposal pursuant to
Section 6.3(a). Unless this Agreement has been validly terminated pursuant to
Section
9.1 or in connection with a Change of Recommendation resulting from a Superior Proposal, the Company shall not take any action to exempt any Person other than Parent or the Parent Merger Subs from the restrictions on “business
combinations” contained in any applicable Takeover Statute or in the Company Governing Documents, or otherwise cause such restrictions not to apply. The Company agrees that it will not, directly or indirectly, enter into any agreement with any
Person which directly or indirectly prohibits the Company from providing any information to Parent in accordance with, or otherwise complying with, this
Section 6.3(b).
(d) Notwithstanding anything in this
Section 6.3 to the contrary, but subject to
Section 6.3(e), at any time prior to obtaining the Company
Stockholder Approval, the Company Board of Directors may
(i) make a Change of Recommendation (only of the type contemplated by
Section 6.3(a)(iv),
Section 6.3(a)(vi) or
Section 6.3(a)(viii) (to the extent related to
Section 6.3(a)(iv) or
Section 6.3(a)(vi))) in response to an Intervening Event if the Company Board of Directors has determined in good faith after consultation with the
Company’s outside legal counsel that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law or (ii) make a Change of Recommendation and cause the Company to
terminate this Agreement pursuant to and in accordance with
Section 9.1(g) in order to enter into a definitive agreement providing for an Acquisition Proposal (that did not result from a breach of
Section 6.3(a)), which the
Company Board of Directors determines in good faith after consultation with the Company’s outside legal counsel and financial advisors is a Superior Proposal, but only if the Company Board of Directors has determined in good faith after
consultation with the Company’s outside legal counsel that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable Law;
provided
that, notwithstanding anything to the contrary herein, neither the Company nor any Company Subsidiary shall enter into any Company Acquisition Agreement unless this Agreement has been validly terminated in accordance with
Section 9.1(g)
or substantially concurrent with such termination.
(e) Prior to the Company taking any action permitted (i) under
Section 6.3(d)(i), the Company shall provide Parent with
four business days’ prior written notice advising Parent it intends to effect a Change of Recommendation and specifying, in reasonable detail, the reasons therefor, and during such four business day period, the Company shall cause its
Representatives (including its executive officers) to negotiate in good faith (to the extent Parent desires to negotiate) any proposal by Parent to amend the terms and conditions of this Agreement in a manner that would obviate the need to
effect a Change of Recommendation or (ii) under
Section 6.3(d)(ii), the Company shall provide Parent with four business days’ prior written notice advising Parent that the Company Board of Directors intends to take such action and
specifying the material terms and conditions of the Acquisition Proposal, including a copy of any proposed definitive documentation. During such four business day period, the Company shall cause its Representatives (including its executive
officers) to negotiate in good faith (to the extent Parent desires to negotiate) any proposal by Parent to amend the terms and conditions of this Agreement such that such Acquisition Proposal would no longer constitute a Superior Proposal. At
the end of such four business day period and prior to taking any action permitted under
Section 6.3(d), the Company Board of Directors shall again make all of the required determinations under
Section 6.3(d), after taking into
account in good faith any amendments proposed by Parent. With respect to
Section 6.3(d)(ii), if there are any material amendments, revisions or changes to the terms of any such Superior Proposal (including any revision to the amount,
form or mix of consideration the Company Stockholders would receive as a result of the Superior Proposal), the Company shall comply again with this
Section 6.3(e), with references to the applicable four business day period being
replaced by two business days.
(f) Nothing in this Agreement shall prohibit the Company or the Company Board of Directors from (i) disclosing to the Company Stockholders a position
contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act, (ii) making any “stop, look and listen” communication to the Company Stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act, or any similar
statement in response to any publicly disclosed Acquisition Proposal, (iii) making any factually accurate public statement that solely describes the Company’s receipt of an Acquisition Proposal, the terms thereof and the identity of the person
making such Acquisition Proposal, and the operation of this Agreement with respect thereto or (iv) making any disclosure to the stockholders of the Company, if the Company Board of Directors determines in good faith (after consultation with the
Company’s outside legal counsel) that the failure to so disclose would be reasonably likely to constitute a breach of the fiduciary duties of the Company Board of Directors under applicable Law;
provided
that any “stop, look and listen” statement, or any such similar statement, also includes an express reaffirmation of the Company Board Recommendation. For the avoidance of doubt, this
Section 6.3(f) shall not permit the Company Board
of Directors to make (or otherwise modify the definition of) a Change of Recommendation except to the extent expressly permitted by
Section 6.3(d) and
Section 6.3(e).
ARTICLE VII
Section 7.1.
Access; Confidentiality; Notice of Certain Events.
(a) From the date hereof until the earlier of the Closing Effective Time or the date, if any, on which this Agreement is validly terminated pursuant to Section 9.1, to the extent
permitted by applicable Law, the Company shall, and shall cause each Company Subsidiary to, afford to Parent and Parent’s Representatives reasonable access during normal business hours and upon reasonable advance notice to the Company’s and the
Company Subsidiaries’ offices, properties, Contracts, personnel, books and records and, during such period, the Company shall, and shall cause each Company Subsidiary to, furnish as promptly as practicable to Parent all information (financial
or otherwise) concerning its business, properties, offices, Contracts and personnel as Parent may reasonably request (including information for purposes of transition and integration planning). Notwithstanding the foregoing, the Company shall
not be required by this Section 7.1 to provide Parent or Parent’s Representatives with access to or to disclose information (i) that is prohibited from being disclosed pursuant to the terms of a confidentiality agreement with a third
party entered into prior to the date hereof (provided, however, that the Company shall use its reasonable best efforts to obtain the required consent of such third party to such access or disclosure or, if unable to do so, to make appropriate
substitute arrangements to permit reasonable access or disclosure not in violation of such consent requirement), (ii) the disclosure of which would be reasonably likely to violate applicable Law (provided,
however, that the Company shall use its reasonable best efforts to make appropriate substitute arrangements to permit reasonable disclosure not in violation of such Law) or (iii) the disclosure of which
would be reasonably likely to cause the loss of any attorney-client, attorney work product or other legal privilege (provided, however, that the Company shall
use its reasonable best efforts to allow for such disclosure to the maximum extent that does not result in a loss of such attorney-client, attorney work product or other legal privilege); provided, however, that such access and information shall be disclosed or granted, as applicable, to counsel for Parent to the extent reasonably required for the purpose of obtaining required approvals or consents,
or making filings or providing notices, subject to prior execution of a common interest or joint defense agreement in customary form. Parent and the Company will cooperate to minimize to the extent reasonably practicable any unnecessary
disruption to the businesses of the Company and the Company Subsidiaries that may result from the requests for access, data and information hereunder. Any access to any properties or facilities of the Company or any Company Subsidiary shall be
subject to the Company’s reasonable security measures and shall not include the right to perform any “invasive” testing or soil, air or groundwater sampling, including, without limitation, any Phase I or Phase II environmental assessments.
(b) Each of the Company and Parent will hold, and will cause its Representatives and affiliates to hold, any nonpublic information, including any information exchanged pursuant to this Section
7.1, in confidence to the extent required by and in accordance with, and will otherwise comply with, the terms of the Confidentiality Agreement.
Section 7.2.
Reasonable Best Efforts.
(a) Subject to the terms and conditions of this Agreement, each Party will use its reasonable best efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate the Transactions as promptly as practicable after the date hereof, including (i) preparing and filing or otherwise
providing, in consultation with the other Party and as promptly as practicable and advisable after the date hereof, all documentation to effect all necessary applications, notices, petitions, filings, and other documents and to obtain as
promptly as practicable all waiting period expirations or terminations, consents, clearances, waivers, licenses, orders, registrations, approvals, permits, and authorizations (collectively, “
Approvals”) necessary or advisable to be
obtained from any Governmental Entity in order to consummate the Transactions as promptly as practicable after the date hereof, and (ii) taking all steps as may be necessary, subject to the limitations in this
Section 7.2, to obtain all
such waiting period expirations or terminations, consents, clearances, waivers, licenses, registrations, permits, authorizations, orders and approvals as promptly as practicable after the date hereof.
(b) In furtherance and not in limitation of the obligations in
Section 7.2(a), each Party agrees to (i) make an appropriate filing of a Notification and Report Form pursuant to the
HSR Act with respect to the Transactions as promptly as practicable, and in any event within ten (10) business days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as
practicable and advisable any additional information and documentary materials that may be requested pursuant to the HSR Act and to take all other actions necessary to cause the expiration or termination of the applicable waiting periods under
the HSR Act as soon as practicable, and (ii) make all other necessary filings as promptly as practicable after the date hereof
and, with respect to the filings set forth on
Section 8.1(e) of the Company
Disclosure Letter, in any event within twenty (20) business days after the execution of this Agreement (unless a later date is mutually agreed between the Parties), and to supply as promptly as practicable and advisable any additional
information and documentary materials that may be requested under any Antitrust Laws or FDI Laws. Parent shall bear all filing fees for the filings required under the HSR Act or any other Antitrust Laws or FDI Laws;
provided that, for the avoidance of doubt, the Company and Parent shall each bear its own advisor and other fees incurred in connection with any applications and filings required under applicable Antitrust Laws or FDI Laws.
(c) In furtherance and not in limitation of the obligations in
Section
7.2(a), each of Parent and the Company agrees to (and shall cause its respective Subsidiaries to) use its reasonable best efforts, and agrees to take (and shall cause its respective Subsidiaries to take), any and all actions to avoid and,
if necessary, eliminate, each and every impediment under any Antitrust Laws or FDI Laws that may be asserted by any Governmental Entity, so as to enable the Closing to occur as promptly as practicable following the date hereof, including: (i)
proposing, negotiating, committing to and/or effecting, by consent decree, hold separate orders, or otherwise, the sale, divestiture, licensing or disposition of Parent’s, the Company’s or any of their respective Subsidiaries’ assets,
properties or businesses, and the entry into such other arrangements, or undertaking other structural or conduct relief or behavioral remedies, in each case, as are necessary to obtain an Approval under any Antitrust Laws or FDI Laws and (ii)
the defense through litigation on the merits of any claim asserted in any Proceeding by any Governmental Entity (or by any other Person pursuant to any Antitrust Law or FDI Law), seeking to delay, restrain, prevent, enjoin or otherwise prohibit
consummation of the Transactions and in the event that any permanent or preliminary injunction or other order is entered or becomes reasonably foreseeable to be entered in any Proceeding that would make consummation of the Transactions unlawful
or that would otherwise prevent or delay consummation of the Transactions, using reasonable best efforts to vacate, modify or suspend such injunction or order;
provided that, notwithstanding anything to
the contrary in this Agreement, no Party shall be required to commence, defend, continue or otherwise pursue any litigation, appeal or other Proceeding contemplated by this clause (ii) or take any other action under this
Section 7.2
from and after the Outside Date (as it may be extended in accordance with
Section 9.1(d));
provided,
however, that nothing in this
Section 7.2
or otherwise in this Agreement shall require Parent or its Subsidiaries or affiliates to (and the Company and its Subsidiaries shall not, without Parent’s prior written consent) (i) propose, negotiate, commit to and effect, by consent decree,
hold separate orders or otherwise, the sale, divestiture, disposition, or license of any assets, properties, products, rights, services or businesses of the Company or its Subsidiaries or any interest therein, or agree to any other structural,
behavioral, conduct or other remedy concerning the Company or its Subsidiaries, (ii) otherwise take or commit to take any actions that would limit the Company’s or its Subsidiaries’ freedom of action with respect to, or its or their ability to
retain any assets, properties, products, rights, services or businesses of the Company or its Subsidiaries or any interest or interests therein (each of clauses (i) and (ii), a “
Company Restriction”), in each case of clauses (i) and
(ii), other than Company Restrictions that would not individually or in the aggregate reasonably be expected to result in a material adverse effect on the Company and its Subsidiaries, taken as a whole (a “
Permitted Company Restriction”)
or (iii) take any action of the type contemplated by clauses (i) or (ii) with respect to Parent and its Subsidiaries (other than the Company and its Subsidiaries) (clause (iii), a “
Parent Restriction”) in the case of clause (iii), other
than Parent Restrictions that would not individually or in the aggregate reasonably be expected to result in more than an immaterial impact on Parent and its Subsidiaries, taken as a whole, other than actions solely to the extent necessary to
give effect to Permitted Company Restrictions (a “
Permitted Parent Restriction”);
provided,
however, that the Parties shall not take any action that
constitutes a Permitted Company Restriction or Permitted Parent Restriction unless the effectiveness of such action is conditioned on the Closing occurring;
provided,
further,
that nothing in this
Section 7.2 or otherwise in this Agreement shall require any Party or its Subsidiaries or affiliates to commit to or effect any Company Restriction or Parent Restriction that is not conditioned upon the consummation
of the Transactions.
(d) Each of Parent and the Company shall, in connection with and without
limiting the efforts referenced in this
Section 7.2 to obtain all Approvals for the Transactions under the HSR Act or any other Antitrust Laws or FDI Laws, (i) cooperate in all respects and consult with each other in connection with any
filing or submission and in connection with any investigation or other inquiry, including any proceeding initiated by a private party, including by allowing the other Party to have a reasonable opportunity to review in advance and comment on
drafts of filings and submissions and reasonably considering in good faith comments of the other Party, (ii) promptly inform the other Party of any communication received by such Party from, or given by such Party to, the Antitrust Division of
the Department of Justice (the “
DOJ”), the Federal Trade Commission (the “
FTC”) or any other Governmental Entity, by promptly providing copies to the other Party of any such written
communications, and of any material communication received or given in connection with any proceeding by a private party, in each case regarding any of the Transactions and (iii) permit the other Party a reasonable opportunity to review in
advance any communication that it gives to, and consult with each other in advance of any meeting, substantive telephone call or conference with, the DOJ, the FTC or any other Governmental Entity, or, in connection with any proceeding by a
private party, with any other Person, and to the extent permitted by the DOJ, the FTC or other applicable Governmental Entity or other Person, give the other Party reasonable advance notice of, and the reasonable opportunity to attend and
participate in, any meetings, substantive telephone calls or conferences with the DOJ, the FTC or other Governmental Entity or other Person;
provided,
however,
that materials required to be provided pursuant to the foregoing clauses (i)-(iii) may be redacted (A) to remove references concerning the valuation of Parent, the Company or any of their respective Subsidiaries, (B) as necessary to comply with
contractual arrangements existing as of the date hereof and (C) as necessary to address reasonable privilege or confidentiality concerns;
provided,
further, that
each of Parent and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other under this
Section 7.2(d) as “Antitrust Counsel Only Material”
or “FDI Counsel Only Material”. Without limiting Parent’s obligation to use reasonable best efforts to take all steps as may be necessary, in accordance with and subject to the limitations in this
Section 7.2,
to obtain all required Approvals so as to enable the Closing to occur as promptly as practicable following the date hereof, Parent will control the ultimate strategy and timing for securing approvals and expiration of relevant waiting periods
under the Antitrust Laws and FDI Laws;
provided, that (i) Parent shall give the Company a reasonable opportunity to evaluate and provide input with respect to strategic decisions regarding obtaining
any required regulatory approvals and give good faith consideration to the Company’s input and (ii) no Party shall delay or extend any waiting period or comparable period under the Antitrust Laws or FDI Laws (including by a “pull and refile”
under the HSR Act) or enter into any agreement, arrangement or understanding with any Governmental Entity not to consummate the Transactions (including any “timing agreement”), without the prior written consent of each of Parent and the
Company.
(e) In connection with and without limiting the foregoing, the Company and Parent shall cooperate to give any notices to third parties required under Contracts,
and the Company and Parent shall use, and cause each of their respective Subsidiaries to use, their respective reasonable best efforts to obtain any third party consents to any Contracts that are necessary, proper or advisable to consummate the
Transactions;
provided that each of the Parties acknowledges and agrees that obtaining any such consent or approval shall not, in and of itself, be a condition to consummation of the Transactions.
Notwithstanding anything to the contrary herein, none of Parent, the Company or any of their respective Subsidiaries shall be required to pay any consent or other similar fee, payment or consideration, make any other concession or provide any
additional security (including a guaranty), to obtain such third party consents (except, in the case of the Company, if requested by Parent and either (a) reimbursed or indemnified by Parent or (b) subject to the occurrence of the Closing
Effective Time).
(f) Each of the Parties hereto agrees that, from the date of this Agreement until the earlier of the Closing Effective Time and the date, if any, on which this Agreement is terminated in
accordance with Section 9.1, it shall not, and shall ensure that none of its Subsidiaries shall, consummate, enter into any agreement providing for, or announce, any investment, acquisition, divestiture, joint venture, merger or other
business combination that would reasonably be expected to materially delay or prevent the satisfaction of the condition set forth in Section 8.1(e) or otherwise materially delay or prevent the consummation of the Transactions.
Section 7.3.
Publicity. So long as this Agreement is in effect, neither the Company nor Parent, nor any of their
respective Subsidiaries, shall issue or cause the publication of any press release or other public announcement or disclosure with respect to the Transactions or this Agreement without the prior written consent of the other Party (such consent
not to be unreasonably withheld, conditioned or delayed), unless such Party determines, after consultation with outside counsel, that it is required by applicable Law or by any listing agreement with or the listing rules of a national
securities exchange or trading market to issue or cause the publication of such press release or other public announcement or disclosure with respect to the Transactions or this Agreement, in which event such Party shall endeavor, on a basis
reasonable under the circumstances, to provide a meaningful opportunity to the other Party to review and comment upon such press release or other announcement or disclosure in advance and shall give due consideration to all reasonable
additions, deletions or changes suggested thereto;
provided,
however,
that (a) neither Party shall be required by this
Section
7.3 to provide any such review or comment to the other in connection with the Company’s receipt of (and the existence of) an Acquisition Proposal or a Change of Recommendation and matters directly related thereto and (b) the Parties shall
not be required by this
Section 7.3 to provide any such review or comment to the other Party to the extent that such release, announcement or disclosure relates to any dispute between the Parties relating to this Agreement;
provided,
further, that each Party and their respective Subsidiaries and Representatives may make statements that are consistent with previous press releases, public
disclosures or public statements made by Parent or the Company in compliance with this
Section 7.3.
Section 7.4.
D&O Insurance and Indemnification.
(a) For six years from and after the Closing Effective Time, Parent shall, and shall cause NewCo Surviving Company to, indemnify
and hold harmless all past and present directors and officers of the Company and the Company Subsidiaries (collectively, the “
Indemnified Parties”) against any costs (including reasonable attorneys’ fees) and expenses (including
advancing costs (including reasonable attorneys’ fees) and expenses prior to the final disposition of any actual or threatened claim, suit, proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable Law
and the Company Governing Documents;
provided that such Indemnified Party agrees in advance to return any such funds to which a court of competent jurisdiction determines in a final, nonappealable
judgment that such Indemnified Party is not ultimately entitled), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any actual or threatened claim, action, investigation, suit or
proceeding, whether civil, criminal, administrative or investigative, in respect of acts or omissions occurring or alleged to have occurred at or prior to the Closing Effective Time (including acts or omissions occurring in connection with the
approval of this Agreement and the consummation of the Transactions), whether asserted or claimed prior to, at or after the Closing Effective Time, in connection with such Persons serving or having served as an officer, director, employee or
agent of another corporation or of a limited liability company, partnership, joint venture, trust, enterprise or nonprofit entity if such service was at the request of the Company, to the fullest extent permitted by applicable Law and the
Company Governing Documents or the organizational documents of the applicable Company Subsidiary (as applicable) or any indemnification agreements with such Persons in existence on the date of this Agreement and provided to Parent prior to the
date of this Agreement. The Parties agree that the foregoing rights to indemnification and advancement shall also apply with respect to any action to enforce this provision and that all rights to elimination of liability, indemnification and
advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Closing Effective Time, whether asserted or claimed prior to, at or after the Closing Effective Time, now existing in favor of the
Indemnified Parties as provided in their respective certificate of incorporation or bylaws (or comparable organizational documents) or in any indemnification agreement in existence on the date of this Agreement and provided to Parent prior to
the date of this Agreement shall survive the Transactions and shall continue in full force and effect in accordance with the terms thereof. Notwithstanding anything herein to the contrary, if any Indemnified Party notifies Parent on or prior
to the sixth (6th) anniversary of the Closing Effective Time of a matter in respect of which such Person intends in good faith to seek indemnification pursuant to this
Section 7.4, the provisions of this
Section 7.4 shall
continue in effect with respect to such matter until the final disposition of all claims, actions, investigations, suits and proceedings relating thereto.
(b) For six years after the Closing Effective Time, Parent shall cause to be maintained in effect the provisions in (i) the Company Governing Documents and (ii) any indemnification
agreement of the Company or a Company Subsidiary with any Indemnified Party in existence on the date of this Agreement and provided to Parent prior to the date of this Agreement, except to the extent that such agreement provides for an earlier
termination, in each case, regarding elimination of liability, indemnification of officers, directors and employees and advancement of expenses that are in existence on the date hereof, and no such provision shall be amended, modified or
repealed in any manner that would adversely affect the rights or protections thereunder of any such Indemnified Party in respect of acts or omissions occurring or alleged to have occurred at or prior to the Closing Effective Time (including
acts or omissions occurring in connection with the approval of this Agreement and the consummation of the Transactions).
(c) At or prior to the Closing Effective Time, the Company shall purchase a six (6)-year prepaid “tail” policy on terms and conditions providing coverage retentions, limits and other
material terms substantially equivalent to the current policies of directors’ and officers’ liability insurance and fiduciary liability insurance maintained by the Company and the Company Subsidiaries with respect to matters arising at or prior
to the Closing Effective Time; provided, however, that the Company shall not commit or spend on such “tail” policy, in the aggregate, more than three hundred
percent (300%) of the last aggregate annual premium paid by the Company prior to the date hereof for the Company’s current policies of directors’ and officers’ liability insurance and fiduciary liability insurance (the “Base Amount”),
and if the cost of such “tail” policy would otherwise exceed the Base Amount, the Company shall be permitted to purchase as much coverage as reasonably practicable for the Base Amount.
(d) In the event Parent or NewCo Surviving Company or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or
surviving corporation or entity of such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, in each such case, proper provision shall be made so that the successors and assigns of
Parent or NewCo Surviving Company, as the case may be, shall assume the obligations set forth in this Section 7.4. The rights and obligations under this Section 7.4 shall survive consummation of the Transactions and shall not
be terminated or amended in a manner that is adverse to any Indemnified Party without the written consent of such Indemnified Party. The Parties acknowledge and agree that the Indemnified Parties shall be third party beneficiaries of this Section
7.4, each of whom may enforce the provisions thereof.
Section 7.5.
Takeover Statutes. The Company shall use its reasonable best efforts (a) to take all actions necessary so that no Takeover Statute
is or becomes applicable to this Agreement, or any of the Transactions, and (b) if any such Takeover Statute is or becomes applicable to any of the foregoing, to take all action necessary so that the Transactions may be consummated as promptly
as practicable on the terms contemplated by this Agreement, and otherwise to eliminate or minimize the effect of such Takeover Statute on this Agreement and the Transactions. No Change of Recommendation shall change, or be deemed to change, or
permit the Company or the Company Board of Directors to change, in any manner or respect the approval of the Company Board of Directors for purposes of causing any Takeover Statute to be inapplicable to this Agreement or any of the
Transactions.
Section 7.6.
Obligations of Parent and the Company. Parent shall take all action necessary to cause the Parent Merger Subs to perform their respective
obligations under this Agreement and to consummate the Transactions upon the terms and subject to the conditions set forth in this Agreement. The Company shall take all action necessary to perform its obligations under this Agreement and to
consummate the Transactions upon the terms and subject to the conditions set forth in this Agreement.
Section 7.7.
Employee Matters.
(a) Effective as of the Closing Effective Time and for a period of 12 months thereafter, Parent shall provide, or shall cause NewCo Surviving Company to provide, to each employee of the Company or any Company
Subsidiary who continues to be employed by Parent, NewCo Surviving Company or any Subsidiary thereof (the “
Continuing Employees”), (i) at least the same wage rate or base salary as in effect for such Continuing Employee immediately prior
to the Closing Effective Time, (ii) at least the same target annual cash bonus opportunities as in effect for such Continuing Employee immediately prior to the Closing Effective Time and (iii) employee benefits (excluding severance, equity and
other long-term incentive awards, change in control and retention bonuses, nonqualified retirement benefits, defined benefit pensions and post-employment welfare benefits) that are substantially comparable in the aggregate to those in effect
for such Continuing Employee immediately prior to the Closing Effective Time (with the same exceptions).
(b) Effective as of the Closing Effective Time and for a period of 12 months thereafter, Parent shall provide, or shall cause NewCo Surviving Company to provide severance payments and
benefits to each Continuing Employee who is not a participant in the Company’s Severance Plan and whose employment is terminated during such period that are no less favorable than such severance payments and benefits as set forth on Section
7.7(b) of the Company Disclosure Letter.
(c) Parent shall, or shall cause NewCo Surviving Company to, pay to each Continuing Employee an annual bonus amount for the year in which the Closing Date occurs, determined based on
actual performance as determined by the Company in good faith prior to the Closing after consultation with Parent, under the applicable bonus arrangements of the Company, with such bonus payments to be made upon the Closing; provided that (x)
if the Closing Date occurs in 2026, such bonus amount shall be determined without proration (i.e., based on the full annual bonus for the 2026 calendar year); and (y) if the Closing Date occurs in 2027,
such bonus amount shall be prorated for the period beginning on January 1, 2027 and ending on the Closing Date; provided that there will be no duplication of benefits as a result of this Section 7.7(c) if such Continuing
Employee is separately entitled to receive a pro-rata bonus pursuant to any other agreement or arrangement with the Company in the event of a termination of employment.
(d) For all purposes (including purposes of vesting, eligibility to participate and level of benefits) under the employee benefit plans of Parent and its Subsidiaries (including NewCo
Surviving Company and its respective Subsidiaries) providing benefits to any Continuing Employees after the Closing Effective Time (the “New Plans”), each Continuing Employee shall, subject to applicable Law and applicable tax
qualification requirements, be credited with his or her years of service with the Company and its Subsidiaries and their respective predecessors before the Closing Effective Time (including, for the avoidance of doubt, any service credit
provided by the Company or its Subsidiaries to such Continuing Employee in connection with acquisitions occurring prior to the Closing Effective Time) under the corresponding Company Benefit Plan; provided
that the foregoing shall not apply with respect to eligibility to participate or benefit accrual under any defined benefit pension plan or any postemployment health or welfare plan or to the extent that its application would result in a
duplication of benefits. In addition, and without limiting the generality of the foregoing, (i) each Continuing Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the extent that
coverage under such New Plan is of the same type as the Company Benefit Plan in which such Continuing Employee participated immediately before the Closing Effective Time (such plans, collectively, the “Old Plans”), and (ii) (A) for
purposes of each New Plan providing medical, dental, pharmaceutical or vision benefits to any Continuing Employee, Parent or its applicable Subsidiary (including NewCo Surviving Company and its respective Subsidiaries) shall use its
commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such Continuing Employee and his or her covered dependents to the same extent waived under the
corresponding Old Plan and (B) Parent and its applicable Subsidiary (including NewCo Surviving Company and its respective Subsidiaries) shall use commercially reasonable efforts to cause any eligible expenses incurred by such Continuing
Employee and his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of
satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such New Plan.
(e) If, at least 20 business days prior to the Closing Effective Time, Parent provides written notice to the Company directing the Company to terminate its
401(k) plan(s), the Company shall terminate any and all 401(k) plans effective as of the day immediately preceding the day on which the Closing Effective Time occurs (the “
401(k) Termination Date”). In the
event that Parent requests that such 401(k) plan(s) be terminated, the Company shall provide Parent with evidence reasonably satisfactory to Parent that such 401(k) plan(s) have been terminated pursuant to resolution of the Company Board of
Directors at least two business days prior to the day on which the Closing Effective Time occurs;
provided that prior to terminating the Company’s 401(k) plan, the Company shall provide Parent with the
form and substance of any applicable resolutions for review (and the Company shall accept any of Parent’s reasonable comments). If the Company 401(k) plan is terminated pursuant to this
Section 7.7(e), then as soon as reasonably
practicable following the 401(k) Termination Date, Parent shall permit all Continuing Employees who were eligible to participate in the Company 401(k) plan immediately prior to the 401(k) Termination Date to participate in Parent’s 401(k) plan,
and shall permit each such Continuing Employee to elect to transfer his or her account balance when distributed from the terminated Company 401(k) plan, including any outstanding participant loans, to Parent’s 401(k) plan, except to the extent
that accepting such transfers would adversely affect the tax-qualified status of Parent’s 401(k) plan or as may be prohibited by Parent’s 401(k) plan.
(f) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent or any affiliate of Parent
(including NewCo Surviving Company and its respective Subsidiaries), or shall interfere with or restrict in any way the rights of Parent or any affiliate of Parent (including NewCo Surviving Company and its respective Subsidiaries), which
rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement
between Parent, the Company or any affiliate of Parent and the Continuing Employee or any severance, benefit or other applicable plan or program covering such Continuing Employee, or
any Collective Bargaining
Agreement or similar labor agreement with any labor organization, work council or trade union covering such Continuing Employee. Notwithstanding any other provision in this Agreement to the contrary, nothing in this
Section 7.7
shall (i) be deemed or construed to be an amendment or other modification of any Company Benefit Plan or employee benefit plan of Parent or the Parent Merger Subs, and (ii) create any third party rights in any current or former employee or
other service provider of the Company or its affiliates (or any beneficiaries or dependents thereof).
Section 7.8.
Rule 16b-3. Prior to the Initial Effective Time, Parent and the Company shall take all such steps as may be reasonably necessary or
advisable to cause any dispositions of Company Common Stock (including derivative securities) or acquisitions of Parent Common Stock (including derivative securities) pursuant to the Transactions by each individual who is a director or officer
of Parent or the Company subject to the reporting requirements of Section 16(a) of the Exchange Act with respect to Parent or the Company or will become subject to such reporting requirements with respect to Parent, to be exempt under Rule
16b-3 promulgated under the Exchange Act.
Section 7.9.
Stockholder Litigation. The Company shall provide Parent prompt notice of any litigation brought by any stockholder of the Company
or purported stockholder of the Company against the Company, any of its Subsidiaries and/or any of their respective directors or officers relating to the Transactions or this Agreement, and shall keep Parent informed on a prompt and timely
basis with respect to the status thereof. The Company shall give Parent the opportunity to participate (at Parent’s expense) in the defense or settlement of any such litigation and reasonably cooperate with Parent in conducting the defense or
settlement of such litigation, and no such settlement shall be agreed without Parent’s prior written consent, which consent shall not be unreasonably withheld or delayed, except that Parent may, in its sole discretion, withhold such consent to
any settlement which does not include a full release of Parent and its affiliates (including NewCo Surviving Company and its respective Subsidiaries) with respect to all liabilities, causes of action and claims arising out of, or related to,
the claims asserted in such litigation or which imposes an injunction or other equitable relief after the Closing Effective Time upon Parent or any of its respective affiliates (including NewCo Surviving Company and its respective
Subsidiaries). In the event of, and to the extent of, any conflict or overlap between the provisions of this
Section 7.9 and
Section 6.1, or
Section 7.2, the provisions of this
Section 7.9 shall control.
Section 7.10.
Delisting. Each of the Parties agrees to cooperate with the other Parties and use reasonable best efforts in taking, or causing to be
taken, all actions necessary to delist the Company Common Stock from the NYSE and terminate its registration under the Exchange Act;
provided that such delisting and termination shall not be effective
until at or after the Closing Effective Time.
Section 7.11.
Director Resignations. Prior to the Closing, the Company shall use its reasonable best efforts to cause to be delivered to Parent
resignations executed by each director of the Company in office as of immediately prior to the Closing Effective Time and effective upon the Closing Effective Time, and the Company shall cooperate with Parent in preparing for the replacement,
upon the Closing Effective Time, of directors and officers of the Company Subsidiaries with those Persons designated by Parent.
Section 7.12.
Form S-4; Proxy Statement/Prospectus; Company Stockholders’ Meeting.
(a) As promptly as reasonably practicable after the execution of this
Agreement, the Company and Parent shall each jointly prepare and cause to be filed with the SEC the Proxy Statement/Prospectus and the Company and Parent shall jointly prepare, and Parent shall cause to be filed with the SEC, a registration
statement on Form S‑4, in which the Proxy Statement/Prospectus will be included as a prospectus, in connection with the registration under the Securities Act of the Parent Common Stock to be issued in connection with the First Merger. Subject
to
Section 6.3(d), the Company and the Company Board of Directors shall include the Company Board Recommendation in the Proxy Statement/Prospectus. Each of Parent and the Company shall use its reasonable best efforts to (A) cause the
Form S‑4 and the Proxy Statement/Prospectus to comply with the applicable rules and regulations promulgated by the SEC, (B) have the Form S-4 declared effective under the Securities Act as promptly as practicable after such filing (including by
responding to comments from the SEC), and, prior to the effective date of the Form S-4, take all action reasonably required to be taken under any applicable state securities Laws in connection with the issuance of Parent Common Stock in
connection with the First Merger and (C) keep the Form S-4 effective through the Closing Date in order to permit the consummation of the Transactions. Each of Parent and the Company shall furnish all information as may be reasonably requested
by the other in connection with any such action and the preparation, filing and distribution of the Form S-4 and the Proxy Statement/Prospectus. As promptly as practicable after the Form S-4 shall have become effective, the Company shall file
the Proxy Statement/Prospectus with the SEC and use its reasonable best efforts to cause the Proxy Statement/Prospectus to be mailed to its stockholders. No filing of, or amendment or supplement to, the Form S-4 will be made by Parent, and no
filing of, or amendment or supplement to, the Proxy Statement/Prospectus will be made by the Company, in each case without providing the other Party with a reasonable opportunity to review and comment (which comments shall be considered by the
applicable Party in good faith) thereon if reasonably practicable;
provided that, with respect to documents filed by a Party which are incorporated by reference in the Form S-4 or the Proxy
Statement/Prospectus, this right to review and comment shall apply only with respect to information relating to the other Party or such other Party’s business, financial condition or results of operations. If, at any time prior to the Closing
Effective Time, any information relating to Parent or the Company or any of their respective affiliates, directors or officers, should be discovered by Parent or the Company which should be set forth in an amendment or supplement to either the
Form S-4 or the Proxy Statement/Prospectus, so that either such document would not include any misstatement of a material fact or omit to state any material fact necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading, the Party that discovers such information shall promptly notify the other Party and an appropriate amendment or supplement describing such information shall be prepared and, following a reasonable
opportunity for the other Party (and its counsel) to review and comment on such amendment or supplement, promptly filed with the SEC and, to the extent required by applicable Law, disseminated to the stockholders of the Company. Subject to
applicable Law, each Party shall notify the other promptly of the time when the Form S-4 has become effective, of the issuance of any stop order or suspension of the qualification of the Parent Common Stock issuable in connection with the First
Merger for offering or sale in any jurisdiction, or of the receipt of any comments from the SEC or the staff of the SEC and of any request by the SEC or the staff of the SEC for amendments or supplements to the Proxy Statement/Prospectus or the
Form S-4 or for additional information and shall supply each other with copies of all correspondence between either Party or any of its Representatives, on the one hand, and the SEC or its staff, on the other hand, with respect to the Proxy
Statement/Prospectus, the Form S-4 or the Transactions.
(b) Unless this Agreement is terminated in accordance with its terms, and notwithstanding any Change of Recommendation, the Company shall, as promptly as practicable following the
effectiveness of the Form S-4, duly call, give notice of, convene and hold a meeting of its stockholders for the purpose of obtaining the Company Stockholder Approval (the “Company Stockholders’ Meeting”) with a record date and meeting
date to be selected after reasonable consultation with Parent, which meeting date shall be within, subject to adjournment or postponement as provided below, thirty (30) days following the effectiveness of the Form S-4, and, subject to a Change
of Recommendation in accordance with Section 6.3(d), the Company shall use its reasonable best efforts to obtain the Company Stockholder Approval. Within ten business days after the date of this Agreement (and thereafter, upon the
reasonable request of Parent made not more than one time every two weeks), the Company shall conduct a “broker search” in accordance with Rule 14a-13 of the Exchange Act for a record date for the Company Stockholders’ Meeting that is 20
business days after the date of such “broker search.” Notwithstanding anything to the contrary contained herein, the Company shall not postpone or adjourn the Company Stockholders’ Meeting without the prior written consent of Parent; provided that, if at any time following the dissemination of the Proxy Statement/Prospectus, either the Company or Parent reasonably determines in good faith that the Company Stockholder Approval is unlikely
to be obtained at the Company Stockholders’ Meeting, including due to an absence of quorum, then on no more than two (2) occasions (for each of the Company and Parent) and prior to the vote contemplated having been taken, each of the Company
and Parent shall have the right to require an adjournment or postponement of the Company Stockholders’ Meeting for the purpose of soliciting additional votes in favor of this Agreement; provided, further, that no such adjournment or postponement shall delay the Company Stockholders’ Meeting by more than seven days from the prior-scheduled date or to a date on or
after the fifth (5th) business day preceding the Outside Date. Notwithstanding the foregoing, the Company may postpone or adjourn the Company Stockholders’ Meeting if (i) the Company is required to postpone or adjourn the Company
Stockholders’ Meeting by applicable Law, or (ii) the Company Board of Directors or any authorized committee thereof shall have determined in good faith (after consultation with outside legal counsel) that it is necessary or appropriate to
postpone or adjourn the Company Stockholders’ Meeting in order to give Company Stockholders sufficient time to evaluate any information or disclosure that the Company has sent or otherwise made available to such holders by issuing a press
release, filing materials with the SEC or otherwise (including in connection with any Change of Recommendation) (in each case so long as any such information or disclosure was made in compliance with this Agreement); provided that the Company shall be permitted to postpone or adjourn the Company Stockholders’ Meeting pursuant to this clause (ii) on no more than two (2) occasions and no such adjournment or postponement shall delay the
Company Stockholders’ Meeting by more than five days from the prior-scheduled date or to a date on or after the fifth (5th) business day preceding the Outside Date. Notwithstanding any Change of
Recommendation, unless this Agreement has been validly terminated pursuant to Section 9.1, the Company shall submit this Agreement to the stockholders of the Company for adoption at the Company Stockholders’ Meeting and shall not submit
any Acquisition Proposal for approval by the stockholders of the Company.
Section 7.13.
Financing Cooperation.
(a)
Financing Cooperation. Prior to the Closing Effective Time, the Company shall use its
reasonable best efforts to, and shall cause the Company Subsidiaries to use their reasonable best efforts to, and shall use its reasonable best efforts to cause its and their Representatives to, provide all customary cooperation and all
customary financial information, in each case, that is reasonably requested by Parent or the Parent Merger Subs in connection with the Financing (or capital markets issuance in lieu thereof), including:
(i) furnishing to Parent (A) audited consolidated balance sheets and related consolidated statements of income, comprehensive income, stockholders’ equity (deficit) and
cash flows for the Company for each of the three most recently completed fiscal years of the Company ended at least 60 days prior to the Closing Date prepared in accordance with GAAP applied on a basis consistent with that of the most recent
fiscal year and (B) unaudited consolidated balance sheets and related consolidated statements of income, comprehensive income and cash flows (in each case, subject to normal year-end adjustments and absence of footnotes) for each subsequent
fiscal quarter ended on a date that is at least 40 days before the Closing Date;
(ii) furnishing to Parent such information regarding the Company and the Company Subsidiaries as is reasonably requested in writing by Parent (A) in connection with the
arrangement or consummation of the Financing (or capital markets issuance in lieu thereof), (B) reasonably necessary to permit Parent to prepare pro forma financial statements of the type customarily included in marketing and offering documents
for debt financings of Parent, including bank information memoranda, lender and investor presentations and offering memoranda for offerings of debt securities, or (C) necessary to satisfy the conditions set forth in the Debt Commitment Letter
(it being agreed that (I) Parent, and not the Company or the Company Subsidiaries or their respective Representatives, shall be responsible for the preparation of the pro forma financial statements and any other pro forma information and (II)
the Company will not be required to provide any information or assistance relating to (x) the proposed aggregate amount of the Financing, together with assumed interest rates, dividends (if any) and fees and expenses relating to the incurrence
of the Financing, (y) any post-Closing or pro forma cost savings, synergies, capitalization or ownership or other pro forma adjustments related to the Transactions or (z) any financial information related to Parent or any of its Subsidiaries);
(iii) furnishing to the Financing Entities customary authorization letters (subject to customary confidentiality provisions and disclaimers) authorizing the distribution
of information and containing a customary representation to the Financing Entities that the public side versions of such documents, if any, do not include material non-public information about the Company, the Company Subsidiaries or their
respective securities;
(iv) (A) using reasonable best efforts to cause the Company’s independent accountants to provide customary assistance and cooperation reasonably requested by Parent with
any offering of securities, including participating in customary due diligence sessions and providing any customary “comfort” letters with respect to financial information regarding the Company and the Company Subsidiaries contained in the
offering documents relating to any such offering of securities (including customary “negative assurance” comfort for any applicable Financing (or capital markets issuance in lieu thereof)) and (B) providing customary management representation
letters to such auditors to the extent required in connection with such comfort letters;
(v) participating in a reasonable number of meetings, presentations, road shows and sessions with prospective Financing Entities and rating agencies, and assisting
Parent in obtaining corporate and facility credit ratings, in each case in connection with any Financing (or capital markets issuance in lieu thereof);
(vi) furnishing, at least three business days prior to the Closing Date, all documentation and other information regarding the Company and the Company Subsidiaries
required by regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the USA PATRIOT Act and the beneficial ownership regulation (31 C.F.R. § 1010.230), in each case to the extent
reasonably requested by Parent at least ten business days prior to the Closing Date;
(vii) reasonably assisting Parent in the preparation of customary offering and marketing documents (and any supplements thereto) in connection with any Financing (or
capital markets issuance in lieu thereof), including designating whether any information provided to Parent constitutes material non-public information;
(viii) reasonably cooperating with any customary due diligence process as reasonably requested by Parent or the Financing Entities, including participating in a
reasonable number of due diligence sessions, and cooperating with the customary marketing efforts of Parent, in each case, in connection with any Financing (or capital markets issuance in lieu thereof);
(ix) using reasonable best efforts to assist Parent in connection with the preparation and execution of the definitive documents in respect of the Financing (or capital
markets issuance in lieu thereof), including (A) any credit agreements, guarantees, pledge and security documents and other definitive financing documents (and any disclosure schedules thereto), in each case, as may be reasonably requested by
Parent or the Financing Entities, and (B) facilitating the pledging of collateral and the granting of security interests in respect of the Financing; it being understood that such documents will not be recorded or take effect, and no pledge or
security interest in any asset or property of the Company or any Company Subsidiary pursuant to any such document shall be effective, prior to the Closing Effective Time;
(x) using reasonable best efforts to execute and deliver or provide, as applicable, customary evidence of authority, customary officer’s certificates and customary
insurance certificates, in each case, as reasonably requested by Parent and the Financing Entities, it being understood that such documents will not take effect prior to the Closing Effective Time;
(xi) take corporate or other organizational actions reasonably requested by Parent in connection with the consummation of the Financing (which actions shall not be
effective prior to the Closing Effective Time); and
(xii) reasonably cooperating with Parent’s legal counsel in connection with any legal opinions that such legal counsel may be required to deliver in connection with any
Financing (or capital markets issuance in lieu thereof).
(b) Notwithstanding anything to the contrary in this Section 7.13 or Section 7.15, neither the Company nor any Company Subsidiary shall pursuant to this Section 7.13
or Section 7.15:
(i) be required to incur any fees, expenses or other liabilities prior to the Closing Effective Time for which it is not previously or promptly reimbursed or
simultaneously indemnified;
(ii) be required to cause any director, officer, member, partner, accountant, legal counsel, employee or other Representative of the Company or any Company Subsidiary to
take any action that would reasonably be expected to result in such Person incurring any personal liability;
(iii) be required to waive or amend any terms of this Agreement;
(iv) be required to provide any information that is prohibited or restricted from being provided by applicable Law or any contractual obligation existing as of the date
hereof or is legally privileged (provided, however, that the Company shall use its commercially reasonable efforts to provide an alternative means of disclosing
or providing such information to the maximum extent permitted by Law or such contractual obligation or to the maximum extent that does not result in a loss of such legal privilege, as applicable), and in the event that the Company or any
Company Subsidiary does not provide access or information in reliance on this clause, the Company shall provide notice to Parent that information is being withheld; provided, further, that the Company shall provide information restricted from being provided under any contractual obligation to the extent the consequences of a breach of such contractual obligation would reasonably be expected to be
immaterial to the Company;
(v) be required to, nor shall any of their directors, employees, officers, members, partners or managers be required to, adopt resolutions or consents to approve or
authorize the execution of the agreements, documents and instruments pursuant to which the Financing is obtained or to execute, deliver or enter into, or perform any agreement, document or instrument (other than customary authorization letters
and the management representation letters contemplated by Section 7.13(a)(iv)(B) or as set forth in Section 7.15), including any credit or other agreements, guarantees, pledge or security documents or certificates in connection with the
Financing, in each case, that would be effective prior to the Closing Effective Time and any such action, authorization, consent, approval, execution, delivery or performance will only be required of the respective directors, employees,
officers, members, partners or managers of the Company and the Company Subsidiaries who retain their respective positions as of, and immediately after, the Closing Effective Time (except in each case with respect to customary authorization
letters and the management representation letters contemplated by Section 7.13(a)(iv)(B) or as set forth in Section 7.15);
(vi) be required to (or be required to cause their Representatives to) enter into or approve any agreement or other documentation, or agree to any change or modification
of any existing agreement or other documentation that would be effective prior to the Closing Effective Time (except as set forth in the management representation letters contemplated by Section 7.13(a)(iv)(B) or Section 7.15);
(vii) be required to (or be required to cause their Representatives to) provide any indemnity prior to the Closing Effective Time for which it has not received prior
reimbursement or is not otherwise indemnified by or on behalf of Parent;
(viii) be required to (or be required to cause their Representatives to) take any action that would conflict with or violate any charter or other organizational
documents of the Company or any of the Company Subsidiaries as in effect on the date hereof;
(ix) be required to (or be required to cause their Representatives to) take any actions that would cause any representation or warranty in this Agreement to be breached
by the Company or any Company Subsidiary or that would cause any condition set forth in Article VIII to fail to be satisfied (in each case unless Parent waives such breach or failure prior to the Company or any Company Subsidiary taking
such action);
(x) be required to (or be required to cause their Representatives to) take any actions that would unreasonably interfere with the Company’s and the Company
Subsidiaries’ business or operations, taken as a whole;
(xi) be required to (or be required to cause their Representatives to) prepare or furnish (x) pro forma financial statements, (y) any other financial statements (other
than as set forth in clause (a)(i) above) that are not readily available or prepared in the ordinary course of its financial reporting practice or (z) projections; or
(xii) be required to (or be required to cause their Representatives to) provide opinions of internal or external counsel (except as set forth in Section 7.15
prior to the Initial Effective Time).
(c) All non-public or otherwise confidential information regarding the Company or the Company Subsidiaries obtained by Parent or the Parent Merger Subs or
their respective Representatives pursuant to this
Section 7.13 or by them otherwise from or on behalf of the Company shall be kept confidential in accordance with the Confidentiality Agreement;
provided
that, notwithstanding anything to the contrary herein or in the Confidentiality Agreement, such information may be disclosed (i) to prospective lenders, underwriters, initial purchasers, dealer managers and agents during syndication and
marketing of the Financing that enter into confidentiality arrangements customary for financing transactions of the same type as the Financing (including customary “click-through” confidentiality undertakings) and (ii) on a confidential basis
to rating agencies. Any reference in this Agreement to the “Financing” (other than in
Section 5.12) shall include any financing that Parent, the Parent Merger Subs and/or other Subsidiaries of Parent elect to obtain for the purpose of
financing the transactions contemplated hereby or any transaction undertaken in connection herewith (including any offering or incurrence of debt securities, term loans or other Indebtedness in lieu of all or any portion of the Financing),
subject to
Section 7.14.
(d) Use of Logos. The Company hereby consents to the reasonable use of the Company’s and the Company Subsidiaries’ logos solely in connection with the marketing of the financing
for the Transactions; provided that such logos are used solely in the form used by the Company and the Company Subsidiaries and solely in a manner that is not intended to or reasonably likely to harm or
disparage the Company or the Company Subsidiaries or the reputation or goodwill of the Company or the Company Subsidiaries.
(e)
Reimbursement. Promptly upon written request by the Company, Parent will reimburse the Company for any reasonable and documented out-of-pocket
costs and expenses (including reasonable attorneys’ fees) actually incurred by the Company, the Company Subsidiaries and their respective Representatives in connection with the cooperation contemplated by this
Section 7.13,
Section
7.14 or
Section 7.15, other than to the extent any such costs and expenses are incurred as a result of the gross negligence, bad faith or willful misconduct of the Company, any Company Subsidiary or their respective
Representatives, or any such Person’s material breach of this Agreement, or with respect to any material misstatement or omission in information provided in writing hereunder by any of the foregoing Persons for use in connection herewith or
with the Financing.
(f)
Indemnification. The Company, the Company Subsidiaries and its and their respective affiliates and Representatives will be indemnified and held
harmless by Parent from and against any and all liabilities, losses, damages, claims, costs, expenses (including reasonable attorney’s fees), interest, awards, judgments, penalties and amounts paid in settlement suffered or incurred by them in
connection with their cooperation in arranging the Financing pursuant to this Agreement, the provision of information utilized in connection therewith (other than written information provided by or on behalf of the Company) and the cooperation
contemplated by
Section 7.13,
Section 7.14 or
Section 7.15, other than to the extent any such liabilities, losses, damages, claims, costs, expenses, interest, awards, judgments or penalties are the result of the gross
negligence, bad faith or willful misconduct of the Company, any Company Subsidiary or their respective Representatives, or any such Person’s material breach of this Agreement, or with respect to any material misstatement or omission in
information provided in writing hereunder by any of the foregoing Persons for use in connection herewith or with the Financing. This indemnification shall survive the termination of this Agreement.
(a) Efforts to Obtain Financing. Parent and the Parent Merger Subs shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done,
all things necessary, proper or advisable to arrange and obtain the Financing on or prior to the Closing, on the terms and subject solely to the conditions described in the Debt Commitment Letter (it being understood that, for purposes of this
Section 7.14, references to the Debt Commitment Letter shall be deemed to include any fee letter), including using its reasonable best efforts to: (i) maintain in full force and effect the Debt Commitment Letter in accordance with its
terms, (ii) enter into and deliver definitive agreements with respect to the Financing on the terms and conditions contemplated by the Debt Commitment Letter or on such other terms (including under a Permanent Financing (as defined below)) and
without any Prohibited Modification (the “Definitive Debt Financing Agreements”), (iii) satisfy (or obtain a waiver of) on a timely basis all conditions and comply with all obligations applicable to Parent, including with respect to the
payment of any commitment, engagement or placement fees, in the Debt Commitment Letter and the Definitive Debt Financing Agreements, (iv) enforce all of its rights under the Debt Commitment Letter and (v) upon satisfaction or waiver of the
conditions set forth in the Debt Commitment Letter and the Definitive Debt Financing Agreements and in Article VIII, consummate the Financing at or prior to the Closing to the extent necessary to satisfy Parent’s payment obligations
under this Agreement due at the Closing.
(b) Amendments to Debt Commitment Letter. Parent shall not agree to any amendments, restatements, supplements or modifications to, obtain any replacement of, or waive any of its
rights under, the Debt Commitment Letter or the Definitive Debt Financing Agreements, in whole or in part, without the prior written consent of the Company if any such amendment, restatement, supplement, replacement, modification or waiver of
the Debt Commitment Letter or the Definitive Debt Financing Agreements shall: (i) impose new or additional conditions or otherwise amend, modify or expand any conditions to the Financing that would reasonably be expected to make the funding
thereof less likely to occur or delay or prevent the Closing, (ii) reduce the aggregate amount of the Financing to less than the amount required, together with all other sources of cash or other financing sources available to Parent on the
Closing Date, for the satisfaction of all of Parent’s payment obligations under this Agreement due at the Closing, or (iii) adversely impact the ability of Parent to (A) enforce its rights against the other parties to the Debt Commitment Letter
or the Definitive Debt Financing Agreements or (B) cause the Transactions to be timely consummated (the effects described in clauses (i) through (iii), collectively, the “Prohibited Modifications”); or (iv) terminate or cause the
termination of the Debt Commitment Letter or any Definitive Debt Financing Agreement, in each case (with respect to each of clauses (i) through (iv)), other than replacements or reductions of the Debt Commitment Letter or any Definitive Debt
Financing Agreement in connection with the incurrence or issuance of any other debt financing, debt securities or other Indebtedness by Parent in lieu of all or any portion of the Financing (such financing, the “Permanent Financing”) or
Alternative Financing issued or incurred in lieu of all or a portion of any facility contemplated by the Debt Commitment Letter, so long as such Permanent Financing or Alternative Financing (as defined below) does not include any Prohibited
Modifications. Notwithstanding anything to the contrary in this Section 7.14, Parent may, without the prior written consent of the Company, (A) amend, restate, supplement or otherwise modify the Debt Commitment Letter or any Definitive
Debt Financing Agreement to add lenders, lead arrangers, bookrunners, agents, co-agents, managers or similar entities that have not executed the Debt Commitment Letter as of the date hereof, and to reassign titles and roles among, and
reallocate commitments, economics and fee-sharing arrangements among, the existing and additional Financing Entities, (B) amend the Debt Commitment Letter or the Definitive Debt Financing Agreements to give effect to any “market flex”
provisions contained in any fee letter related to the Debt Commitment Letter and (C) increase the amount of the Financing, in each case of clauses (A) through (C), so long as such action does not result in a Prohibited Modification.
(c) Alternative Financing. In the event that all or any portion of the Financing becomes, or is expected to become, unavailable for any reason, in an amount sufficient, together
with all other sources of cash available to Parent on the Closing Date, for the satisfaction of all of Parent’s payment obligations under this Agreement due on the Closing Date, Parent shall (i) notify the Company in writing thereof as promptly
as practicable after obtaining knowledge thereof (and, in any event, within forty-eight (48) hours) and (ii) use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to promptly
arrange and obtain alternative financing (the “Alternative Financing”) (A) in an amount sufficient, together with all other sources of cash available to Parent on the Closing Date, for the satisfaction of all of Parent’s payment
obligations under this Agreement due on the Closing Date and (B) subject to conditions precedent which would not reasonably be expected to materially delay or impair the likelihood of the Closing; provided that in no event shall Parent be
required to seek or accept Alternative Financing on terms and conditions materially less favorable to Parent, in the aggregate (taking into account any “market flex” provisions), than the terms and conditions set forth in the Debt Commitment
Letter as in effect on the date hereof, as determined in the reasonable judgment of Parent.
(d) Upon
(i) obtaining any commitment for any Alternative Financing, Permanent Financing or other financing or (ii) any amendment, restatement, supplement,
replacement, modification or waiver of the Debt Commitment Letter, the debt financing commitments contemplated therein or any other financing, in each case, as permitted by
Section 7.14, references to the “Financing,” “Financing
Parties,” “Definitive Debt Financing Agreements” and “Debt Commitment Letter” (and other like terms in this Agreement) shall be deemed to refer to such Alternative Financing, such amended, restated, supplemented, replaced, modified or waived
Debt Commitment Letter or such other debt financing and, in each case, the commitments thereunder, the agreements with respect thereto and the financial institutions participating therein for all purposes of this Agreement and each such term
shall be construed accordingly.
(e) Information Rights. Parent shall, and shall cause its Representatives to, keep the Company informed as promptly as practicable upon written request in reasonable detail of the
status of its efforts to arrange the Financing. Without limiting the generality of the foregoing, Parent shall (i) upon the Company’s written request, furnish the Company with executed copies of any amendments, restatements, supplements,
replacements, modifications to or waivers of the Debt Commitment Letter, Permanent Financing, Alternative Financing or other financing permitted by Section 7.14 (with any fee letter redacted in a customary manner as described in Section
5.12(a)) promptly upon their execution; and (ii) give the Company prompt written notice (A) of any actual or threatened default or material breach (or any event that, with or without notice, lapse of time or both, would give rise to any
default or material breach) under, or repudiation of, the Debt Commitment Letter or the Definitive Debt Financing Agreements by the Financing Entities, in each case, of which Parent becomes aware, (B) of any termination of the Debt Commitment
Letter, other than in accordance with its terms and (C) of any material dispute or disagreement between or among any parties to the Debt Commitment Letter or any Definitive Debt Financing Agreement relating to the initial availability of the
Financing.
(f) No Financing Condition. Each of Parent and the Parent Merger Subs hereby acknowledges and agrees that obtaining the Financing is not a condition to the Transactions, and that
if the Financing is not obtained, Parent and the Parent Merger Subs will each continue to be obligated, subject to the satisfaction or waiver of the conditions set forth in Article VIII and the other terms hereof, to consummate the
Transactions.
Section 7.15.
Treatment of Company Indebtedness.
(a)
Credit Agreement. The Company shall, and shall cause the Company Subsidiaries to,
deliver all notices and take all other actions reasonably requested by Parent that are required to facilitate in accordance with the terms thereof the termination of all commitments outstanding under the Company Credit Agreement, the repayment
in full of all obligations, if any, outstanding thereunder, the cash collateralization, backstopping or replacement of all letters of credit, if any, outstanding thereunder (or such other treatment thereof as may be reasonably directed by
Parent), the release of all Liens, if any, securing such obligations, and the release of guarantees in connection therewith on the Closing Date as of the Closing Effective Time (such termination, repayment, treatment and releases, the “
Credit
Facility Termination”). In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent at least two business days prior to the
Closing Date (with drafts being delivered in advance as reasonably requested by Parent), an executed payoff letter with respect to the Company Credit Agreement (the “
Payoff Letter”) in form and substance customary for transactions of
this type, from the applicable agent on behalf of the Persons to whom such Indebtedness is owed, which Payoff Letter together with any related release documentation, shall, among other things, include the payoff amount and provide that all
Liens (and guarantees), if any, granted in connection therewith relating to the assets, rights and properties of the Company and the Company Subsidiaries securing such Indebtedness and any other obligations secured thereby, shall, upon the
payment of the amount set forth in the Payoff Letter on the Closing Date, be released and terminated. Notwithstanding anything herein to the contrary, in no event shall this
Section 7.15(a) require the Company or any of the Company
Subsidiaries to cause the Credit Facility Termination to be effective unless and until the Closing Effective Time has occurred and Parent has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has
directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) to pay in full the then-outstanding principal amount of and accrued and unpaid interest and fees under the Company Credit Agreement and to cash
collateralize, backstop or replace such letters of credit to the extent so directed.
(b)
Company Notes. Upon written request of Parent, the Company shall, and shall cause the Company Subsidiaries to, as applicable, (i) execute and
deliver, or cause to be executed and delivered, in each case, to the trustee under the Company Indenture at or prior to the Closing Effective Time, such documents or instruments required to comply with the requirements of Section 5.01 of the
Company Base Indenture (including the officer’s certificate and opinion of counsel contemplated by Sections 5.01, 12.04 and 12.05 of the Company Base Indenture) applicable to the Company’s outstanding 6.375% Senior Notes due 2031 (the “
Company
Notes”) in connection with the Transactions, and (ii) provide all assistance reasonably requested by Parent in connection with obtaining the execution of such instruments by the other parties required to execute such instruments and take
any other actions reasonably requested by Parent (which shall not require any payment by the Company or the Company Subsidiaries) that are customary or necessary in connection therewith, including the execution and delivery by the Company, the
Company Subsidiaries or their Representatives (as applicable) of customary officers’ certificates, supplemental indentures and legal opinions, respectively, to the trustee under the Company Indenture, to the extent such certificates,
supplemental indentures and opinions are required thereby. Notwithstanding the foregoing, neither the Company nor the Company Subsidiaries shall be required to execute and deliver any document or instrument (or cause any document or instrument
to be executed or delivered) (i) that would be inaccurate in light of the facts and circumstances at the time delivered, or (ii) not conditioned on or delivered substantially concurrently with the occurrence of the Closing Effective Time.
(c)
Company Notes Redemption. Upon written request of Parent, the Company shall, and shall cause the Company Subsidiaries to, and shall use its
reasonable best efforts to cause its and their Representatives to, as applicable, (i) issue and deliver to the trustee under the Company Indenture, at such time prior to the Closing Date as Parent may reasonably request, one or more notices of
redemption with respect to all or a portion of the outstanding aggregate principal amount of the Company Notes identified by Parent, pursuant to the redemption provisions of the Company Indenture and the Company Notes, which notice or notices
shall (A) specify a redemption date that is on or after the Closing Date and (B) be expressly conditioned upon the occurrence of the Closing and such other conditions precedent as Parent may reasonably request (and which notice or notices may
be rescinded, or the redemption date thereunder delayed, in accordance with the Company Indenture in the event any such condition is not satisfied) and (ii) provide all assistance reasonably requested by Parent to facilitate the redemption of
the Company Notes, the satisfaction and discharge of the Company Indenture with respect to the Company Notes or the provision by Parent or any of its Subsidiaries of a guarantee of the Company Notes effective as of or after the Closing
Effective Time, and take any other actions reasonably requested by Parent that are customary or necessary in connection therewith, including the execution and delivery by the Company, the Company Subsidiaries or their Representatives (as
applicable) of customary officer’s certificates, supplemental indentures and legal opinions to the trustee under the Company Indenture, to the extent required thereby. The Company (or the applicable Company Subsidiary) shall provide Parent a
reasonable opportunity to review a copy of any such notice, certificate, supplemental indenture or other document prior to delivering or entering into the same and shall reflect any changes thereto that Parent reasonably requests.
Notwithstanding anything herein to the contrary, in no event shall this
Section 7.15(c) require the Company or any of the Company Subsidiaries to (x) cause any such redemption or satisfaction and discharge to be effective, or pay or
deposit any amounts in respect thereof, unless and until the Closing Effective Time has occurred and Parent has provided, or caused to be provided, to the Company or the trustee under the Company Indenture funds (or Parent has directed the
Company or any of the Company Subsidiaries to use funds on their balance sheet) sufficient to pay the applicable redemption price of (including any premium or make-whole amount payable with respect to), and accrued and unpaid interest on, the
Company Notes to be redeemed and all related fees and expenses or (y) deliver any notice of redemption prior to the Closing Effective Time that is not expressly conditioned upon the occurrence of the Closing.
(d) Company Notes Debt Offers. Parent or NewCo will be permitted, at their option to commence and conduct offers to purchase, including “Change of Control Offers” (as defined in
the Company Indenture) or any other tender offer, or any exchange offer, in each case, in respect of the Company Notes, to conduct one or more consent solicitations in respect of the Company Notes, and to otherwise facilitate the rolling of all
or a portion of the outstanding aggregate principal amount of any Company Notes into Parent’s capital structure (each such offer, solicitation, or roll, a “Debt Offer” and collectively, the “Debt Offers”), in each case, in
Parent’s discretion and on such terms, conditions and timing determined by Parent, acting reasonably and in consultation with the Company; provided that such Debt Offers shall be conditioned on the
consummation of the Closing and, as applicable, such other conditions provided for in the Company Indenture. If Parent and/or NewCo elects to conduct a Debt Offer, the Company and the Company Subsidiaries shall provide customary assistance in
connection with any such Debt Offer, including by using its reasonable best efforts to:
(i) cause its officers, employees and Representatives to reasonably cooperate with Parent and NewCo in good faith to permit any such Debt Offer to be effected on such
terms, conditions and timing as reasonably requested by Parent (in consultation with the Company), including, if so reasonably requested by Parent, causing any such Debt Offer to be consummated substantially concurrently with (but no earlier
than) the Closing;
(ii) subject to the receipt of any requisite consents as part of any Debt Offer including a consent solicitation, execute one or more supplemental indentures to the
Company Indenture amending the terms and provisions of the Company Indenture as described in the applicable Debt Offer, execute one or more officer’s certificates as required under the Company Indenture or entering into guarantee documents, as
reasonably requested by Parent, which supplemental indentures and guarantee documents shall become effective upon the execution thereof and operative no earlier than the Closing Date or the acceptance for purchase of the Company Notes by Parent
(or other Person on behalf of Parent), and will cause the trustee under the Company Indenture to enter into such supplemental indenture; and
(iii) if reasonably requested by Parent, cause its legal counsel to provide all customary legal opinions to the extent such legal opinion is required to be delivered
prior to the Closing Date.
Parent shall provide, or arrange for its Financing Parties to provide, to the Company, the funds necessary to consummate any such Debt Offer (including the payment of all consent fees or other
consideration, fees and premiums) on the applicable settlement date.
(e) Receivables Purchase Agreement. The Company shall, and shall cause the Company Subsidiaries to, deliver all notices and take all other actions reasonably requested by Parent
that are required to facilitate in accordance with the terms thereof (i) the termination of the Receivables Purchase Agreement, (ii) the cessation of all sales and other transfers of accounts receivable thereunder, (iii) the repurchase or
settlement of any accounts receivable sold thereunder and remaining outstanding to the extent required by the terms thereof and (iv) the release of all Liens, if any, granted in connection therewith and the termination of all UCC financing
statements filed with respect thereto, in each case effective on the Closing Date as of the Closing Effective Time, in accordance with the terms of the Receivables Purchase Agreement (such termination, cessation, repurchase, settlement,
releases and terminations, the “Receivables Facility Termination”). In furtherance and not in limitation of the foregoing, the Company shall, and shall cause the Company Subsidiaries to, use reasonable best efforts to deliver to Parent
at least two business days prior to the Closing Date (with drafts being delivered in advance as reasonably requested by Parent), an executed payoff, termination or similar letter or agreement with respect to the Receivables Purchase Agreement
in form and substance customary for transactions of this type, from Wells Fargo Bank, National Association (or the applicable purchaser or agent thereunder), which letter or agreement, together with any related release documentation, shall,
among other things, specify all amounts, if any, payable by the Company and the Company Subsidiaries in connection with the Receivables Facility Termination and provide that all Liens, if any, granted in connection with the Receivables Purchase
Agreement relating to the assets, rights and properties of the Company and the Company Subsidiaries, and all UCC financing statements filed with respect thereto, shall, upon the payment of the amounts (if any) set forth therein on the Closing
Date, be released and terminated (including authorization for the Company, the Company Subsidiaries or their designees to file UCC-3 termination statements in respect of such financing statements). Notwithstanding anything herein to the
contrary, in no event shall this Section 7.15(e) require the Company or any of the Company Subsidiaries to cause the Receivables Facility Termination to be effective unless and until the Closing Effective Time has occurred and Parent
has provided or caused to be provided to the Company or the Company Subsidiaries funds (or Parent has directed the Company or any of the Company Subsidiaries to use funds on their balance sheet) sufficient to pay all amounts, if any, payable by
the Company and the Company Subsidiaries under the Receivables Purchase Agreement in connection with the Receivables Facility Termination.
Section 7.16.
Stock Exchange Listing. Parent shall use its reasonable best efforts to cause the shares of Parent Common Stock to be issued in connection
with the First Merger to be approved for listing on NASDAQ, subject to official notice of issuance, at or prior to the Closing Effective Time.
Section 7.17.
Certain Tax Matters.
(a) Each of Parent and the Company shall (and shall cause its respective Subsidiaries to) use its reasonable best efforts to cause the Integrated Transaction to qualify for the Intended
Tax Treatment, and shall not take or knowingly fail to take (and shall cause its Subsidiaries not to take or knowingly fail to take) any action that would, or would reasonably be expected to, prevent or impede the Integrated Transaction from qualifying for the Intended Tax Treatment. Each of Parent and the Company shall (and shall cause its respective Subsidiaries to) prepare and file all Tax Returns in a manner consistent with the
Intended Tax Treatment and each of Parent and the Company shall not (and shall cause its respective Subsidiaries not to) take any position that is inconsistent with the Intended Tax Treatment on any Tax Return, in any audit, examination or
other proceeding relating to Taxes or otherwise, in all cases, unless otherwise required by a change in applicable Tax Law after the date hereof or a “determination” within the meaning of Section 1313(a) of the Code.
(b) Each of the Parties hereby adopts this Agreement as a “plan of reorganization” within the meaning of Treasury Regulations Sections 1.368-2(g) and
1.368-3(a).
(c) Each of Parent and the Company shall (and shall cause its respective Subsidiaries to) use its reasonable best efforts and cooperate with one another to obtain (i) if, in connection
with the preparation and filing of the Proxy Statement/Prospectus, the SEC requests or requires that tax opinions be prepared and submitted in such connection, such tax opinions of Paul, Weiss, Rifkind, Wharton & Garrison LLP (“Paul
Weiss” ) and Gibson, Dunn & Crutcher LLP (“Gibson Dunn”) (the “SEC Tax Opinions” ) and (ii) the Closing Tax Opinion. Parent and the Company shall each deliver to the counsel delivering the SEC Tax Opinions or the
Closing Tax Opinion, as applicable, customary Tax representation letters reasonably satisfactory in form and substance to the counsel delivering the SEC Tax Opinions or the Closing Tax Opinion, as applicable, on which such counsel may rely,
dated and executed as of the date the Proxy Statement/Prospectus shall have been declared effective by the SEC and such other date(s) as determined reasonably necessary by such counsel in connection with the preparation and filing of the Proxy
Statement/Prospectus in the case of the SEC Tax Opinion, and as of the Closing Date, in the case of the Closing Tax Opinion. If required or requested by the SEC, Paul Weiss and Gibson Dunn shall each furnish an SEC Tax Opinion.
(d) For U.S. federal and applicable state and local income tax purposes, Parent will treat the assumption of the Company Pre-Funded Warrants as the issuance of the Standard Consideration to
the holders thereof in exchange for the Company Pre-Funded Warrants surrendered or deemed surrendered therefor.
ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE TRANSACTIONS
Section 8.1.
Conditions to Each Party’s Obligations to Effect the Transactions. The respective obligations of each Party
to effect the Transactions shall be subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by written agreement of the Parties, to the extent
permitted by applicable Law:
(a)
Company Stockholder Approval. The Company Stockholder Approval shall have been obtained.
(b) Parent Stock Issuance. The Parent Common Stock to be issued in connection with the First Merger shall have been approved for listing on the NASDAQ, subject to official notice
of issuance.
(c) Effectiveness of Form S-4. The Form S-4 shall have become effective under the Securities Act and shall not be the subject of any stop order or any Proceedings by the SEC
seeking a stop order.
(d)
No Legal Prohibition. No Governmental Entity of competent jurisdiction shall have
(i)
enacted, issued or promulgated any Law that is in effect or (ii) issued or granted any order or injunction (whether temporary, preliminary or permanent) that is in effect, in each case which has the effect of (x) restraining, enjoining or
otherwise prohibiting the consummation of the Transactions or (y) imposing (1) a Parent Restriction (other than a Permitted Parent Restriction) or (2) a Company Restriction (other than a Permitted Company Restriction);
provided, however, that, in the event of (x) any Company Restriction (other than a Permitted Company Restriction), such Company Restriction may be waived solely by Parent so long as such Company Restriction is conditioned
upon the consummation of the Transactions contemplated by this Agreement, and (y) any Parent Restriction (other than a Permitted Parent Restriction), such Parent Restriction may be waived solely by Parent.
(e)
Antitrust and FDI Approval. (i) Any waiting period (and extensions thereof) applicable to the Transactions under the HSR Act shall have expired or
been earlier terminated and (ii) any other required approvals, consents, or clearances under any Antitrust Laws or FDI Laws of the jurisdictions set forth in
Section 8.1(e) of the Company Disclosure Letter shall have been obtained, in
each case, without the imposition of (x) a Parent Restriction (other than a Permitted Parent Restriction) or (y) a Company Restriction (other than a Permitted Company Restriction);
provided, however, that,
in the event of (x) any Company Restriction (other than a Permitted Company Restriction), such Company Restriction may be waived solely by Parent so long as such Company Restriction is conditioned upon the consummation of the Transactions
contemplated by this Agreement, and (y) any Parent Restriction (other than a Permitted Parent Restriction), such Parent Restriction may be waived solely by Parent.
Section 8.2.
Conditions to the Obligations of Parent and Parent
Merger Subs. The obligations of Parent, Merger Sub 1 and NewCo to effect the Transactions are also subject to the satisfaction on or prior to the Closing Date of each of the following conditions, any and all of which may be waived in
whole or in part by Parent, Merger Sub 1 and NewCo:
(a)
Representations and Warranties. (A) The representations and warranties of the Company set forth in
Section 4.1(a) (other than the second
sentence thereof),
Section 4.1(c) (solely with respect to the first two sentences thereof),
Section 4.2(c),
Section 4.2(d) (other than the second sentence thereof),
Section 4.3,
Section 4.22,
Section
4.23 and
Section 4.25 shall be true and correct in all material respects as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date,
in which case as of such date); (B) the representations and warranties of the Company set forth in
Section 4.2(a) and
Section 4.2(b) shall be true and correct other than for
de minimis inaccuracies
as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which case as of such date); and (C) the other representations and warranties of the
Company set forth in this Agreement (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) shall be true and correct as of the Closing as though made on and as of the Closing (except
representations and warranties that by their terms speak specifically as of another date, in which case as of such date), except, with respect to this clause (C), where any failures of any such representations and warranties to be so true and
correct (without giving effect to any qualification as to materiality or Company Material Adverse Effect contained therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
(b)
Performance of Obligations. The Company shall have performed and complied in all
material respects with the obligations, covenants and agreements required to be performed or complied with by it under this Agreement at or prior to the Closing.
(c)
No Material Adverse Effect. No Company Material Adverse Effect shall have occurred since the date of this Agreement that is continuing.
(d)
Company Officer’s Certificate. Parent and the Parent Merger Subs shall have received from the Company a certificate, dated as of the Closing Date
and signed by the Company’s chief executive officer or chief financial officer, certifying to the effect that the conditions set forth in
Section 8.2(a),
Section 8.2(b) and
Section 8.2(c) have been satisfied.
Section 8.3.
Conditions to the Obligations of the Company. The obligations of the Company to effect the Transactions are also subject to the satisfaction on or prior to the
Closing Date of each of the following conditions, any and all of which may be waived in whole or in part by the Company:
(a)
Representations and Warranties. (A) The representations and warranties of Parent, Merger Sub 1 and NewCo set forth in
Section 5.1 (other
than the second sentence thereof),
Section 5.2,
Section 5.3 and
Section 5.14 shall be true and correct in all material respects as of the Closing as though made on and as of the Closing (except representations and
warranties that by their terms speak specifically as of another date, in which case as of such date); (B) the representations and warranties of Parent, Merger Sub 1 and NewCo set forth in
Section 5.8 shall be true and correct in all
respects as of the Closing as though made on and as of the Closing; and (C) the other representations and warranties of Parent, Merger Sub 1 and NewCo set forth in this Agreement (without giving effect to any qualification as to materiality or
Parent Material Adverse Effect contained therein) shall be true and correct as of the Closing as though made on and as of the Closing (except representations and warranties that by their terms speak specifically as of another date, in which
case as of such date), except, with respect to this clause (C), where any failures of any such representations and warranties to be so true and correct (without giving effect to any qualification as to materiality or Parent Material Adverse
Effect contained therein) have not had and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(b)
Performance of Obligations. Parent, Merger Sub 1 and NewCo shall have performed and complied in all material respects with the obligations,
covenants and agreements required to be performed or complied with by them under this Agreement at or prior to the Closing.
(c)
No Material Adverse Effect. No Parent Material Adverse Effect shall have occurred since the date of this Agreement that is continuing.
(d) Parent Officers’ Certificate. The Company shall have received from Parent a certificate, dated as of the Closing Date and signed by Parent’s chief executive officer or chief
financial officer, certifying to the effect that the conditions set forth in Section 8.3(a), Section 8.3(b) and Section 8.3(c) have been satisfied.
(e) Change in Law. No Change in Tax Law shall have occurred as a result of which neither Paul Weiss nor Gibson Dunn is able, as of the Closing Date, to render the Closing Tax
Opinion.
ARTICLE IX
Section 9.1.
Termination. This Agreement may be terminated and the Transactions may be abandoned, at any time before the Closing Effective Time, as follows (with any
termination by Parent also being an effective termination by Merger Sub 1 and NewCo):
(a) by mutual written consent of Parent and the Company;
(b) by the Company, in the event that
(i) the Company is not then in material breach of this Agreement and (ii)
(A) Parent, Merger Sub 1 and/or NewCo shall have breached, failed to perform or violated their respective covenants or agreements under this Agreement, or (B) any of the representations and warranties of Parent, Merger
Sub 1 or NewCo set forth in this Agreement shall have become inaccurate, and in either case of clause (A) or clause (B) where such breach, failure to perform, violation or inaccuracy (I) would result in the failure of any of the conditions set
forth in
Section 8.3(a) or
Section 8.3(b) to be satisfied, and (II) is not capable of being cured by the Outside Date or, if capable of being cured by the Outside Date, is not cured by Parent, Merger Sub 1 or NewCo, as
applicable, before the earlier of (x) the business day immediately prior to the Outside Date and (y) the thirtieth (30th) calendar day following receipt of written notice from the Company of such breach, failure to perform, violation or
inaccuracy;
(c) by Parent, in the event that (i) neither Parent, Merger Sub 1 nor NewCo is then in material
breach of this Agreement and (ii)
(A) the Company shall have breached, failed to perform or violated its covenants or agreements under this
Agreement or (B) any of the representations and warranties of the Company set forth in this Agreement shall have become inaccurate, in either case of clause (A) or clause (B) where such breach, failure to perform, violation or inaccuracy (I)
would result in the failure of any of the conditions set forth in
Section 8.2(a) or
Section 8.2(b) to be satisfied, and (II) is not capable of being cured by the Outside Date or, if capable of being cured by the Outside Date, is
not cured by the Company before the earlier of (x) the business day immediately prior to the Outside Date and (y) the thirtieth (30th) calendar day following receipt of written notice from Parent, Merger Sub 1 or NewCo of such breach, failure
to perform, violation or inaccuracy;
(d) by either Parent or the Company, in the event that the Closing Effective Time has not occurred on or before
the date that is
nine months after the date hereof (the “
Outside Date”);
provided that (i) if, on the Outside Date, all of the conditions set forth in
Article VIII, other than the conditions set forth in
Section 8.1(d) (to the extent any such injunction or order is in respect of, or any such Law is, the HSR Act or any other Antitrust Laws or FDI Laws) or
Section 8.1(e) or those conditions that by their nature are to be satisfied
on the Closing Date (if such conditions would be satisfied or validly waived were the Closing Date to occur at such time), shall have been satisfied or waived, then the Outside Date may be extended, by either Parent or the Company by providing
written notice to the other Party five business days prior to the Outside Date, for all purposes hereunder by a period of
three months; (ii) if, on the Outside Date, as extended, all of the conditions set forth in
Article VIII, other than the conditions set forth in
Section 8.1(d) (to the extent any such injunction or order is in respect of, or any such Law is, the HSR Act or any other Antitrust Laws or FDI Laws) or
Section 8.1(e)
or those conditions that by their nature are to be satisfied on the Closing Date (if such conditions would be satisfied or validly waived were the Closing Date to occur at such time), shall have been satisfied or waived, then the Outside Date
may be further extended, by either Parent or the Company by providing written notice to the other Party five business days prior to the Outside Date, as extended, for all purposes hereunder by a period of three months; and (iii) the right to
terminate this Agreement pursuant to this
Section 9.1(d) shall not be available to any Party whose action or failure to fulfill any obligation under this Agreement has been a proximate cause of
the failure
of the Closing Effective Time to occur by the Outside Date and such action or failure to act constitutes a material breach of this Agreement;
(e) by Parent, if, (i) prior to obtaining the Company Stockholder Approval, a Change of Recommendation has occurred or (ii) the
Company has willfully breached
Section 6.3 in any material respect;
(f) by either the Company or Parent if a Governmental Entity of competent jurisdiction shall have issued a final,
non-appealable order, injunction, decree or ruling in each case permanently restraining, enjoining or otherwise prohibiting the consummation of the Transactions;
(g) by the Company, prior to obtaining the Company Stockholder Approval, in order to effect a Change of Recommendation and
substantially concurrently enter into a definitive agreement providing for a Superior Proposal;
provided that (i) the Company has complied with
Section 6.3 and (ii) immediately prior to or
substantially concurrently with (and as a condition
to) the termination of this Agreement, the Company pays to Parent the Termination Fee payable pursuant to
Section 9.2(b)(iv);
or
(h) by either Parent or the Company, if the
Company Stockholders’ Meeting (including any adjournments or postponements
thereof) shall have concluded and the Company Stockholder Approval shall not have been obtained.
Section 9.2.
Effect of Termination.
(a) In the event of the valid termination of this Agreement as provided in
Section 9.1, written notice thereof shall
forthwith be given to the other Party or Parties specifying the provision hereof pursuant to which such termination is made, and this Agreement shall forthwith become null and void and there shall be no liability on the part of Parent, Merger
Sub 1 or NewCo or the Company, except that the Confidentiality Agreement, Section 7.2(e),
Section 7.13(e),
Section 7.13(f), this
Section 9.2 and
Section 10.3 through
Section 10.14 shall survive such
termination;
provided that nothing herein shall relieve any Party from liability for Fraud or willful breach of this Agreement prior to such termination. For purposes of this Agreement, “
willful
breach” shall mean a deliberate action taken or deliberate failure to act that the breaching party intentionally takes (or fails to take) and actually knows would, or would reasonably be expected to, be or cause a material breach of this
Agreement and shall include the failure to effect the Closing at the time the Closing is required to occur pursuant to
Section 2.2.
(i) If (A) Parent or the Company terminates
this Agreement pursuant to
Section 9.1(h), (B) after the date hereof and prior to the date of such termination, an Acquisition Proposal is publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least
three business days prior to the Company Stockholders’ Meeting, and (C) within 12 months of such termination, an Acquisition Proposal is consummated or a definitive agreement providing for an Acquisition Proposal is entered into, on or prior to
the date that is the earlier of (x) the date such Acquisition Proposal is consummated and (y) the date of entry of such definitive agreement, the Company shall pay to Parent the Termination Fee.
(ii) If (A) after the date hereof and prior to the
termination of this Agreement, an Acquisition Proposal is made to the Company Board of Directors or the Company’s management or becomes publicly disclosed (whether by the Company or a third party) and not publicly withdrawn at least three
business days prior to such termination, (B
) (I) Parent or the Company terminates this Agreement pursuant to
Section 9.1(d) or (II) Parent terminates this Agreement pursuant to (
x)
Section 9.1(c)(ii)(A) due to
a breach of, or a failure to perform or comply with, one or more covenants or agreements under this Agreement following the making of such Acquisition Proposal, or (y)
Section
9.1(e)(ii) and (
C) within 12 months of such termination, an Acquisition Proposal is consummated or a definitive agreement providing for an Acquisition Proposal is entered into, on or prior to the date that is
the earlier of (x) the date such Acquisition Proposal is consummated and (y) the date of entry of such definitive agreement, the Company shall pay to Parent the Termination Fee.
(iii) If Parent terminates this Agreement pursuant to
(A)
Section 9.1(e)(i) or (B)
Section 9.1(e)(ii) (in the case of this clause (B) if the Company has materially and willfully breached
Section 6.3), within two business days after such
termination, the Company shall pay to Parent the Termination Fee.
(iv) If the Company terminates this Agreement pursuant to
Section 9.1(g),
substantially concurrently with or prior to (and as a condition to) such termination, the Company shall pay or cause to be paid to Parent the Termination Fee.
(v) In the event any amount is payable by the Company pursuant to the preceding
clauses (i), (ii), (iii) or (iv), such amount shall be paid by wire transfer of immediately available funds to an account designated in writing by Parent. Parent shall promptly provide wire transfer instructions in writing to the Company upon
request (and in any event with sufficient time to allow the Company to pay or cause to be paid to Parent any Termination Fee payable hereunder within the time periods required by this
Section 9.2(b)). For the avoidance of doubt, in no
event shall the Company be obligated to pay the Termination Fee on more than one occasion.
(vi) Solely for purposes of
Section 9.2(b)(i) and
Section 9.2(b)(ii), the term “Acquisition Proposal” shall have the meaning assigned to such term in
Section 1.1, except that all references to “fifteen percent
(15%)” and “
eighty-five
percent (85%)” therein shall be deemed to be references to “fifty percent (50%).”
(c) Each Party acknowledges that the agreements contained in this
Section 9.2 are an integral part of the Transactions
and that, without these agreements, the Parties hereto would not enter into this Agreement. Each Party further acknowledges that the Termination Fee is not a penalty, but rather is liquidated damages in a reasonable amount that will compensate
Parent and the Parent Merger Subs in the circumstances in which the Termination Fee is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the
expectation of the consummation of the Transactions. In addition, if the Company fails to pay in a timely manner any amount due pursuant to
Section 9.2(b), then (i) the Company shall reimburse Parent for all costs and expenses
(including disbursements and fees of counsel) incurred in the collection of such overdue amounts, including in connection with any related claims, actions or proceedings commenced and (ii) the Company shall pay to Parent interest on the amounts
payable pursuant to
Section 9.2(b) from and including the date payment of such amounts was due to but excluding the date of actual payment at the prime rate set forth in
The Wall Street Journal
in effect on the date such payment was required to be made. Notwithstanding anything to the contrary in this Agreement, upon Parent’s receipt of the full Termination Fee (and any other amounts contemplated by this
Section 9.2(c))
pursuant to this
Section 9.2 in circumstances in which the Termination Fee is payable, none of the Company, any Company Subsidiary or any of their respective former, current or future officers, directors, partners, stockholders,
managers, members, affiliates or agents shall have any further liability or obligation relating to or arising out of this Agreement or the Transactions, except for Fraud or willful breach (as defined in
Section 9.2(a)).
ARTICLE X
Section 10.1.
Amendment and Modification; Waiver.
(a) Subject to applicable Law and except as otherwise provided in this Agreement, this Agreement may be amended, modified and supplemented by written agreement of each of the Parties.
(b) At any time and from time to time prior to the Closing Effective Time, either the Company, on the one hand, or Parent and the Parent Merger Subs, on the other hand, may, to the extent
legally allowed and except as otherwise set forth herein, (i) extend the time for the performance of any of the obligations or other acts of the other Parties, as applicable, (ii) waive any inaccuracies in the representations and warranties
made by the other Parties contained herein or in any document delivered pursuant hereto and (iii) waive compliance with any of the agreements or conditions for their respective benefit contained herein. Any agreement on the part of Parent, the
Parent Merger Subs, or the Company to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of Parent or the Company, as applicable. No failure or delay by the Company, Parent or the Parent
Merger Subs in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of any other right hereunder.
Section 10.2.
Non-Survival of Representations and Warranties. None of the representations and warranties in this Agreement
or in any schedule, instrument or other document delivered pursuant to this Agreement shall survive the Closing Effective Time. This
Section 10.2 shall not limit any covenant or agreement of the Parties which by its terms contemplates
performance after the Closing Effective Time.
Section 10.3.
Expenses. Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in
connection with this Agreement and the Transactions shall be paid by the Party incurring such costs and expenses.
Section 10.4.
Notices. All notices and other communications hereunder shall be in writing and shall be deemed given if
delivered personally (notice deemed given upon receipt), by electronic mail (notice deemed given upon transmission provided that no “bounceback” or notice of non-delivery is received) or sent by a nationally recognized overnight courier
service, such as Federal Express (notice deemed given upon receipt of proof of delivery), to the Parties at the following addresses (or at such other address for a Party as shall be specified by like notice):
if to Parent, Merger Sub 1 or NewCo, to:
C.H. Robinson Worldwide, Inc.
14701 Charlson Road
Eden Prairie, MN 55347
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Attention:
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Dorothy Capers
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with a copy to:
Gibson, Dunn & Crutcher LLP
200 Park Avenue
New York, New York 10166
if to the Company, to:
RXO, Inc.
11215 North Community House Road
Charlotte, NC 28277
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Attention: |
Jeffrey Firestone
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with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019
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Attention:
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Steven J. Williams
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Section 10.5.
Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words “include,” “includes” or “including” are used in this Agreement, they shall be deemed to be followed by the words
“without limitation.” As used in this Agreement, the term “affiliates” shall have the meaning set forth in Rule 12b-2 of the Exchange Act. The word “extent” and the phrase “to the extent” when used in this Agreement shall mean the degree to
which a subject or other thing extends, and such word or phrase shall not merely mean “if.” The term “or” is not exclusive. The phrases “the date of this Agreement,” “the date hereof,” “of even date herewith” and terms of similar import,
shall be deemed to refer to the date set forth in the preamble to this Agreement. The table of contents and headings set forth in this Agreement or any schedule delivered pursuant to this Agreement are for convenience of reference purposes
only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or such schedule or any term or provision hereof or thereof. All references herein to the Subsidiaries of a Person shall be deemed to
include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires. The Parties agree that they have been represented by counsel during the negotiation and execution of this Agreement and,
therefore, waive the application of any Law, regulation, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.
Section 10.6.
Counterparts. This Agreement may be executed manually or by facsimile or by other electronic transmission by the Parties, in any number of
counterparts, each of which shall be considered one and the same agreement and shall become effective when a counterpart hereof shall have been signed by each of the Parties and delivered to the other Parties. The exchange of a fully executed
Agreement (in counterparts or otherwise) by electronic transmission in .pdf format, including using generally recognized e-signature technology (e.g., DocuSign or Adobe Sign) or by facsimile shall be sufficient to bind the Parties to the terms
and conditions of this Agreement.
Section 10.7.
Entire Agreement; Third-Party Beneficiaries.
(a) This Agreement (including the Company Disclosure Letter and the Parent Disclosure Letter) and the Confidentiality Agreement constitute the entire agreement among the Parties with
respect to the subject matter hereof and thereof and supersede all other prior agreements (except that the Confidentiality Agreement shall be deemed amended hereby so that until the termination of this Agreement in accordance with Section
9.1, Parent and the Parent Merger Subs shall be permitted to take the actions contemplated by this Agreement) and understandings, both written and oral, among the Parties or any of them with respect to the subject matter hereof and
thereof.
(b) Nothing in this Agreement (including the Company Disclosure Letter and the Parent Disclosure Letter), express or implied, is intended to confer upon any Person other than the Parties
any rights or remedies hereunder or thereunder, except for (i) the provisions of Article III (which, from and after the Initial Effective Time, shall be for the benefit of the holders of Company Common Stock and Company Equity Awards
immediately prior to the Initial Effective Time), (ii) Section 7.4 (which, from and after the Initial Effective Time, shall be for the benefit of the Indemnified Parties), (iii) Section 7.13(f) (which shall be for the benefit of
the indemnified persons described therein), and (iv) Section 10.13 (which shall be for the benefit of the Financing Parties). Notwithstanding anything to the contrary in the immediately preceding sentence or otherwise in this
Agreement, the Company shall have the right, on its own behalf and, to the fullest extent permitted by Section 261(a)(2) of the DGCL, as representative on behalf of the holders of Company Common Stock and Company Equity Awards (each of which
are third party beneficiaries of this Agreement to the extent required for this proviso to be enforceable), to pursue (x) specific performance as set forth in Section 10.12 or, if specific performance is not sought or granted as a remedy, (y)
damages to the fullest extent permitted by Section 261(a)(1) of the DGCL (which shall include, among other things, the loss of economic benefits to the Company and/or its stockholders, including as a result of foregone opportunities or damages
based on lost premium or other economic entitlement the holders of Company Common Stock and Company Equity Awards would be entitled to receive pursuant to the terms of this Agreement if the transactions contemplated hereby were consummated in
accordance with the terms of this Agreement, and may be based on the benefit of the bargain lost by such holders, in each case, solely to the extent such damages are awarded by a court of competent jurisdiction) in the event of a breach by
Parent, NewCo or Merger Sub 1 of this Agreement, it being agreed that (i) in no event shall any such holder be entitled to enforce any of their rights, or any of Parent’s, NewCo’s or Merger Sub 1’s obligations, under this Agreement in the event
of any such breach, but rather the Company shall have, to the fullest extent permitted by Law, the sole and exclusive authority to take action on behalf of such stockholders, as representative of such holders and (ii) the Company may retain,
without distribution to the holders of Company Common Stock or Company Equity Awards, any amounts so recovered on behalf of such holders.
Section 10.8.
Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by 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 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 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 the Transactions are fulfilled to the extent possible.
Section 10.9.
Governing Law; Jurisdiction.
(a) This Agreement, and all claims, causes of
action (whether in
contract,
tort or statute) or other matter that may directly or indirectly result from, arise out of, be in connection with or relating to this
Agreement or the other agreements delivered in connection
herewith, or the execution or performance of this
Agreement or such other agreements, or the Transactions (the “
Relevant Matters”) shall be governed by, and construed in accordance with, the
Laws of the State of Delaware, without giving effect to conflicts of laws principles that would result in the application of the Law of any other state.
(b) Each of the Parties hereto hereby irrevocably and unconditionally submits, for itself and its property, to the exclusive jurisdiction of the Court of
Chancery of the State of Delaware, or, if (and only if) such court finds it lacks jurisdiction, the Federal court of the United States of America sitting in Delaware, and any appellate court from any thereof, in any action or proceeding arising
out of or relating to any Relevant Matter or for recognition or enforcement of any judgment relating thereto, and each of the Parties hereby irrevocably and unconditionally (i) agrees not to commence any such action or proceeding, except in the
Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks jurisdiction, the Federal court of the United States of America sitting in Delaware, and any appellate court from any thereof; (ii) agrees that any claim
in respect of any such action or proceeding may be heard and determined in the Court of Chancery of the State of Delaware, or, if (and only if) such court finds it lacks jurisdiction, the Federal court of the United States of America sitting in
Delaware, and any appellate court from any thereof; (iii) waives, to the fullest extent it may legally and effectively do so, any objection that it may now or hereafter have to the laying of venue of any such action or proceeding in such
courts; and (iv) waives, to the fullest extent permitted by Law, the defense of an inconvenient forum to the maintenance of such action or proceeding in such courts. Each of the Parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law. Each Party to this Agreement irrevocably consents to service of process inside or outside the
territorial jurisdiction of the courts referred to in this
Section 10.9(b) in the manner provided for notices in
Section 10.4. Nothing in this Agreement will affect the right of any Party to this Agreement to serve process in
any other manner permitted by applicable Law.
Section 10.10.
Waiver of Jury Trial. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE RELEVANT MATTERS. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10.10.
Section 10.11.
Assignment. This Agreement shall not be assigned by any of the Parties (whether by operation of Law or otherwise) without the prior
written consent of the other Parties. Subject to the preceding sentence, but without relieving any Party of any obligation hereunder, this Agreement will be binding upon, inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns.
Section 10.12.
Enforcement; Remedies.
(a) Except as otherwise expressly provided herein, any and all remedies herein expressly conferred upon a Party will be deemed cumulative with and not exclusive of any other remedy
conferred hereby, or by Law or equity upon such Party, and the exercise by a Party of any one remedy will not preclude the exercise of any other remedy.
(b) The Parties agree that irreparable injury, for which monetary damages (even if available) would not be an adequate remedy, will occur in the event that any of the provisions of this
Agreement (including failing to take such actions as are required of it hereunder to consummate the Transactions) is not performed in accordance with its specific terms or is otherwise breached. It is agreed that prior to the valid termination
of this Agreement pursuant to Article IX, each Party shall be entitled to an injunction or injunctions to prevent or remedy any breaches or threatened breaches of this Agreement by any other Party, to a decree or order of specific
performance specifically enforcing the terms and provisions of this Agreement and to any further equitable relief.
(c) The Parties’ rights in this Section 10.12 are an integral part of the Transactions and each Party hereby waives any objections to any remedy referred to in this Section
10.12 (including any objection on the basis that there is an adequate remedy at Law or that an award of such remedy is not an appropriate remedy for any reason at Law or equity). For the avoidance of doubt, each Party agrees that there
is not an adequate remedy at Law for a breach of this Agreement by any Party. In the event any Party seeks any remedy referred to in this Section 10.12, such Party shall not be required to obtain, furnish, post or provide any bond or
other security in connection with or as a condition to obtaining any such remedy.
Section 10.13.
Certain Financing Provisions. Notwithstanding anything in this Agreement to the contrary, the Company on behalf
of itself, the Company Subsidiaries and each of its controlled affiliates hereby: (a) agrees that any Proceedings, whether in law or in equity, whether in contract or in tort or otherwise, involving the Financing Parties, arising out of or
relating to this Agreement, the Financing or any of the agreements (including any applicable commitment letter) entered into in connection with the Financing or any of the transactions contemplated hereby or thereby or the performance of any
services thereunder shall be subject to the exclusive jurisdiction of any Federal or state court in the Borough of Manhattan, New York, New York, so long as such forum is and remains available, and any appellate court thereof and each Party
hereto irrevocably submits itself and its property with respect to any such Proceedings to the exclusive jurisdiction of such court; (b) agrees that any such Proceeding shall be governed by the laws of the State of New York (without giving
effect to any conflicts of law principles that would result in the application of the laws of another state), except as otherwise provided in any applicable commitment letter or other applicable definitive document relating to the Financing;
(c) agrees not to bring or support or permit any of its controlled affiliates to bring or support any Proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Financing Party
in any way arising out of or relating to this Agreement, the Financing, any commitment letter relating thereto or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any
Federal or state court in the Borough of Manhattan, New York, New York; (d) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Proceedings in any such court;
(e) knowingly, intentionally and voluntarily waives to the fullest extent permitted by applicable Law trial by jury in any Proceedings brought against the Financing Parties in any way arising out of or relating to this Agreement, the Financing,
any commitment letter relating thereto or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; (f) agrees that neither the Company nor any of the Company Subsidiaries nor any of their respective
affiliates or Representatives (in each case, other than Parent, Merger Sub 1, NewCo and their respective Subsidiaries) shall have any rights or claims against any Financing Party in connection with this Agreement, the Financing, any commitment
letter relating thereto or any of the transactions contemplated hereby or thereby; (g) agrees that none of the Financing Parties will have any liability to the Company or any of the Company Subsidiaries or any of their respective affiliates or
Representatives (in each case, other than Parent, Merger Sub 1, NewCo and their respective Subsidiaries) relating to or arising out of this Agreement, the Financing, any commitment letter relating thereto or any of the transactions contemplated
hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise; and (h) agrees that (and each other Party hereto agrees that) the Financing Parties are express third
party beneficiaries of, and may enforce, any of the provisions of this
Section 10.13, and such provisions and the definition of “Financing Parties” shall not be amended in any way adverse to the Financing Parties without the prior
written consent of the Financing Entities.
Section 10.14.
No Other Representations.
(a) In connection with the due diligence investigation of Parent by the Company, the Company received and may continue to receive from Parent certain estimates, projections, forecasts and
other forward-looking information, as well as certain business plan and cost-related plan information, regarding Parent, Parent’s Subsidiaries and their respective business and operations. The Company hereby acknowledges that there are
uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking information, with which the Company is familiar, and that, without limiting in any respect any of the representations and warranties
contained in Article V, the Company is taking full responsibility for making its own evaluation of the adequacy and accuracy of all such estimates, projections, forecasts and other forward-looking information, as well as such business
plans and cost-related plans, so furnished to it. Accordingly, except for the representations and warranties contained in Article V and in any certificate delivered by Parent or the Parent Merger Subs to the Company pursuant to this
Agreement, the Company acknowledges that none of Parent, the Parent Merger Subs or any Representative of Parent makes, and the Company acknowledges that it has not relied upon or otherwise been induced by, any other express or implied
representation or warranty with respect to Parent or any Subsidiary thereof (including the Parent Merger Subs) or with respect to any other information provided or made available to the Company in connection with the Transactions, including any
information, documents, projections, forecasts or other material made available to the Company or to the Company’s Representatives in certain “data rooms” or management presentations in expectation of the Transactions or the accuracy or
completeness of any of the foregoing, except, in each case for the representations and warranties contained in Article V and in any certificate delivered by Parent or the Parent Merger Subs to the Company pursuant to this Agreement.
(b) In connection with the due diligence investigation of the Company by Parent and the Parent Merger Subs, Parent and the Parent Merger Subs have received and may continue to receive
from the Company certain estimates, projections, forecasts and other forward-looking information, as well as certain business plan and cost-related plan information, regarding the Company, the Company Subsidiaries and their respective business
and operations. Parent and the Parent Merger Subs hereby acknowledge that there are uncertainties inherent in attempting to make such estimates, projections, forecasts and other forward-looking information, with which Parent and the Parent
Merger Subs are familiar, and that, without limiting in any respect any of the representations and warranties contained in Article IV and in any certificate delivered by the Company pursuant to this Agreement, Parent and the Parent
Merger Subs are taking full responsibility for making their own evaluation of the adequacy and accuracy of all such estimates, projections, forecasts and other forward-looking information, as well as such business plans and cost-related plans,
so furnished to them. Accordingly, except for the representations and warranties contained in Article IV, each of Parent, Merger Sub 1 and NewCo acknowledges that neither the Company nor any Representative of the Company makes, and
each of Parent, Merger Sub 1 and NewCo acknowledges that it has not relied upon or otherwise been induced by, any other express or implied representation or warranty with respect to the Company or any Company Subsidiary or with respect to any
other information provided or made available to Parent or the Parent Merger Subs in connection with the Transactions, including any information, documents, projections, forecasts or other material made available to Parent, the Parent Merger
Subs or to Parent’s Representatives in certain “data rooms” or management presentations in expectation of the Transactions or the accuracy or completeness of any of the foregoing, except, in each case for the representations and warranties
contained in Article IV and in any certificate delivered by the Company pursuant to this Agreement.
(Remainder of Page Intentionally Left Blank)
IN WITNESS WHEREOF, Parent, the Company, Merger Sub 1, and NewCo have caused this Agreement to be signed by their respective officers thereunto duly authorized as of the date first written
above.
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C.H. ROBINSON WORLDWIDE, INC.
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By |
/s/ David Bozeman
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Name: David Bozeman |
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Title: Chief Executive Officer |
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RXO, INC.
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By |
/s/ Drew M. Wilkerson
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Name: Drew M. Wilkerson |
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Title: Chief Executive Officer
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ROVER MERGER SUB INC.
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By
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/s/ David Bozeman
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Name: David Bozeman |
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Title: Chief Executive Officer |
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VIKING LOGISTICS LLC
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By
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/s/ David Bozeman
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Name: David Bozeman |
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Title: Chief Executive Officer
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[Signature Page to Agreement and Plan of Merger]