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UNITED INDUSTRIES CORP
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8-K
Jan 4, 10:00 AM ET
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UNITED INDUSTRIES CORP 8-K
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Contents
172
(a) Company Options.
(i) In the Money Options. Each Option with an exercise price per Company Common Share less than $5.997 that remains unexercised, vested and outstanding immediately prior to the Effective Time (the “In the Money Options”) shall be converted into the right to receive an amount in cash equal to the amount obtained by multiplying (x) the number of Exercisable Shares subject to such holder’s In the Money Options by (y) the result obtained by subtracting the exercise price per share for such In the Money Options from $5.997.
(ii) Out of the Money Options. Each Option with an exercise price per Company Common Share equal to or greater than $5.997 shall not be entitled to receive any Merger Consideration.
(iii) Termination of all Options. Each Option that is outstanding and unexercised as of the Effective Time, whether or not then vested and exercisable, shall be terminated as of the Effective Time.
(b) Company Common Shares. Each Company Common Share (excluding treasury stock (which for this purpose shall not include any shares held by a trustee under any of the Company’s or the Subsidiaries’ deferred compensation plans) and Dissenting Shares) issued and outstanding immediately prior to the Effective Time shall, at the election of the holder thereof, be converted into the right to receive:
(i) 0.20398 shares of Acquiror Stock (the “Stock Exchange Ratio”); or
(ii) cash in the amount of $5.997 (the “Cash Exchange Ratio”).
(c) Warrants. Each Warrant that remains unexercised and outstanding immediately prior to the Effective Time shall, at the election of the holder thereof, either:
(i) Exchanged Warrants. Be converted into the right to receive:
(A) the number of shares of Acquiror Stock equal to the result obtained by (1) multiplying (Y) the number of Company Common Shares for which such Warrants are exercisable by (Z) the result obtained by subtracting the exercise price per share for such
Warrant from $5.997 and then (2) dividing the result obtained in (1) by $29.40; and/or
(B) cash in the amount obtained by multiplying (x) the number of Company Common Shares for which such Warrant is exercisable by (y) the result obtained by subtracting the exercise price per share for such Warrant from $5.997; or
(ii) Retained Warrants. Continue to remain outstanding in accordance with its terms and after the Effective Time be exercisable for the following consideration contained in the Exchange Fund, rather than Company Common Shares, in a consideration mix determined pursuant to Section 2.6:
(A) the number of shares of Acquiror Stock obtained by multiplying the number of Company Common Shares for which such Warrant is exercisable by the Stock Exchange Ratio;
(B) cash in an amount obtained by multiplying the number of Company Common Shares for which such Warrant is exercisable by $5.997; or
(C) a combination of such Acquiror Stock and cash determined in accordance with clauses (A) and (B).
(a) “Company Common Shares” means the Company’s $0.01 par value Class A Common Stock and $0.01 par value, Class B Common Stock.
(b) “Exercisable Shares” means, with respect to each In the Money Option that remains outstanding immediately prior to the Effective Time, the number of Company Common Shares for which such In the Money Option is exercisable immediately prior to the Effective Time.
(c) “In the Money Options Aggregate Option Spread” means $12,916,532.24 less the aggregate amount obtained by multiplying the number of Exercisable Shares with respect to each In the Money Options as of the date of this Agreement exercised prior to the Effective Time by the result obtained by subtracting the exercise price for each such In the Money Options from $5.997.
(d) “Options” means the currently outstanding options to purchase 7,925,000 Company Common Shares (each, an “Option”).
(e) “Total Cash Consideration” means $70,000,000.00.
(f) “Total Cash to be Allocated” means the sum of the Total Cash Consideration plus the aggregate proceeds delivered by the Company to the Exchange Agent pursuant to Section 5.23.
(g) “Total Stock Consideration” means 13,750,000 shares of Acquiror’s $0.01 par value Common Stock (“Acquiror Stock”).
(h) “Warrants” means the currently outstanding warrants to purchase 9,500,000 Company Common Shares (each, a “Warrant”).
(a) Dissenting Shares. Notwithstanding anything in this Agreement to the contrary, Company Common Shares which are outstanding immediately prior to the Effective Time and with respect to which dissenters’ rights shall have been properly demanded in accordance with Delaware Law (“Dissenting Shares”) shall not be converted into the right to receive, or be exchangeable for, Merger Consideration or cash in lieu of fractional shares but, instead, the holders thereof shall be entitled to payment of the appraised value of such Dissenting Shares in accordance with the provisions of Delaware Law; provided, however, that (i) if any holder of Dissenting Shares shall subsequently deliver a written withdrawal of his demand for appraisal of such shares, or (ii) if any holder fails to establish his entitlement to dissenters’ rights, such holder or holders shall forfeit the right to appraisal of such shares of Company Common Stock and each of such shares shall thereupon be deemed to be Cash Election Shares and converted into the right to receive the cash consideration, without any interest thereon, in accordance with Sections 2.1(b)(ii) and 2.6.
(b) Treasury Shares. Each Company Common Share held as treasury stock immediately prior to the Effective Time shall be canceled and retired at the Effective Time and no consideration shall be issued in exchange therefor. Notwithstanding the foregoing, any Company Common Shares held by any trustee under any of the Company’s or any of the Subsidiaries’ deferred compensation plans shall be treated as outstanding for purposes of this Agreement.
(c) Outstanding Newco Stock. Each share of the capital stock of Newco issued and outstanding immediately prior to the Effective Time shall, by virtue of the Merger, be converted into one share of the capital stock of the Surviving Corporation.
(a) Fractional Cents and Rounding. Following the making of all allocations of cash and Acquiror Stock in accordance with Section 2.6, if the amount of cash to be paid to any holder of Company Common Shares, Options or Warrants would entitle such holder to receive a fraction of a cent in cash, any such dollar amounts shall be rounded to two decimal points, with any dollar amount equal to 0.0050 or higher being rounded up to the next highest whole cent. The foregoing determination will be determined on the basis of such holder’s aggregate holdings of Company Common Shares, In the Money Options and Warrants, and the consideration payable hereunder in respect thereto.
(b) Fractional Shares and Rounding. Notwithstanding any other provision hereof, no fractional shares of Acquiror Stock and no certificates or scrip therefor, or other evidence of ownership thereof, will be issued in the Merger and no Acquiror dividend or other distribution or stock split or combination will relate to any fractional share of Acquiror Stock, and such fractional share of Acquiror Stock will not entitle the owner thereof to vote or to any rights of a security holder of Acquiror; instead, if, after the allocation of the Merger Consideration in accordance with Section 2.6, any holder of Company Common Shares or Warrants would otherwise be entitled to a fractional share of Acquiror Stock, Acquiror shall pay to such holder of Company Common Shares or Warrants (after taking into account all Old Certificates delivered by such holder) an amount in cash (without interest) determined by multiplying such fractional share of Acquiror Stock to which the holder would be entitled by $29.40. The determination of whether any holder of Company Common Shares or Warrants would be entitled to a fractional share of Acquiror Stock will be determined on the basis of such holder’s aggregate holdings of Company Common Shares and Warrants, and the consideration payable hereunder in respect thereto. Following the making of all allocations of cash and Acquiror Stock in accordance with Section 2.6, if the amount of Acquiror Stock to be paid to any holder of Company Common Shares, Options or Warrants would entitle such holder to receive a fractional share of Acquiror Stock, any such fractional share amount shall be rounded to six decimal points, with any amount equal to 0.0000005 or higher being rounded up to the next highest one-hundred thousandth (.000001) of a share. Any such fractional share of Acquiror Stock with respect to which Acquiror has instead paid cash in lieu of such fractional share in accordance with this Section 2.5 (b) shall be removed from the Exchange Fund and returned to Acquiror.
(a) Exchange Fund. Within ten (10) Business Days after the date of this Agreement, Acquiror shall appoint a financial institution or other appropriate entity selected by Acquiror to act as exchange agent for the Merger (in such capacity, the “Exchange Agent”). At or prior to the Effective Time, Acquiror shall deposit, or shall cause to be deposited, with such Exchange Agent for the benefit of the holders of certificates representing Company Common Shares (“Old Certificates”) and the holders of In the Money Options and Warrants that remain outstanding immediately prior to the Effective Time, for exchange and payment in accordance with this Article II, certificates representing the Total Stock Consideration (“New Certificates”) and the Total Cash Consideration (such cash and New Certificates, together with any dividends or distributions with respect thereto with a record date occurring on or after the Effective Time,
and any amounts delivered by the Company to the Exchange Agent pursuant to Section 5.23 being hereinafter collectively referred to as the “Exchange Fund”) to be paid pursuant to this Article II in exchange for outstanding Company Common Shares, to the holders of In the Money Options that remain unexercised, vested and outstanding immediately prior to the Effective Time and to the holders of Warrants that remain outstanding immediately prior to the Effective Time. The Exchange Agent shall have no liability for any actions taken, or failures to act, with respect to this Agreement in the absence of gross negligence or intentional misconduct on the part of the Exchange Agent. The Exchange Fund represents the total consideration to be paid to all holders of Company Common Shares, Options and Warrants pursuant to this Agreement and neither the Company, Acquiror nor the Exchange Agent shall be required to pay any additional amounts to such holders of Company Common Shares, Options or Warrants pursuant to this Agreement (other than any additional amounts required due to rounding pursuant to Section 2.5(a), cash paid in lieu of fractional shares pursuant to Section 2.5(b) and any amounts required to be paid to holders of Dissenting Shares in excess of the amounts allocated pursuant to Section 2.6).
(b) No Interest. No interest will be paid or accrued on any Merger Consideration, including any cash to be paid in lieu of fractional shares of Acquiror Stock or in respect of dividends or distributions, that any holder of Company Common Shares, any holder of an Option that remains outstanding immediately prior to the Effective Time or any holder of a Warrant that remains outstanding immediately prior to the Effective Time shall be entitled to receive pursuant to this Article II.
(c) Election and Exchange Procedures. As soon as practicable after the date of this Agreement, the Company shall, or Acquiror shall cause the Exchange Agent to, mail or make available to each holder of record of a certificate or certificates representing issued and outstanding Company Common Shares and each holder of Options or Warrants (i) the Information Statement, (ii) a notice and letter of transmittal (which shall specify that delivery shall be effected and risk of loss and title to the certificates theretofore representing Company Common Shares or Warrants shall pass only upon proper delivery of such certificates or Warrants to the Exchange Agent) advising such holder of the Merger and the procedure for surrendering to the Exchange Agent such certificates or Warrants, if applicable, in exchange for the consideration set forth in Sections 2.1(b) and (c) hereof; (iii) an election form in the form attached hereto as Exhibit B (“Election Form”) and (iv) a holder representation form in the form attached hereto as Exhibit C (“Holder Representation Form”) whereby each such holder will represent and agree, among other things, as to such holder’s ownership of the Company Common Shares, In the Money Options or Warrants free of Liens, will indicate, in the case of Company Common Shares or Warrants, whether such holder is an “accredited investor” within the meaning of Rule 501 of Regulation D under the Securities Act (“Regulation D”), and will acknowledge, in the case of Company Common Shares or Warrants, the restrictions imposed upon the transfer of any Acquiror Stock received by such holder pursuant to this Article II, as described in Sections 2.8(a) and 5.11. Each Election Form shall permit the holder (or in the case of nominee record holders, the beneficial owner through proper instructions and documentation) of Company Common Shares or Warrants (A) to elect the number of such holder’s Company Common Shares or Warrants (or portion thereof) with respect to which such Holder wishes to receive Acquiror Stock (the “Stock Election Shares”), (B) to elect the number of such holder’s Company Common Shares or Warrants (or portion thereof) with respect to which such Holder wishes to receive cash (the “Cash Election Shares”), or (C) to indicate that such holder makes
no such elections with respect to such holder’s Company Common Shares or Warrants (or portion thereof) (the “No-Election Shares”). Nominee record holders who hold Company Common Shares or Warrants on behalf of multiple beneficial owners shall indicate how many of the shares or Warrants (or portion thereof) held by them are Stock Election Shares, Cash Election Shares and No-Election Shares. Any Company Common Shares or Warrants with respect to which the holder thereof shall not, as of 5:00 p.m., Eastern Time, on the tenth (10th) Business Day following but not including the date of mailing of the Election Form or such other date as Acquiror and the Company shall mutually agree upon (the “Election Deadline”), have made such an election by submission to the Exchange Agent of an effective, properly completed Election Form shall be deemed to be No-Election Shares. Notwithstanding anything in this Agreement to the contrary: (X) if Acquiror does not reasonably believe, with respect to any holder of Company Common Shares or Warrants that has not submitted an effective, properly completed Election Form and Holder Representation Form, that such holder is an “accredited investor” within the meaning of Regulation D, all Company Common Shares, including Company Common Shares underlying Warrants (determined on a net exercise basis), actually or beneficially owned by such holder shall be deemed to be Cash Election Shares (“Non-Determinable Shares”); (Y) to the extent that, upon making the allocations made pursuant to Section 2.6(d), the number of holders of Company Common Shares or Warrants who (i) are to receive Acquiror Stock pursuant to such allocations and (ii) either indicate on Holder Representation Forms that such holders are not “accredited investors” within the meaning of Regulation D, or do not indicate whether they are “accredited investors” and who Acquiror does not reasonably believe are “accredited investors” within the meaning of Regulation D (collectively, the “Non-Accredited Investors”) would exceed thirty-five (35), then any Company Common Shares, including Company Common Shares underlying Warrants (determined on a net exercise basis), actually or beneficially owned by any such Non-Accredited Investors (collectively, the “Non-Accredited Shares”) shall be deemed Cash Election Shares and (Z) any Dissenting Shares, for purposes of making the allocations described in Section 2.6(d), shall be deemed Cash Election Shares. In the absence of an effective, properly completed Election Form and Holder Representation Form from any holder of Company Common Shares or Warrants, the Company will use its reasonable best efforts to obtain information reasonably sufficient to permit Acquiror to determine whether it reasonably believes that such holder is an “accredited investor” within the meaning of Regulation D. Any election to receive Acquiror Stock or cash shall have been properly made only if the Exchange Agent shall have actually received a properly completed Election Form by the Election Deadline. An Election Form will be properly completed only if accompanied by certificates representing all shares of Company Common Shares, if applicable, covered thereby and Warrants, if applicable, covered thereby, subject in each case to the provisions of Section 2.6(g), and a completed Holder Representation Form. Any Election Form may be revoked or changed by the person submitting such Election Form to the Exchange Agent by written notice to the Exchange Agent only if such notice is actually received by the Exchange Agent prior to the Election Deadline. The Exchange Agent shall have reasonable discretion, after consultation with the Company and Acquiror, to determine when any election, modification or revocation is received and whether any such election, modification or revocation has been properly made and to interpret the provisions of this Article II. If this Agreement is terminated and abandoned prior to the Closing Date, the Exchange Agent shall return promptly to each of the Company’s stockholders the certificates representing Company Common Shares and the Warrants it has received from such stockholder
and shall return promptly to the Company the funds received pursuant to Section 5.23. Any Holder of Company Common Shares or Warrants who returns a properly completed Election Form, Holder Representation Form, Old Certificates with respect to such Company Common Shares, if applicable, and Warrants, if applicable, prior to the Election Deadline as well as each holder of In the Money Options will be paid the Merger Consideration with respect to such Company Common Shares, In the Money Options or Warrants as soon as practicable at or immediately after the Effective Time.
(d) Allocation of Merger Consideration.
(i) If the number of Cash Election Shares times the Cash Exchange Ratio is less than the Total Cash to be Allocated minus the In the Money Option Aggregate Option Spread, then:
(ii) If the number of Cash Election Shares times the Cash Exchange Ratio is greater than the Total Cash to be Allocated minus the In the Money Option Aggregate Option Spread, then:
(iii) If the number of Cash Election Shares times the Cash Exchange Ratio is equal to the Total Cash to be Allocated minus the In the Money Option Aggregate Option Spread, then subparagraphs (d)(i) and (ii) above shall not apply and all No-Election Shares and all Stock Election Shares will be converted into the right to receive Acquiror Stock.
(iv) In the event that the Exchange Agent is required pursuant to Section 2.6(d)(i)(2) to allocate which No-Election Shares are to be treated as Cash Election Shares and which No-Election Shares are to be treated as Stock Election Shares, each holder of No-Election Shares shall be allocated a pro rata portion of the total No-Election Shares that need to be treated as Cash Election Shares based on the total number of Company Common Shares, including Company Common Shares underlying Warrants (determined on a net exercise basis), designated as No-Election Shares and the number of Cash Election Shares required to be allocated pursuant to Section 2.6(d)(i)(2). In the event that the Exchange Agent is required pursuant to Section 2.6(d)(i)(3) to convert some Stock Election Shares into Reallocated Cash Shares, each holder of Stock Election Shares shall be allocated a pro rata portion of the total Reallocated Cash Shares based on the total number of Company Common Shares, including Company Common Shares underlying Warrants (determined on a net exercise basis), held by such holder of Stock Election Shares and the total number of Company Common Shares, including Company Common Shares underlying Warrants (determined on a net exercise basis), held by all such holders of Stock Election Shares. In the event the Exchange Agent is required pursuant to Section 2.6(d)(ii)(2) to convert some Cash Election Shares into Reallocated Stock Shares, each holder of Cash Election Shares shall be allocated a pro rata portion of the total Reallocated Stock Shares based on the total number of Company Common Shares, including Company Common Shares underlying Warrants (determined on a net
exercise basis), held by such holder of Cash Election Shares and the total number of Company Common Shares, including Company Common Shares underlying Warrants (determined on a net exercise basis), held by all such holders of Cash Election Shares; provided, however, that in no event shall any Non-Determinable Shares, any Non-Accredited Shares, if Section 2.6(c)(Y) applies, or any Dissenting Shares be included in such calculations or converted into Reallocated Stock Shares.
(e) Unclaimed Merger Consideration. Promptly following the date that is six (6) months after the Effective Time, the Exchange Agent shall deliver to the Surviving Corporation all cash, certificates and other documents in its possession relating to the transactions described in this Agreement; and any holders of Company Common Shares, Options or Warrants who have not theretofore complied with this Article II may look thereafter only to the Surviving Corporation for the Merger Consideration to which they are entitled pursuant to this Article II, in each case, without any interest thereon. Any such portion of the Exchange Fund remaining unclaimed by holders of Company Common Shares, Options or Warrants immediately prior to the time that such amounts would otherwise escheat to or become property of any Governmental Entity shall, to the extent permitted by Law, become the property of the Surviving Corporation free and clear of any claims or interest of any Person previously entitled thereto. Notwithstanding the foregoing, neither the Exchange Agent nor any Party hereto shall be liable to any former holder of Company Common Shares, Options or Warrants for any Acquiror Stock, any dividends or distributions thereon or any cash to be paid as part of the Merger Consideration or in lieu of fractional shares of Acquiror Stock, in each case, which has been delivered to a public official pursuant to applicable abandoned property, escheat or similar Laws.
(f) No Dividends with Respect to Unsurrendered Old Certificates. No dividends or other distributions with respect to Acquiror Stock with a record date occurring on or after the Effective Date shall be paid to the holder of any unsurrendered Old Certificate representing Company Common Shares converted in the Merger into the right to receive such Acquiror Stock until the holder thereof shall be entitled to receive New Certificates in exchange therefor in accordance with the procedures set forth in this Section 2.6. After becoming so entitled in accordance with this Section 2.6, the record holder thereof shall be entitled to receive any such dividends or other distributions, without any interest thereon, which theretofore had become payable with respect to the shares of Acquiror Stock such holder had the right to receive upon surrender of the Old Certificates.
(g) Lost Certificates or Warrants. If any Old Certificate or Warrant has been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such Old Certificate or Warrant to be lost, stolen or destroyed and, if required by Acquiror, the posting by such Person of a bond in such reasonable amount as Acquiror may direct as indemnity against any claim that may be made against it with respect to such Old Certificate or Warrant, the Exchange Agent shall deliver in exchange for such lost, stolen or destroyed Old Certificate or Warrant (i) the number of shares of Acquiror Stock to which such Person is entitled pursuant to Sections 2.1(b)(i), 2.1(c)(i) or 2.1(d), and (ii) a check in an amount equal to the sum of the cash to be paid to such Person as part of the Merger Consideration, if any, and the cash to be paid in lieu of any fractional shares of Acquiror Stock to which such Person is entitled pursuant to Section 2.5, if any.
(h) Withholding. Acquiror and the Exchange Agent, after consultation with the Company, are entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Common Shares, Warrants or In the Money Options such amounts as Acquiror is required to deduct and withhold with respect to the making of such payment under the Code and the rules and regulations promulgated thereunder, or any applicable Law. To the extent that amounts are so withheld by Acquiror or the Exchange Agent, such withheld amounts may be treated for all purposes of this Agreement as having been paid to the holders of Company Common Shares, Warrants or In the Money Options in respect of which such deduction and withholding were made by Acquiror or the Exchange Agent.
(i) Affiliates. Notwithstanding the other provisions of this Article II, Old Certificates surrendered for exchange by any Person who may be deemed to be an “affiliate” of the Company for purposes of Rule 145(c) under the Securities Act, including all of the directors and executive officers of the Company (each, a “Rule 145 Affiliate”), shall not be exchanged until Acquiror has received a written agreement from that Rule 145 Affiliate in the form attached as Exhibit D (a “Rule 145 Affiliate Agreement”).
(a) The shares of Acquiror Stock to be delivered in connection with this Agreement will be issued in a transaction exempt from registration under the Securities Act of 1933, as amended (the “Securities Act”) by reason of Section 4(2) thereof, Regulation D, or other private offering exemptions, and similar exemptions under applicable state securities laws (the “State Acts”), and Acquiror is relying on the representations of the stockholders of the Company with respect to such exemptions. Each stockholder will acknowledge in its Holder Representation Form that it understands and agrees, that stop transfer instructions with respect to the shares of Acquiror Stock received by such stockholder pursuant to this Agreement will be given to Acquiror’s transfer agent and that there will be placed on the certificates for such shares legends stating in substance as follows:
(b) The foregoing legends will also be placed on any certificate representing securities issued subsequent to the original issuance of the Acquiror Stock pursuant to this Agreement as a result of any transfer of such shares or any stock dividend, stock split or other recapitalization as long as the Acquiror Stock issued to the holders of Company Common Shares pursuant to this Agreement has not been transferred in such manner to justify the removal of the legends therefrom.
(c) (i) Upon request from any holder of Acquiror Stock issued pursuant to this Agreement received more than twelve (12) months but less than eighteen (18) months after the Closing Date, Acquiror will cause the transfer agent for its stock to issue new certificates to such requesting holder reflecting the legend set forth in (a)(ii) above only on fifty percent (50%) of such shares of Acquiror Stock, (ii) upon request from any holder of Acquiror Stock issued pursuant to this Agreement received more than eighteen (18) months after the Closing Date, Acquiror will cause the transfer agent for its stock to issue new certificates to such requesting holder reflecting the removal of the legend set forth in (a)(ii) above on all such shares of Acquiror Stock and (iii) the legend set forth in (a)(i) above shall be removed by Acquiror from any certificate evidencing Acquiror Stock upon delivery to Acquiror of an opinion by counsel, reasonably satisfactory to Acquiror, that a registration statement under the Securities Act is at that time in effect with respect to the legended security or that such security can be freely transferred in a public sale without such a registration statement being in effect and that such transfer will not jeopardize the exemption or exemptions from registration pursuant to which the Acquiror Stock was issued hereunder.
(a) The Company. The authorized capital stock of the Company is 51,457,500 shares of $0.01 par value Class A common stock and 51,457,500 shares of $0.01 par value Class B common stock (collectively, the “Shares”) and 40,000 shares of $0.01 par value Class A Preferred Stock. There are 35,954,496 shares of Class A common stock, 35,954,496 shares of Class B common stock and zero shares of Class A Preferred Stock issued and outstanding and 3,081,569 shares of Class A common stock, 3,081,569 shares of Class B common stock and zero shares of Class A Preferred Stock held as treasury stock. All of the issued and outstanding Shares are duly authorized, validly issued, fully paid and nonassessable, and were not issued in violation of any preemptive rights. The Shares represent all of the issued and outstanding capital stock of the Company. Except as set forth in Section 3.2(a) of the Disclosure Letter, there are no subscriptions, options, convertible securities, calls, rights, warrants or other agreements, claims or commitments of any nature whatsoever obligating the Company to issue, transfer, register with any securities commission or other authority, deliver or sell or cause to be issued, transferred, so registered, delivered or sold, additional shares of the Company or other securities of the Company or obligating the Company to grant, extend or enter into any such agreement or commitment. Except as set forth in Section 3.2(a) of the Disclosure Letter, there are no stockholders’ agreements, voting trusts, proxies or other similar agreements with respect to the Shares to which the Company is a party. Each stockholder of the Company has signed the United Industries Corporation Stockholders Agreement dated January 20, 1999, as amended (the “United Stockholders Agreement”), which is included in Section 3.2(a) of the Disclosure Letter. The United Stockholders Agreement, including the waiver of appraisal rights contained therein, is a valid and binding obligation of the parties thereto enforceable against each in accordance with its terms. The stockholders of the Company as of the date of this Agreement and the numbers and classes of shares held by each are set forth in Section 3.2(a) of the Disclosure Letter.
(b) Subsidiaries. All of the issued and outstanding shares of each Subsidiary are duly authorized, validly issued, fully paid and nonassessable, and were not issued in violation of any preemptive rights. There are no subscriptions, options, convertible securities, calls, rights, warrants or other agreements, claims or commitments of any nature whatsoever obligating any Subsidiary to issue, transfer, register with any securities commission or other authority, deliver or sell or cause to be issued, transferred, so registered, delivered or sold, additional shares of any Subsidiary or other securities of any Subsidiary or obligating any Subsidiary to grant, extend or enter into any such agreement or commitment. Except as disclosed in Section 3.2(b) of the Disclosure Letter, the Company owns all right, title and interest in and to all of the outstanding shares of each of the Subsidiaries, free and clear of all liens, mortgages, security interests, pledges, charges, other rights of third parties or other encumbrances (collectively, “Liens”). There are no stockholders’ agreements to which the Company or any of the Subsidiaries is a party or, to the Knowledge of the Company, any other stockholders’ agreements, with respect to the shares of any of the Subsidiaries. Except as disclosed in Section 3.2(b) of the Disclosure Letter, the Company has the right to elect all of the directors of each Subsidiary and the power to control the business and affairs of each Subsidiary.
(c) “Knowledge” means, with (i) respect to the Company, the actual knowledge of Robert L. Caulk, Gregory Flanagan, John A. Heil, John Hill, Daniel J. Johnston, Thomas Kasvin, Louis Laderman, William H. Metzger, Robert Rubin, Steven D. Schultz, Rick K. Spurlock and Stephen L. Tooker, and (ii) with respect to Acquiror and Newco, the actual knowledge of any executive officer of Acquiror.
(a) Undisclosed Liabilities. For purposes of this Agreement, the term “Liabilities” shall include any of the Company’s or any of the Subsidiaries’ debts, liabilities or obligations of any kind whatsoever, whether accrued, absolute, contingent, changing, known, unknown, determinable, indeterminable, liquidated, unliquidated or otherwise and whether due or to become due in the future. Except as set forth in the Company Financial Statements or disclosed in Section 3.9(a) of the Disclosure Letter, each of the Company and the Subsidiaries (a) did not have, as of September 30, 2004, any Liabilities required by GAAP to be disclosed in the Company’s consolidated balance sheet, and (b) has not incurred since September 30, 2004, any Liabilities other than liabilities or obligations incurred in the ordinary and usual course of business after September 30, 2004, which would not be required by GAAP to be disclosed in the Company’s consolidated balance sheet. Section 3.9(a) of the Disclosure Letter lists, and the Company has delivered to Acquiror copies of the documentation creating or governing, all securitization transactions and “off-balance sheet arrangements” (as defined in Item 303(c) of Regulation S-K of the SEC) effected by the Company or the Subsidiaries.
(b) Indenture. Section 3.9(b) of the Disclosure Letter lists the name of each Guarantor, as that term is defined in Section 1.01 of the Indenture dated as of March 27, 2003, between the Company, the Guarantors and U.S. Bank National Association (the “Indenture”), each such Guarantor being hereafter referred to as a “Loan Guarantor.”
(a) When used in this Section 3.11:
(i) “Clean-Up” means all actions required under applicable Environmental Law to: (A) contain, clean-up, remove, treat or remediate Hazardous Materials so that they do not migrate or endanger human health or the environment; (B) perform post-remedial monitoring and care; or (C) respond to any request by any Governmental Entity for information or documents in any way relating to containment, clean-up, removal, treatment or remediation or potential containment, clean-up, removal, treatment or remediation of Hazardous Material.
(ii) “Environmental Claim” means any claim, action, cause of action, investigation or written notice by any Person against the Company or the Subsidiaries alleging potential liability (including potential liability for investigatory costs, Clean-Up costs, Remedial Action, governmental response costs, natural resources damages, property damages, personal injuries or penalties) under any Environmental Law arising out of, based on or resulting from (A) the presence, or Release, of any Hazardous Material on the real property owned or leased by the Company or the Subsidiaries, or (B) circumstances forming the basis of any violation, or alleged violation, by the Company or the Subsidiaries under any Environmental Law or Environmental Permit.
(iii) “Environmental Law” means all applicable Laws relating to pollution or protection of the environment. Without limiting the generality of the foregoing, Environmental Law includes Laws relating to Releases or threatened Releases of Hazardous Material or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, Release, disposal, transport or handling of Hazardous Material and all Laws with regard to record keeping,
notification, disclosure and reporting requirements respecting Hazardous Material.
(iv) “Environmental Permit” means each permit, approval, registration identification number, license, certificate and other authorization which is or may be required under any applicable Environmental Law.
(v) “Hazardous Material” means any substance, chemical, compound, product, solid, gas, liquid, waste, byproduct, pollutant, contaminant or material which is classified or regulated as “hazardous” or “toxic” pursuant to Environmental Law, and includes friable asbestos-containing material, polychlorinated biphenyls and petroleum products.
(vi) “Release” means any release, spill, emission, discharge, leaking, pumping, injection, deposit, disposal, dispersal, leaching or migration into the environment (including ambient air, surface water, groundwater and surface or subsurface strata), or into or out of any property, including the movement of Hazardous Material through or in the air, soil, surface water, groundwater or property.
(vii) “Remedial Action” means any action or proceeding to (A) cause the removal of any Hazardous Material, (B) correct or prevent an environmental problem resulting from the prior treatment, storage, Release or disposal of Hazardous Material or to recover the cost of either by a Governmental Entity or other Person, or (C) cause the removal of any fill or implement any remediation, restoration or mitigation that may be required in connection with any dredging, filling or disturbance activities in any wetland or wetlands.
(b) Except as set forth in Section 3.11(b) of the Disclosure Letter: (i) the Company and the Subsidiaries are, and for the past five (5) years have been, in compliance in all material respects with all applicable Environmental Laws (which compliance includes the possession of all material Environmental Permits, and material compliance with the terms and conditions thereof) and (ii) neither the Company nor any of the Subsidiaries has received any written communication from any Governmental Entity or other Person alleging that the Company or the Subsidiaries is not in such material compliance.
(c) Except as set forth in Section 3.11(c) of the Disclosure Letter or in compliance in all material respects with Environmental Laws, the Company and the Subsidiaries have not (i) except for immaterial events, used, treated, stored, disposed of, or caused a Release of any Hazardous Material on, under, at, from or in any way affecting any real property owned or leased by the Company or the Subsidiaries, or (ii) shipped any Hazardous Material generated on any real property owned or leased by the Company or the Subsidiaries to any other place for use, treatment, storage, treatment or disposal.
(d) Except as set forth in Section 3.11(d) of the Disclosure Letter, there is no Environmental Claim pending or, to the Knowledge of the Company, threatened against the
Company or the Subsidiaries or any of their assets or business, which, if adversely determined, could be reasonably expected to have a Material Adverse Effect.
(e) Except as set forth in Section 3.11(e) of the Disclosure Letter, to the Knowledge of the Company, no other Person has placed, stored, deposited, discharged, buried, dumped or disposed or caused the Release of Hazardous Material or any other wastes produced by, or resulting from, any business, commercial or industrial activities, operations or processes, on or beneath any real property owned or leased by the Company or the Subsidiaries, the presence of which would give rise to a Material Environmental Claim or constitute a material violation of an Environmental Law.
(f) Neither the Company nor any of the Subsidiaries owns or operates, nor to Knowledge of the Company have any of them formerly owned or operated, any site that, nor has the Company or any of the Subsidiaries sent wastes to, a site that, pursuant to any Environmental Law, has been placed on the “National Priorities List”, the “CERCLIS” list, or any similar list of sites with suspected or confirmed environmental problems.
(g) The Company has made available to Acquiror copies of all material environmental or health and safety related assessments, studies, reports, analyses, regulatory inspection reports, correspondence with Governmental Entities and results of investigations involving the Company or any of the Subsidiaries that are in the possession, custody or control of the Company or any of the Subsidiaries.
(a) Each of the Company and the Subsidiaries owns, or is validly licensed or otherwise possesses legally enforceable and, except for limitations arising under licenses or similar contracts governing the Company’s and the Subsidiaries’ rights therein, unencumbered rights to use, all domestic and foreign patents, domestic and foreign trademarks, trade names, service marks, domain names and copyrights, any applications for and registrations of such patents, industrial designs, trademarks, trade names, service marks, domain names and
copyrights, and all database rights, net lists, processes, formulae, methods, schematics, technology, invention, trade secrets, know-how, computer software programs or applications and tangible or intangible proprietary information or material that are necessary or used to conduct its business, or necessary or used with respect to the production, marketing, use, sale of products or export for sale currently under development by the Company or any of the Subsidiaries (the “Company Intellectual Property Rights”). Except as set forth in Section 3.13(a) of the Disclosure Letter, the Company and each Subsidiary has the unrestricted right to produce, use, market, license, sell and export for sale all of the products and services produced, used, marketed and licensed by it now and for the foreseeable future and the consummation of the transactions contemplated by this Agreement will not alter or impair any such rights. Section 3.13(a) of the Disclosure Letter lists all of the material Company Intellectual Property Rights, denoting all material licenses or other agreements (other than licenses of generally available computer programs) pursuant to which the Company or any Subsidiary has any right to use or enjoy any intellectual property that is owned by others or pursuant to which the Company or any Subsidiary is under a duty of confidentiality with respect to any intellectual property owned by others. Each of the Company and the Subsidiaries has taken all action reasonably necessary to protect the Company Intellectual Property Rights, including use of reasonable secrecy measures to protect any trade secrets included in the Company Intellectual Property Rights, payment of maintenance or renewal fees where applicable for the Company Intellectual Property Rights, and filing of maintenance or renewal declarations or affidavits and accompanying materials where applicable for the Company Intellectual Property Rights. Section 3.13(a) of the Disclosure Letter sets forth a list of all material Company Intellectual Property Rights that will transfer to another party upon the happening of one or more specified events.
(b) Except as set forth in Section 3.13(b) of the Disclosure Letter, the execution and delivery of this Agreement and consummation of the transactions contemplated hereby will not result in the breach of, or create on behalf of any Person the right to terminate or modify, any license, sublicense or other contract or agreement relating to the Company Intellectual Property Rights, or any licenses, sublicenses or other contracts or agreements as to which the Company or any of the Subsidiaries is a party and pursuant to which the Company or any of the Subsidiaries is authorized to use any Person’s patents, trademarks, trade names, service marks, trade dress, domain names, copyrights or trade secrets (“Company Third Party Intellectual Property Rights”).
(c) All material patents, trademarks, service marks, domain names and copyrights which are held by the Company or any of the Subsidiaries are valid and subsisting. Except as set forth in Section 3.13(c) of the Disclosure Letter, neither the Company nor any of the Subsidiaries has, since January 1, 2002, been involved in any material Claim, or received in writing any claim or notice, which involves a claim of infringement, dilution or misappropriation of any material patents, trademarks, trade names, service marks, trade dress, domain names, copyrights or violation of any trade secret or other proprietary right of any Person (nor is there any Claim that arose prior to such date that remains outstanding and unresolved). To the Knowledge of the Company, the manufacturing, use, marketing, sale or export for sale of the products of the Company and the Subsidiaries do not infringe upon, dilute, misappropriate or otherwise come into conflict with any patent, trademark, trade name, service mark, trade dress, copyright, trade secret or other proprietary right of any Person. To the Knowledge of the Company, no other Person has previously interfered with, misappropriated, infringed upon or
diluted, or is currently interfering with, misappropriating, infringing upon or diluting, any Company Intellectual Property Rights or other proprietary, personality or privacy information of the Company or any Subsidiary. Except as set forth in Section 3.13(c) of the Disclosure Letter, there are no agreements, judgments or Governmental Orders which involve indemnification by the Company or any of the Subsidiaries with respect to infringement or misappropriation of intellectual property.
(d) It is the policy of the Company and the Subsidiaries that each employee, agent, consultant or contractor of the Company and the Subsidiaries that may be reasonably anticipated to contribute to or participate in the creation or development of any copyrightable, patentable or trade secret material execute agreements providing that the Company or one of the Subsidiaries is deemed to be the original owner/author of all property rights therein and including an assignment or an agreement to assign in favor of the Company or one of the Subsidiaries all right, title and interest in such material. Except as disclosed in Section 3.13(d) of the Disclosure Letter, to the Knowledge of the Company, no employee, agent, consultant or contractor of the Company or any of the Subsidiaries who has materially contributed to or participated in the creation or development of any copyrightable, patentable or trade secret material on behalf of the Company or any of the Subsidiaries has failed to execute such an agreement.
(a) Schedule of Plans. Section 3.14(a) of the Disclosure Letter lists each of the following that the Company, any of the Subsidiaries or any ERISA Affiliate maintains, is required to contribute to or otherwise participates in or as to which the Company, any of the Subsidiaries or any ERISA Affiliate has any liability or obligation, whether accrued, contingent or otherwise:
(i) any “employee pension benefit plan” (as defined in the Employee Retirement Income Security Act of 1974, as amended (“ERISA”)) (“Pension/Profit-Sharing Plan”), including any pension, profit-sharing, retirement, thrift or stock bonus plan;
(ii) any “multi-employer plan” (“Multi-Employer Plan”), “multiple employer plan” or “multiple employer welfare arrangement” (all as defined in ERISA and/or the Code);
(iii) any “employee welfare benefit plan” (as defined in ERISA);
(iv) any of the Canadian Employee Plans that the Company or a Subsidiary maintains or contributes to for the benefit of any of the Company’s or Subsidiary’s employees, former employees or their respective dependent or beneficiaries, but excluding the Canada Pension Plan, the Quebec Pension Plan, any health or drug plan established and administered by a Province and workers’ compensation insurance provided by federal or provincial law or a comparable program established and administered outside Canada. “Canadian Employee Plan” means all bonus, deferred compensation, incentive compensation, share purchase, share option, share appreciation,
phantom share, savings, profit sharing, severance or termination pay, health, dental or other medical, life, disability or other insurance (whether insured or self-insured), mortgage insurance, employee loan, employee assistance, supplementary unemployment benefit, pension, retirement, supplementary retirement, plan, program and every other benefit plan, program, agreement, arrangement or practice (whether written or unwritten); and
(v) any other compensation, stock option, restricted stock, fringe benefit or retirement plan, program, policy, understanding or arrangement of any kind whatsoever, whether formal or informal, not included in the foregoing and providing for benefits for, or the welfare of, any or all of the current or former employees, officers, directors, independent contractors, leased employees, consultants or agents of the Company, any of the Subsidiaries or any ERISA Affiliate or their beneficiaries or dependents (“Participants”), including any health, life insurance, retiree medical, bonus, employment, consulting, incentive, retention or severance arrangement, and all outstanding stock options, restricted shares, phantom stock awards, stock appreciation rights, performance share unit awards or cash or other similar incentive awards thereunder;
(b) Absence of Certain Types of Plans. Except as set forth in Section 3.14(b) of the Disclosure Letter, neither the Company, any of the Subsidiaries nor any ERISA Affiliate has at any time incurred any unsatisfied liability under any Employee Plan described in paragraph 3.14(a)(ii), including any liability, joint or otherwise, under ERISA Title IV for a complete or partial withdrawal from any Multi-Employer Plan. Neither the Company nor any of the Subsidiaries has any obligation in respect of any Canadian Employee Plans that are multi-employer pension plans or multi-employer benefit plans except contribution obligations as set forth in the materials provided to Acquiror.
(c) Employee Plans Documentation. The Company has delivered to Acquiror (and Section 3.14(c) of the Disclosure Letter lists each item delivered) copies of the following: (i) each written Employee Plan, as amended; (ii) all Internal Revenue Service (“IRS”) determination and opinion letters, or the Canadian equivalent, issued with respect to each Pension/Profit-Sharing Plan; (iii) the three (3) most recent actuarial valuations (if any) for each Pension/Profit-Sharing Plan; (iv) the three (3) most recent annual reports on the Form 5500 series, or the Canadian equivalent, including all schedules thereto; (v) each trust or custodial agreement, insurance contract or other document setting forth any other funding arrangement, if any, with respect to each Employee Plan; (vi) each administrative or other similar agreement with respect to the Employee Plans; (vii) the most recent ERISA summary plan description (including any summaries of material modifications), or the Canadian equivalent, or other summary of plan provisions distributed to participants or beneficiaries for each Employee Plan; (viii) each opinion or ruling from the IRS, the U.S. Department of Labor (“DOL”) or the Pension Benefit Guaranty Corporation (“PBGC”), or the Canadian equivalent, concerning any Employee
Plan; (ix) each Registration Statement, amendment thereto and prospectus relating thereto filed with the SEC, or Canadian equivalent, or furnished to participants in connection with any Employee Plan; (x) written descriptions of all non-written agreements relating to the Employee Plans; and (xi) a current sample of each notice or agreement required to be provided to any party pursuant to Code Section 4980B or ERISA Section 601 et seq. (“COBRA”) and Code Section 9801 or ERISA Section 701 et seq. (“HIPAA”).
(d) Legal Compliance. The Employee Plans have been maintained and administered, in all material respects, in accordance with their terms and with all provisions of the Code, ERISA (including applicable regulations thereunder) and other applicable Laws. Each of the Company, the Subsidiaries and all ERISA Affiliates have fully complied in a manner that will not result in any Material Adverse Affect with all of their obligations under each of the Employee Plans and with all provisions of the Code, ERISA and any and all other applicable Laws. Except as set forth in Section 3.14(d) of the Disclosure Letter, each Pension/Profit-Sharing Plan: (i) has received a favorable determination letter from the IRS to the effect that it is qualified under Code Sections 401(a) and 501, both as to the original plan and all restatements or material amendments and (ii) has never been subject to any assertion by any Governmental Entity that it is not so qualified. No Employee Plan is subject to an audit by the IRS, DOL or any other Governmental Entity nor is it the subject of any voluntary compliance program, amnesty program, closing agreement or other similar programs, and no completed audit, compliance filing, closing agreement or similar action or agreement has resulted in the imposition of any Tax or penalty that has not been satisfied.
(e) Accruals; Funding.
(i) Pension/Profit-Sharing Plans. None of the Employee Plans is a Pension/Profit-Sharing Plan subject to ERISA Title IV (including those for retired, terminated or other Participants). None of the Company, any of the Subsidiaries or any ERISA Affiliate has terminated any Pension/Profit-Sharing Plan subject to Title IV as to which there is any remaining liability, or incurred any outstanding liability under ERISA Section 4062 to the PBGC or to a trustee appointed under ERISA Section 4042.
(ii) Contributions. Except as set forth in Section 3.14(e) of the Disclosure Letter: (1) the Company, each of the Subsidiaries and each ERISA Affiliate have made full and timely payment of all amounts required to be contributed under the terms of each Employee Plan and applicable Law, or required to be paid as expenses under such Employee Plan, including administrative and related expenses, PBGC premiums and amounts required to be contributed under Code Section 412; (2) all contributions have been made in accordance with the actuarial recommendations; and (3) no excise taxes may be assessed as a result of any nondeductible or other contributions made or not made to an Employee Plan.
(f) Reporting and Disclosure. Summary plan descriptions and all other returns, reports, registration statements, prospectuses, documents, statements and communications that are required to have been filed, published or disseminated under the Code, ERISA or other Law and the rules and regulations promulgated by the Treasury Department, the
DOL or by the SEC or any other Governmental Entity with respect to the Employee Plans have been so filed, published or disseminated.
(g) Claims for Benefits. Other than claims for benefits arising in the ordinary course of the administration and operation of the Employee Plans, no claims, investigations or arbitrations are pending or threatened against any Employee Plan the Company, any of the Subsidiaries any ERISA Affiliate, any trust or arrangement created under or as part of any Employee Plan, any trustee, fiduciary, custodian, administrator or other Person holding or controlling assets of any Employee Plan, and no basis to anticipate any such claim or claims exists.
(h) Prohibited Transactions; Terminations; Other Reportable Events. Except as set forth in Section 3.14(h) of the Disclosure Letter, neither the Company, any of the Subsidiaries, any ERISA Affiliate, any Employee Plan, any trust or arrangement created under any of them, nor any trustee, fiduciary, custodian, administrator or any other person or entity holding or controlling assets of any of the Employee Plans has engaged in any “prohibited transaction” (as such term is defined in ERISA or the Code) that could subject any of the Company, any of the Subsidiaries, any ERISA Affiliate or any Employee Plan to any Tax, penalty or other cost or liability of any kind.
(i) Creation of Obligations By Reason of the Merger. Except as set forth in Section 3.14(i) of the Disclosure Letter, the execution and delivery of the Company Delivered Agreements and the consummation of the transactions contemplated by the Company Delivered Agreements will not constitute an event under any Employee Plan that will or may result in any payment (whether severance pay or otherwise), acceleration, forgiveness of indebtedness, vesting, distribution, increase in benefits or obligation to fund benefits with respect to any Participant, including any obligation to make a payment that would be nondeductible under Code section 280G or any other Code provision.
(j) Employee Recharacterization. Neither the Company, any Subsidiary nor any ERISA Affiliate has or could have any liability arising from the recharacterization of any Person engaged by the Company, any Subsidiary or any ERISA Affiliate as an independent contractor, lease employee, consultant or similar service provider as an Employee of the Company, any Subsidiary or any ERISA Affiliate, where such liability could reasonably be expected to have a Material Adverse Effect.
(a) Each of the Company and the Subsidiaries has duly and timely filed all income Tax and other material Tax returns, declarations, reports, information returns and statements (“Returns”) required to be filed by it in respect of any United States federal, state or local, or foreign Taxes and has duly and timely paid all income Taxes and other material Taxes due and payable by it, other than Taxes which are being contested in good faith (and disclosed by the Company to Acquiror in writing). As used herein, “Tax” or “Taxes” means and includes any and all taxes, fees, levies, assessments, duties, tariffs, imposts, and other charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed
with respect thereto) imposed by any Governmental Entity, including, without limitation: foreign, domestic, central, local, state or other jurisdictional taxes or other charges on or with respect to income, estimated income, franchises, business, occupation, windfall or other profits, gross receipts, property, sales, use, capital stock, payroll, employment, social security, workers’ compensation, unemployment compensation, or net worth; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value added, or gains taxes; license, registration and documentation fees; and customs duties, tariffs, and similar charges. The unaudited consolidated balance sheet of the Company and the Subsidiaries for the period ending September 30, 2004, establishes reserves for the payment of all income Taxes and other material Taxes not yet due and payable as of such date in conformity with GAAP applied on a consistent basis, except as otherwise stated in the Company Financial Statements. Each of the Company and the Subsidiaries have complied in all material respects with all applicable Laws relating to the payment and withholding of Taxes from employees and other Persons.
(b) None of the income Tax and other material Tax Returns of the Company or any of the Subsidiaries have been examined by the IRS or any other United States federal, state or local or any foreign Governmental Entity within the past six (6) years, other than reviews and assessments undertaken by the Canada Revenue Agency in the ordinary course for all Canadian Returns. There are no audits or other Governmental Entity proceedings presently pending nor, to the Knowledge of the Company, any other disputes pending with respect to, or claims asserted for, Taxes upon the Company or any of the Subsidiaries, nor has the Company or any of the Subsidiaries given any currently outstanding waivers or comparable consents regarding the application of any statute of limitations with respect to any Taxes or Returns. There are no Liens for Taxes upon the assets of the Company or any of the Subsidiaries, except Liens for Taxes not yet due.
(c) Neither the Company nor any of the Subsidiaries (i) has requested any extension of time within which to file any Return which has not since been filed or (ii) is required to include in income any adjustment by reason of a voluntary change in accounting method initiated by the Company or any of the Subsidiaries (nor to the Knowledge of the Company, has any Governmental Entity proposed any such adjustment or change of accounting method).
(d) There is no contract, agreement, plan or arrangement covering any person that, individually or collectively, could give rise to the payment of any amount that would not be deductible by Acquiror and its affiliated group (including the Surviving Corporation) by reason of Section 280G of the Code or give rise to any Tax under Section 4999 of the Code.
(e) None of the Company or the Subsidiaries has constituted either a “distributing corporation” or a “controlled corporation” (within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock qualifying for tax-free treatment under Section 355 of the Code (i) in the two (2) years prior to the date hereof or (ii) in a distribution which could otherwise constitute part of a “plan” or “series of related transactions” (within the meaning of Section 355(e) of the Code) in conjunction with the transactions contemplated by this Agreement.
(f) Neither the Company nor any of the Subsidiaries has been a member of an affiliated, consolidated, combined or unitary group (other than a group of which Holdings, the Company or a Subsidiary is the common parent), or has any liability for Taxes of any Person (other than Holdings, the Company and the Subsidiaries) under Treasury Regulation Section 1.1502-6 or any analogous or similar provision of Law.
(g) Neither the Company nor any of the Subsidiaries is a party to any tax sharing, allocation, indemnity or similar agreement or arrangement (whether or not written) pursuant to which it will have any obligation to make any payments after the Closing.
(h) No circumstances exist or have existed which have resulted in or may result in the application of any of sections 79 to 80.04 (relating generally to debt forgiveness) of the Income Tax Act (Canada), as amended (the “Canadian Tax Act”) (or similar laws of a province) to the Company or any of the Subsidiaries. No Subsidiary has received a requirement pursuant to section 224 of the Canadian Tax Act which remains unsatisfied in any respect. For taxation years commencing after 1998 and ending on or before the Closing Date each Subsidiary has made and obtained records or documents, where required, that meet the requirements of paragraphs 247(4)(a) to (c) of the Canadian Tax Act with respect to all transactions and arrangements with non-resident Persons not dealing at arm’s length with the relevant company within the meaning of the Canadian Tax Act. No Subsidiary has claimed any reserve for tax purposes, if as a result of such claim any amount could be included in income for a taxation year ending after the Closing Date and no Subsidiary has made a payment, nor is or may be obligated to make any payment, that may not be deductible by virtue of section 67 or 78 of the Canadian Tax Act (or similar laws of a province). There are no circumstances which have or could result in the application, either before, on or after Closing Date, of section 17 or paragraph 214(3)(a) of the Canadian Tax Act to any Subsidiary.
(a) Section 3.16(a) of the Disclosure Letter lists (i) all of the real property owned by the Company or any of the Subsidiaries (the “Owned Real Property”) and (ii) all of the leases (the “Leases”) for real property to which the Company or any of the Subsidiaries is a party. Each Lease is in full force and effect, except to the extent that its enforceability may be limited by bankruptcy, insolvency, reorganization, moratorium or other Laws and court decisions relating to or affecting the enforcement of creditors’ rights generally (including statutory or other Laws regarding fraudulent transfers), and is subject to general principles of equity.
(b) The Company or one of the Subsidiaries has good and marketable title to or valid leasehold interests, in all properties and assets that are material to the conduct of the business of the Company, including those reflected in the Company Financial Statements (or acquired after the date of the Company Financial Statements by the Company or the Subsidiaries), or not reflected on the Company Financial Statements but used by the Company or the Subsidiaries, except for assets and properties sold, consumed or otherwise disposed of in the ordinary course of business since September 30, 2004 (which, to the extent material, are disclosed in Section 3.16(b) of the Disclosure Letter), including the Owned Real Property (collectively, the “Properties”), free and clear of any title defects or Liens, except (i) Liens securing debt reflected as liabilities on the latest balance sheet included in the Company
Financial Statements, (ii) Liens for current Taxes and assessments not in default, (iii) mechanics’, carriers’, workers’, repair persons’, statutory or common law Liens either not delinquent or being contested in good faith and (iv) Liens, covenants, rights-of-way, building or use restrictions, easements, exceptions, variances, reservations and other matters or limitations of any kind, if any, which could not reasonably be expected to have a materially adverse effect on the Company’s or the Subsidiaries’ use of such Properties affected for the purposes currently used or materially diminish the value of such Properties.
(c) No Person other than the Company or the Subsidiaries is currently entitled to possession of any of the Properties, whether owned or leased by the Company or the Subsidiaries. The buildings, structures and improvements owned or leased by the Company or the Subsidiaries conform in all material respects to all applicable Laws, including zoning regulations, none of which would upon consummation of the transactions contemplated hereby materially adversely interfere with the use of such Properties, buildings, structures or improvements for the purposes for which they are now utilized. Except as set forth in Section 3.16(c) of the Disclosure Letter, (i) each of the Properties is adequate in all material respects for the operations for which it is being used by the Company or the Subsidiaries, (ii) each of the Properties is in reasonably good repair and operating condition, normal wear and tear excepted, and (iii) the Properties constitute all of the properties that the Company and the Subsidiaries use in connection with the operation of their business as currently conducted. The Company and the Subsidiaries do not have any commitment or plan to make any capital expenditure with respect to any of the Properties in excess of $100,000 that has not been set forth in Section 3.16(c) of the Disclosure Letter.
(a) Except as set forth in Section 3.20(a) of the Disclosure Letter: (i) the Company and the Subsidiaries have maintained accurate sales records, order backlog and other information with respect to all products and services; and (ii) each of the Company and the Subsidiaries’ products and services comply in all material respects with applicable Law and each warranty, guaranty or claim made by the Company or the Subsidiaries or implied by applicable Law. Section 3.20(a) of the Disclosure Letter lists each material warranty, guaranty or claim made by the Company and the Subsidiaries as to its products or services (other than those implied by applicable Law).
(b) Since January 1, 2000, no product manufactured, sold, leased, licensed or delivered by the Company or any Subsidiary has been subject to any product warranty beyond
the applicable standard product warranties which are set forth in Section 3.20(b) of the Disclosure Letter. Section 3.20(b) of the Disclosure Letter sets forth the aggregate expenses incurred by the Company and the Subsidiaries in fulfilling their product warranty obligations during each year since January 1, 2000. The Company and each of the Subsidiaries has no reason to believe that warranty expense as a percentage of sales will increase materially in the future.
(c) The Company and the Subsidiaries have complied in all material respects with all applicable Laws with respect to its products and services, including those of the United States Food and Drug Administration, the Consumer Product Safety Commission and the United States Environmental Protection Agency and the corresponding Canadian Governmental Entities. Section 3.20(c) of the Disclosure Letter sets forth all correspondence with any such agencies alleging any non-compliance with applicable Law with respect to the products and services of the Company and the Subsidiaries.
(d) To the Knowledge of the Company all of the Company’s and the Subsidiaries’ products have been merchantable, free from defects in material and workmanship, and suitable for the purpose for which they were sold. The Company’s and the Subsidiaries’ products have not been subject to any product recall (including any safety related recall) or service bulletin and, to the Knowledge of the Company there is no fact or facts existing which may reasonably be expected to result in any such recall or service bulletin. Except as disclosed in Section 3.20(d) of the Disclosure Letter, there is no legal action, Claim, arbitration, or other legal or administrative proceeding or investigation before any Governmental Entity pending or, to the Knowledge of the Company, threatened, involving any product liability, product recall or otherwise involving any product of the Company or the Subsidiaries.
(e) The Company and the Subsidiaries have insurance against loss or damage arising out of product liability, true and complete copies of which have been delivered to Acquiror. Such insurance covers all incidents of loss which have occurred prior to the date hereof or which may occur resulting from the Company’s or any of the Subsidiaries’ products sold prior to the Closing. All incidents of damage claims paid by the Company, any of the Subsidiaries, or any of their insurance carriers in excess of $50,000.00 in the two (2) year period preceding the date of this Agreement are described in Section 3.20(e) of the Disclosure Letter. The Company Financial Statements include an adequate reserve (or shall otherwise reflect an appropriate accrual), determined in accordance with GAAP, for all liability or potential liability resulting or arising from any product recall that has been initiated or breach of warranty claims that have been asserted, or that are reasonably likely to be initiated or asserted, in connection with products manufactured and sold by the Company or any of the Subsidiaries, including the matters set forth in Section 3.20(e) of the Disclosure Letter, in each case, as of the date of the Company Financial Statements.
(a) Except as set forth in Section 3.23(a) of the Disclosure Letter, the Company and each of the Subsidiaries, is and since January 1, 2000 has been, in compliance in all material respects with all applicable Laws respecting employment and employment practices, terms and conditions of employment, wages and hours, and is not engaged in any unfair labor or unlawful employment practice. There is no unlawful employment practice or discrimination charge pending involving the Company or any of the Subsidiaries before any Governmental Entity, nor is there any pending or, to the Knowledge of the Company, threatened unfair labor practice charge or complaint against the Company or any of the Subsidiaries before any Governmental Entity.
(b) Except as set forth in Section 3.23(b) of the Disclosure Letter, neither the Company nor any of the Subsidiaries, with the exception of any Subsidiaries with operations in Canada with respect to their Canadian employees (the “Canadian Subsidiaries”), is party to or is bound by any agreement, arrangement understanding with any employee or consultant that cannot be terminated on notice of (90) or fewer days or that entitles any employee or consultant to receive any salary continuation or severance payment or retain any specified position with the Company or any of the Subsidiaries.
(c) Except as set forth in Section 3.23(c) of the Disclosure Letter, none of the Canadian Subsidiaries is party to or is bound by any agreement, arrangement or understanding with any consultant that cannot be terminated on notice of (90) or fewer days or that entitles any consultant to receive any salary continuation or severance payment or retain any specified position with any of the Canadian Subsidiaries.
(d) There is no labor strike, dispute, slowdown or stoppage actually pending or, to the Knowledge of the Company, threatened against or involving or affecting the Company or any of the Subsidiaries. No grievance or arbitration proceeding is pending and no written claim therefor exists involving the Company or any of the Subsidiaries. Except as disclosed in Section 3.23(d) of the Disclosure Letter, there is no collective bargaining agreement that is binding on the Company or any of the Subsidiaries.
(e) Except for existing collective bargaining obligations of the Company disclosed in Section 3.23(d) of the Disclosure Letter, no trade union, council of trade unions, employee bargaining agency or affiliated bargaining agent: (i) holds bargaining rights with respect to the employees of the Company or any of the Subsidiaries by way of certification, interim certification, voluntary recognition, designation or successor rights; (ii) has applied to be certified as the bargaining agent of the employees of the Company or any of the Subsidiaries; or (iii) has applied to have the Company or any of the Subsidiaries declared a related employer pursuant to any applicable statute or regulation.
(a) Preparation and Distribution. The Company and Acquiror will prepare an information statement, (the “Information Statement”) in connection with the Merger in accordance with Regulation D promulgated under the Exchange Act and Delaware Law, and the Company shall provide the Information Statement to its stockholders and holders of Warrants as soon as practicable after the date of this Agreement in accordance with Section 2.6(c). The Company and Acquiror will furnish all information concerning the Company and Acquiror, respectively, as may be reasonably necessary or requested in connection with the foregoing. None of the information supplied or to be supplied by the Company or Acquiror for inclusion or incorporation by reference in the Information Statement will, at the time the Information Statement is first published, sent or given to holders of Company Common Shares, and at any time it is amended or supplemented, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading. If any of the Parties becomes aware prior to the Effective Time of any information furnished by it that would cause
any of the statements in the Information Statement to be false or misleading with respect to any material fact, or to omit to state any material fact necessary to make the statements therein not false or misleading, it will promptly inform the other Parties thereof and to take the necessary steps to correct the Information Statement.
(b) Non-Accredited Stockholders. The Company shall assist Acquiror in obtaining such information as Acquiror reasonably requires to allow Acquiror to determine the number and nature of the Company stockholders and holders of Warrants in their capacity as purchasers (as such term is used under Rule 506 of Regulation D). In connection with the distribution of the Information Statement to the Company stockholders, the Company shall use its reasonable best efforts to cause each Company stockholder to complete and return an accredited investor questionnaire in accordance with Section 2.6(c). The Company shall cause all Non-Accredited Investors to use a “purchaser representative” (as defined in Rule 501(h) of Regulation D) to assist the Non-Accredited Investors in evaluating the Information Statement and the investment decisions represented by this Agreement, the Merger and the transactions contemplated hereby.
(a) Operation of the Company in the Ordinary Course of Business. Other than as set forth in Section 5.2 of the Disclosure Letter, the Company shall, and shall cause each of the Subsidiaries to, operate its business in the ordinary and usual course in substantially the same manner as heretofore conducted. The Company shall, and shall cause the Subsidiaries to, (i) prepare and file all income Tax and other material Tax Returns and amendments thereto required to be filed by it during the period from the date of this Agreement until the Closing, and shall allow Acquiror, at its request, to review all such Tax Returns prior to the filing thereof, which review shall not interfere with the timely filing thereof; (ii) timely pay all Taxes due and payable with respect to such Tax Returns; and (iii) comply in all material respects with all applicable Laws relating to the withholding of Taxes.
(b) Forbearances by the Company. Without limiting the generality of Section 5.2(a), except as set forth in Section 5.2 of the Disclosure Letter, without the prior written consent of Acquiror, which consent shall not be unreasonably withheld or delayed, the Company shall not, nor shall it permit any of the Subsidiaries to:
(c) Investigation. After the date of this Agreement, the Company shall permit Acquiror to make or cause to be made such investigation of the business and properties of the Company and the Subsidiaries and their financial and legal condition as Acquiror deems necessary or advisable to familiarize itself therewith, provided that such investigations shall not unreasonably interfere with normal operations of the Company or the Subsidiaries. The Company shall permit Acquiror and its authorized representatives to have full access to the premises, books and records of the Company and the Subsidiaries with reasonable prior notice and at reasonable hours, and shall furnish Acquiror with such financial and operating data and other information with respect to the Company and the Subsidiaries as Acquiror may from time to time reasonably request. Any disclosure whatsoever during such investigation by Acquiror shall not constitute any endorsement or additional representations or warranties of the Company or any Subsidiary beyond those specifically set forth in this Agreement.
(a) General. The Parties acknowledge that the transactions contemplated by this Agreement require filings with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the United States Department of Justice (the “Antitrust Division”) under the Hart-Scott-Rodino Antitrust Improvement Act of 1976, as amended (the “HSR Act”).
(b) Filings. The Parties will each promptly, but in no event later than five (5) Business Days after the date of this Agreement, file or cause to be filed with the FTC and the Antitrust Division the notifications and reports required to be filed pursuant to the HSR Act in connection with the transactions contemplated by this Agreement and will undertake in good faith to file promptly any supplemental information which may be requested, which notifications and reports and filing of supplemental information will comply in all material respects with the requirements of such act. The Parties will each furnish to the other such information as either may reasonably request to make such filings. Acquiror shall be responsible for any filing fees with respect to such filings.
(c) Canadian Filings. If required, Acquiror will promptly file, but in no event later than ten (10) Business Days after the date of this Agreement, an application for an advance ruling certificate pursuant to Section 102 of the Competition Act (Canada) (the “Competition Act”) in respect of the transactions contemplated by this Agreement. If requested by Acquiror or the Canadian Commissioner of Competition, the Parties will promptly file a short-form or long-form pre-merger notification pursuant to the Competition Act. Acquiror shall be responsible for any filing fees with respect to such filing.
(d) Communications. The Parties will each promptly inform the other of any material communication made to, or received by it from, the FTC, the Antitrust Division or the Canadian Commissioner of Competition.
(e) Appeal. If the Antitrust Division brings a Claim seeking to prevent or restrain the transactions contemplated by this Agreement, if the FTC issues a complaint or petitions a court to enjoin the transactions contemplated by this Agreement, or if the Canadian Commissioner of Competition brings a Claim seeking to prevent or restrain the transactions contemplated by this Agreement, then the Parties shall use their reasonable best efforts to defend and/or appeal such Claim, petition or complaint.
(f) Canadian Competition Act Compliance. For purposes of this Agreement “Canadian Competition Act Compliance” means:
(i) the issuance of an advance ruling certificate pursuant to section 102 of the Competition Act in respect of the transactions contemplated by this Agreement;
(ii) Acquiror and the Company have given the notice required under section 114 of the Competition Act with respect to the transactions contemplated by this Agreement and the applicable waiting period under section 123 of the Competition Act has expired or been waived in accordance with the Competition Act; or
(iii) the obligation to give the requisite notice has been waived pursuant to subsection 113(c) of the Competition Act;
(g) Certain Representations and Warranties. None of the information supplied or to be supplied by a Party for inclusion in any regulatory filings prepared in connection with the transactions contemplated by this Agreement (collectively, the “Regulatory Filings”) by it, will, at the respective time the Regulatory Filings or any amendments or supplements to them are filed with the appropriate Governmental Entities, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made therein, in light of the circumstances under which they were made, not misleading. If at any time prior to the consummation of the transactions contemplated by this Agreement any act or event should be discovered by a Party which the applicable Law requires to be set forth in an amendment of, or a supplement to, the Regulatory Filings, then such Party will promptly so inform the others and will furnish all necessary information in writing to the others relating to such event.
(a) The Company and each of the Subsidiaries hereby exculpate (to the fullest extent permitted by applicable Law), contingent upon but automatically effective upon the Closing, and the Company and each of the Subsidiaries shall jointly and severally indemnify, defend and hold harmless, the present and former officers, employees and directors of the Company or any of the Subsidiaries (each an “Indemnified Party”)” against all costs, expenses, losses and liabilities (“Losses”) arising out of actions or omissions in their capacities as such occurring at or prior to the Closing to the fullest extent permitted under applicable Law, the Company’s or the Subsidiary’s certificate of incorporation or bylaws (or substantially equivalent documents), and any agreement between an Indemnified Party and the Company or any of the Subsidiaries in effect at the date of this Agreement, including, without limitation, advancing expenses incurred in the defense of any action or Claim, provided, however, that (i) the Company shall pay for only one counsel for all Indemnified Parties unless the use of one counsel for such Indemnified Parties would present such counsel with a conflict of interest and (ii) such advancement of expenses shall be subject to such Indemnified Party’s agreement to return any advanced funds if a court of competent jurisdiction, after all time for appeals having been exhausted, shall have determined that the Indemnified Party is not entitled to indemnity against such expenses under applicable law or the Company’s certificate of incorporation or bylaws.
(b) If for any reason the indemnity provided for in Section 5.14(a) is unavailable to any Indemnified Party or is insufficient to hold each such Indemnified Party harmless from all such Losses, then the Company and the Subsidiaries and their respective successors shall each contribute to the amount paid or payable by such Indemnified Party in such proportion as is appropriate to reflect not only the relative benefits received by the Company and the Subsidiaries on the one hand and such Indemnified Party, as the case may be, on the other but also the relative fault of such Person as well as any relevant equitable considerations (it being expressly agreed that the Indemnified Parties to whom this Section 5.14 applies are hereby made express and intended third party beneficiaries of this Section 5.14).
(c) The obligations of the Company and the Subsidiaries under this Section 5.14 shall not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this Section 5.14 applies (it being expressly agreed that the Indemnified Parties to whom this Section 5.14 applies are hereby made express and intended Person beneficiaries of this Section 5.14).
(d) Neither the Company nor any of the Subsidiaries or Acquiror will take any action to amend or terminate the provisions of the Company’s or the Subsidiaries’ certificates of incorporation or bylaws (or other governing documents) or any agreements between an Indemnified Party and the Company or any of the Subsidiaries so as to reduce, limit, alter or otherwise terminate the Company’s or the Subsidiaries’ obligations to indemnify any former officer, employee or director.
(e) If the Company or the Subsidiaries fail, for any reason, to satisfy or discharge, in whole or in part, their obligations pursuant to this Section 5.14 with respect to a claim for indemnification or contribution, Acquiror shall be liable for satisfying or discharging such indemnification or contribution obligation to the extent not satisfied or discharged by the Company and the Subsidiaries.
(a) No Injunctions. No Governmental Entity shall have enacted, issued, promulgated, enforced or entered any Governmental Order or Law that is in effect and that has the effect of making the Closing illegal or otherwise prohibiting consummation of the transactions contemplated by this Agreement, including the Merger; provided, however, that each of the Parties shall have used its reasonable best efforts to prevent the entry of such Governmental Order and to appeal as promptly as possible any such Governmental Order that is entered.
(b) Authorizations. All Authorizations of Governmental Entities required to consummate the transactions contemplated by this Agreement, including the Merger, shall have been obtained, all such Authorizations shall remain in full force and effect, no appeal shall have been filed challenging any such Authorizations, all statutory waiting periods in respect thereof, including under the HSR Act shall have expired or been terminated or waived and, in the case of Acquiror and Newco, no such Authorizations or expiration of a statutory waiting period shall contain a materially adverse condition. Canadian Competition Act Compliance shall have been satisfied.
(c) Listing. The shares of Acquiror Stock to be issued in the Merger shall have been approved for listing on the New York Stock Exchange, subject to official notice of issuance.
(a) Injunction, etc. No Claim with substantial merit, as determined by Acquiror’s Board of Directors in good faith, shall have been instituted by any Person, or, to the Knowledge of Acquiror, shall have been threatened in writing by any Governmental Entity, which has not been withdrawn, dismissed or otherwise eliminated, and which seeks (i) to prohibit, restrict or delay consummation of the transactions contemplated hereby or to limit in any material respect the right of Acquiror to control the business of the Company and the Subsidiaries after the Closing Date, or (ii) to subject Acquiror, Newco or their directors or officers to material liability on the ground that it or they have violated any Law in relation to the transactions contemplated by this Agreement.
(b) Representations and Warranties; Covenants and Agreements. The representations and warranties of the Company contained in this Agreement (i) shall have been true and correct at the date hereof and (ii), except for changes contemplated in this Agreement and where the failure of which could not be reasonably expected to have a Material Adverse Effect, it shall also be true and correct in all material respects at and as of the Closing Date, with the same force and effect as if made at and as of the Closing Date, provided, however, that representations and warranties that are confined to a specified date shall speak only as of such date and all “material,” “in all material respects,” “material adverse effect,” “immaterial,” “materially” and similar materiality qualifiers in Article III, shall be ignored for purposes of Section 6.2(b)(ii). The Company shall have performed or complied (or cured any noncompliance) in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by it at or prior to the Closing Date.
(c) Certificate. The Company shall have delivered to Acquiror a certificate, dated as of the Closing Date, executed on its behalf by an authorized officer, to the effect that the conditions specified in Section 6.2(b) have been satisfied.
(d) No Material Adverse Effect. After the date of this Agreement there shall not have been any Material Adverse Effect.
(e) Appraisal Rights. Holders of no more than three percent (3%) of the outstanding Company Common Shares shall have properly made a demand in writing to the Company for an appraisal with respect to such holder’s Company Common Shares in accordance with Delaware Law.
(f) Financing. Acquiror shall have obtained the financing under the Commitment Letters.
(g) Company Common Shares and Warrants Held by Holdings. The Exchange Agent shall have received an Election Form, Holder Representation Form and all Old Certificates and Warrants (or duly completed loss affidavits and, if required, indemnity bonds), where applicable, with respect to the Company Common Shares and Warrants owned by Holdings as of the date hereof, duly executed by Holdings or the holders of a majority of such Company Common Shares and Warrants.
(a) Injunction, etc. No Claim with substantial merit, as determined by the Company’s Board of Directors in good faith, shall have been instituted by any Person, or, to the Knowledge of the Company, shall have been threatened in writing by any Governmental Entity, which has not been withdrawn, dismissed or otherwise eliminated, and which seeks (i) to prohibit, restrict or delay consummation of the transactions contemplated hereby or (ii) to subject the Company or the Subsidiaries or their officers and directors to material liability on the ground that it or they have violated any Law in relation to the transactions contemplated by this Agreement.
(b) Representations and Warranties; Covenants and Agreements. The representations and warranties of Acquiror and Newco contained in this Agreement (i) shall have been true and correct at the date hereof and (ii), except for changes contemplated in this Agreement and where the failure of which could not be reasonably expected to have an Acquiror Material Adverse Effect, shall also be true and correct in all material respects at and as of the Closing Date, with the same force and effect as if made at and as of the Closing Date, provided, however, that representations and warranties that are confined to a specified date shall speak only as of such date and all “material,” “in all material respects,” “material adverse effect,” “immaterial,” “materially” and similar materiality qualifiers in Article IV, shall be ignored for purposes of Section 6.3(b)(ii). Acquiror and Newco shall have performed or complied (or cured any noncompliance) in all material respects with all agreements and covenants required by this Agreement to be performed or complied with by them at or prior to the Closing Date.
(c) Certificate. Each of Acquiror and Newco shall have delivered to the Company a certificate, dated as of the Closing Date, executed on its behalf by an authorized officer, to the effect that the conditions specified in Sections 6.1(c) and 6.3(b) have been satisfied.
(d) No Acquiror Material Adverse Effect. After the date of this Agreement there shall not have been any Acquiror Material Adverse Effect.
(b) The Certificate of Merger duly executed by the Company in the form required by applicable Law.
(c) The Company’s and the Subsidiaries’ corporate minute books, corporate seal and stock records.
(d) Letters of resignation and release in forms reasonably satisfactory to Acquiror, effective as of the Closing Date, from each of the officers and directors of the Company and the Subsidiaries listed in Section 7.1(d) of the Disclosure Letter except those officers that Acquiror notifies the Company prior to the Closing Date it wishes to retain.
(e) An opinion from Weil, Gotshal & Manges LLP, special counsel to the Company, substantially in the form attached hereto as Exhibit G, and an opinion from Weil, Gotshal & Manges LLP, special counsel to Holdings, substantially in the form attached hereto as Exhibit H, each dated as of the Closing Date.
(f) Copies of the resolutions of the Boards of Directors of the Company and its stockholders, authorizing the execution, delivery and performance of the Company Delivered Agreements, certified by the Secretary of the Company or other officer responsible for the books and records of the Company as being true and correct copies of the originals which have not been modified or amended and which are in effect at the Closing.
(g) A certificate of the Secretary of the Company or other officer responsible for the books and records of the Company certifying as of the Closing as to the incumbency of the officers of the Company and as to the signatures of such officers who have executed documents delivered at the Closing on behalf of the Company.
(h) Certificates, dated within five (5) days of the Closing, of the applicable Governmental Entity establishing that the Company is in existence and otherwise is in good standing to transact business.
(i) A Standstill Agreement in the form of Exhibit I attached hereto, with respect to the acquisition by Thomas H. Lee Advisors, L.L.C. and its Affiliates (“Lee”) of additional shares of Acquiror Stock, executed by Lee and certain Affiliates of Lee.
(j) An agreement between Holdings and Acquiror in the form of Exhibit J attached hereto (the “Shareholders Agreement”), with respect to Holdings’ participation on the Board of Directors of Acquiror and other matters, duly executed by Holdings.
(k) A certificate meeting the requirements of Treasury Regulation § 1.1445-2(c)(3).
(l) Such other documents as Acquiror may reasonably request.
(a) The Table of Contents and headings contained herein are for convenience of reference only, do not constitute a part of this Agreement, and shall not be deemed to limit or affect any of the provisions hereof.
(b) “Include” and “including” and similar expressions are not expressions of limitation and shall be construed as if followed by the words “without limitation.”
(c) “Business Day” means any day other than Saturday, Sunday, any day which is a legal holiday under the Laws of the State of New York and any day on which banking institutions in the State or City of New York are authorized or required by Law to close.
(d) The words “herein,” “hereto,” “hereof” and words of similar import refer to this Agreement as a whole and not to any particular Section or paragraph hereof.
(e) Words importing the singular will also include the plural, and vice versa.
(f) The symbol “$” means United States Dollars, and the symbol “C$” means Canadian dollars.
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