AGREEMENT
AND
PLAN OF MERGER
BY AND AMONG
TUMBLEWEED COMMUNICATIONS CORP.,
KEYHOLE ACQUISITION CORP.
AND
WORLDTALK COMMUNICATIONS CORPORATION
TABLE OF CONTENTS
ARTICLE I
MERGER..........................................................................
........... A-2
Section 1.1 THE
MERGER.............................................. A-2
Section 1.2 EFFECTIVE
TIME.......................................... A-2
Section 1.3
CLOSING................................................. A-2
Section 1.4 DIRECTORS AND OFFICERS OF THE SURVIVING
CORPORATION..... A-2
ARTICLE II
CONVERSION OF
SHARES.......................................................................
A-2
Section 2.1 CONVERSION OF
SHARES.................................... A-2
Section 2.2 SURRENDER OF
CERTIFICATES............................... A-3
Section 2.3 NO FRACTIONAL
SHARES.................................... A-3
Section 2.4 NO
DIVIDENDS............................................ A-4
Section 2.5 RETURN TO
PARENT........................................ A-4
Section 2.6 COMPANY OPTION
PLANS.................................... A-4
Section 2.7 COMPANY
WARRANTS........................................ A-5
Section 2.8 STOCK TRANSFER
BOOKS.................................... A-5
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF
COMPANY.................................................. A-6
Section 3.1
ORGANIZATION............................................ A-6
Section 3.2
CAPITALIZATION.......................................... A-6
Section 3.3 CORPORATE AUTHORIZATION; VALIDITY OF
AGREEMENT; COMPANY A-7
ACTION................................................
Section 3.4 CONSENTS AND APPROVALS; NO
VIOLATIONS................... A-8
Section 3.5 SEC REPORTS AND FINANCIAL
STATEMENTS.................... A-8
Section 3.6 ABSENCE OF CERTAIN
CHANGES.............................. A-9
Section 3.7 NO UNDISCLOSED
LIABILITIES.............................. A-9
Section 3.8 INFORMATION IN PROXY
STATEMENT/PROSPECTUS............... A-9
Section 3.9 EMPLOYEE BENEFIT
MATTERS................................ A-10
Section 3.10 LITIGATION; COMPLIANCE WITH
LAW......................... A-11
Section 3.11 NO
DEFAULT.............................................. A-11
Section 3.12
TAXES................................................... A-12
Section 3.13
CONTRACTS............................................... A-13
Section 3.14 ASSETS; REAL
PROPERTY................................... A-13
Section 3.15 ENVIRONMENTAL
MATTERS................................... A-13
Section 3.16 PRODUCT
LIABILITY....................................... A-14
Section 3.17 INTELLECTUAL
PROPERTY................................... A-14
Section 3.18 PROPRIETARY RIGHTS AND CONFIDENTIALITY
AGREEMENTS....... A-16
Section 3.19
INSURANCE............................................... A-16
Section 3.20 SUPPLIERS AND
CUSTOMERS................................. A-16
Section 3.21 LABOR
MATTERS........................................... A-17
Section 3.22 ACCOUNTS
RECEIVABLE..................................... A-17
Section 3.23 TRANSACTIONS WITH
AFFILIATES............................ A-18
Section 3.24 OPINION OF FINANCIAL
ADVISOR............................ A-18
Section 3.25 BROKERS OR
FINDERS...................................... A-18
Section 3.26 ACCOUNTING MATTERS;
REORGANIZATION...................... A-18
Section 3.27 STATE TAKEOVER
STATUTES................................. A-18
Section 3.28 FULL
DISCLOSURE......................................... A-18
Section 3.29 REGISTRATION AND PREEMPTIVE
RIGHTS...................... A-18
ii
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND
SUB........................................... A-19
Section 4.1
ORGANIZATION............................................ A-19
Section 4.2
CAPITALIZATION.......................................... A-19
Section 4.3 AUTHORIZATION; VALIDITY OF AGREEMENT;
NECESSARY A-19
ACTION................................................
Section 4.4 CONSENTS AND APPROVALS; NO
VIOLATIONS................... A-20
Section 4.5 INFORMATION IN PROXY
STATEMENT/PROSPECTUS............... A-20
Section 4.6 SEC REPORTS AND FINANCIAL
STATEMENTS.................... A-21
Section 4.7 ABSENCE OF CERTAIN
CHANGES.............................. A-21
Section 4.8 LITIGATION; COMPLIANCE WITH
LAW......................... A-21
Section 4.9 OPINION OF FINANCIAL
ADVISOR............................ A-22
Section 4.10 BROKERS OR
FINDERS...................................... A-22
Section 4.11 ACCOUNTING MATTERS;
REORGANIZATION...................... A-22
Section 4.12 OPERATIONS OF
SUB....................................... A-22
ARTICLE V
COVENANTS.......................................................................
........... A-22
Section 5.1 INTERIM OPERATIONS OF THE
COMPANY....................... A-22
Section 5.2 INTERIM OPERATIONS OF
PARENT............................ A-24
Section 5.3 ACCESS TO
INFORMATION................................... A-25
Section 5.4 HSR ACT
FILINGS......................................... A-25
Section 5.5 OTHER CONSENTS AND
APPROVALS............................ A-26
Section 5.6 EMPLOYMENT
AGREEMENTS................................... A-26
Section 5.7 NO SOLICITATION BY THE
COMPANY.......................... A-26
Section 5.8 NO SOLICITATION BY
PARENT............................... A-28
Section 5.9 STOCKHOLDERS'
MEETINGS.................................. A-28
Section 5.10 PROXY STATEMENT/PROSPECTUS; REGISTRATION
STATEMENT...... A-29
Section 5.11 ADDITIONAL
AGREEMENTS................................... A-30
Section 5.12
PUBLICITY............................................... A-30
Section 5.13 NOTIFICATION OF CERTAIN
MATTERS......................... A-30
Section 5.14 DIRECTORS' AND OFFICERS' INSURANCE AND
A-30
INDEMNIFICATION.......................................
Section 5.15 AFFILIATE
AGREEMENTS.................................... A-31
Section 5.16
COOPERATION............................................. A-31
Section 5.17 LETTERS OF
ACCOUNTANTS.................................. A-32
Section 5.18 CONSENTS OF
ACCOUNTANTS................................. A-32
Section 5.19 SUBSEQUENT FINANCIAL
STATEMENTS......................... A-33
Section 5.20 ACCOUNTING AND TAX
TREATMENT............................ A-33
Section 5.21 NASDAQ
QUALIFICATION.................................... A-33
Section 5.22 EMPLOYEE PLANS AND
ARRANGEMENTS......................... A-33
Section 5.23 REGISTRATION
RIGHTS..................................... A-33
ARTICLE VI
CONDITIONS......................................................................
........... A-34
Section 6.1 CONDITIONS TO THE OBLIGATIONS OF EACH
PARTY............. A-34
Section 6.2 CONDITIONS TO THE OBLIGATIONS OF PARENT
AND SUB......... A-34
Section 6.3 CONDITIONS TO THE OBLIGATIONS OF THE
COMPANY............ A-35
ARTICLE VII
TERMINATION, AMENDMENT AND
WAIVER.......................................................... A-36
Section 7.1
TERMINATION............................................. A-36
Section 7.2 EFFECT OF
TERMINATION................................... A-37
Section 7.3
AMENDMENT............................................... A-37
Section 7.4 EXTENSION;
WAIVER....................................... A-37
iii
ARTICLE VIII
MISCELLANEOUS...................................................................
........... A-38
Section 8.1 FEES AND
EXPENSES....................................... A-38
Section 8.2 NONSURVIVAL OF REPRESENTATIONS AND
WARRANTIES........... A-38
Section 8.3
NOTICES................................................. A-38
Section 8.4
INTERPRETATION.......................................... A-39
Section 8.5
COUNTERPARTS............................................ A-39
Section 8.6 ENTIRE AGREEMENT; NO THIRD PARTY
BENEFICIARIES; RIGHTS
OF
OWNERSHIP.......................................... A-39
Section 8.7
SEVERABILITY............................................ A-39
Section 8.8 GOVERNING
LAW........................................... A-39
Section 8.9
ASSIGNMENT.............................................. A-39
Exhibits
iv
INDEX OF DEFINED TERMS
Acquisition Agreement....................................... 5.7(b)
Agreement................................................... Preamble
Alternative Transaction..................................... 5.7(a)
Ancillary Agreements........................................ Recitals
Antitrust Laws.............................................. 5.4(b)
Assertion................................................... 5.14
Audit....................................................... 3.12(j)
Certificate of Merger....................................... 1.2
Certificates................................................ 2.1(d)
Closing..................................................... 1.3
Closing Date................................................ 1.3
Code........................................................ Recitals
Company..................................................... Preamble
Company Agreement........................................... 3.4
Company Balance Sheet....................................... 3.22
Company Benefit Plans....................................... 3.9(a)
Company Board............................................... 3.3(b)
Company Common Stock........................................ 2.1(a)
Company Financial Statements................................ 3.5
Company Option Plans........................................ 2.6
Company Options............................................. 2.6
Company Preferred Stock..................................... 3.2(a)
Company SEC Documents....................................... 3.5
Company Special Meeting..................................... 5.9(a)
Company Stockholder Approval................................ 3.3(a)
Company Stockholders Agreements............................. Recitals
Company Warrants............................................ 2.7
Competing Proposal.......................................... 5.8
Confidentiality Agreement................................... 5.3
DGCL........................................................ 1.1
Disclosure Schedule......................................... Article III
Effective Time.............................................. 1.2
Employment Agreements....................................... Recitals
Environmental Claims........................................ 3.15
Environmental Laws.......................................... 3.15
ERISA....................................................... 3.9(a)
Excess Shares............................................... 2.3(b)
Exchange Act................................................ 3.4
Exchange Agent.............................................. 2.2
Exchange Ratio.............................................. 2.1(a)
GAAP........................................................ 3.5
Governmental Entity......................................... 3.4
HMO......................................................... 3.9(d)
HSR Act..................................................... 3.4
HSR Authority............................................... 5.4(a)
Indemnified Liability....................................... 5.14
Indemnified Parties......................................... 5.14
Indemnified Party........................................... 5.14
Indemnitors................................................. 5.14
v
Intellectual Property....................................... 3.17(a)
IRS......................................................... 3.9(a)
License Agreements.......................................... 3.17(b)
Licensed Software........................................... 3.17(k)
Liens....................................................... 3.2(c)
material adverse effect..................................... 3.1
Materials of Environmental Concern.......................... 3.15
Merger...................................................... 1.1
Merger Consideration........................................ 2.1(a)
Merger Filing............................................... 1.2
Millennial Date Data........................................ 3.17(k)
Non-Competition Agreements.................................. Recitals
Option Agreement............................................ Recitals
Parent...................................................... Preamble
Parent Board................................................ 5.9(b)
Parent Common Stock......................................... 2.1(a)
Parent Preferred Stock...................................... 4.2(a)
Parent Registration Statement............................... 5.10(a)
Parent SEC Documents........................................ 4.6
Parent Special Meeting...................................... 5.9(b)
Parent Stockholder Approval................................. 4.3(a)
Parent Stockholders Agreement............................... Recitals
Proxy statement/prospectus.................................. 5.10(a)
Real Property............................................... 3.14
Requisite Regulatory Approvals.............................. 5.5
Restraints.................................................. 6.1(d)
Rights...................................................... 3.2(b)
SEC......................................................... 3.5
Secretary of State.......................................... 1.2
Securities Act.............................................. 3.5
Shares Trust................................................ 2.3(c)
Software.................................................... 3.17(j)
Special Meetings............................................ 5.9(b)
Sub......................................................... Preamble
Subsequent Determination.................................... 5.7(b)
Subsidiary.................................................. 3.1
Superior Proposal........................................... 5.7(b)
Surviving Corporation....................................... 1.1
System...................................................... 3.17(l)
Tax......................................................... 3.12(j)
Tax Authority............................................... 3.12(j)
Tax Returns................................................. 3.12(j)
Taxes....................................................... 3.12(j)
Third Party................................................. 5.7(a)
Third Party Expenses........................................ 8.1(a)
Trade Secrets............................................... 3.17(a)
Trademarks.................................................. 3.17(a)
WARN Act.................................................... 3.21(b)
vi
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "AGREEMENT"), dated as of November 18,
1999, by and among Tumbleweed Communications Corp., a Delaware corporation
("PARENT"), Keyhole Acquisition Corp., a Delaware corporation and a direct
wholly owned subsidiary of Parent ("SUB"), and Worldtalk Communications
Corporation, a Delaware corporation (the "COMPANY").
WITNESSETH:
WHEREAS, the Boards of Directors of Parent and Sub have approved, and deem
it advisable and in the best interests of their respective stockholders to
consummate, a strategic business combination between the Company and Parent upon
the terms and subject to the conditions set forth herein;
WHEREAS, the Board of Directors of the Company, having determined that such
combination is desirable, has approved the transactions contemplated by this
Agreement and the Ancillary Agreements (as defined below);
WHEREAS, as a condition and inducement to Parent's and Sub's willingness to
enter into this Agreement and incur the obligations set forth herein,
concurrently with the execution and delivery of this Agreement, (i) Parent and
certain stockholders of the Company identified in SCHEDULE A hereto have entered
into a Voting Agreement in the form of EXHIBIT A hereto (the "COMPANY
STOCKHOLDERS AGREEMENTS"), pursuant to which, among other things, such
stockholders agree to vote in favor of approval and adoption of this Agreement;
(ii) the Company and certain key employees of the Company identified in
SCHEDULE B hereto have entered into non-competition agreements (the
"NON-COMPETITION AGREEMENTS") in the form of EXHIBIT B-1 hereto, and employment
agreements (the "EMPLOYMENT AGREEMENTS") in the form of EXHIBIT B-2 hereto, the
effectiveness of which are conditioned upon the consummation of the transactions
contemplated hereby; and (iii) Parent and the Company have entered into an
Option Agreement in the form of EXHIBIT C hereto (the "OPTION AGREEMENT"),
pursuant to which, among other things, the Company grants to Parent an option to
purchase newly issued shares of Company Common Stock representing 19.9% of the
total outstanding shares of Company Common Stock;
WHEREAS, as a condition and inducement to the Company's willingness to enter
into this Agreement and incur the obligations set forth herein, concurrently
with the execution and delivery of this Agreement, (i) the Company and certain
stockholders of Parent identified in SCHEDULE D hereto have entered into a
Voting Agreement in the form of EXHIBIT D hereto (the "PARENT STOCKHOLDERS
AGREEMENTS"), pursuant to which, among other things, such stockholders agree to
vote in favor of approval and adoption of this Agreement (the Company
Stockholders Agreements, the Parent Stockholders Agreements, the Non-Competition
Agreements, the Employment Agreements and the Option Agreement are collectively
referred to herein as the "ANCILLARY AGREEMENTS");
WHEREAS, for United States federal income tax purposes, it is intended that
the Merger (as defined in Section 1.1 hereof) shall qualify as a reorganization
within the meaning of Section 368(a) of the Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder (the "CODE"), and
this Agreement is intended to be and is adopted as a plan of reorganization
within the meaning of Section 368 of the Code; and
WHEREAS, for accounting purposes, it is intended that the Merger shall be
accounted for as a "pooling of interests" in conformity with generally accepted
accounting principles, as described in Accounting Principles Board Opinion
No. 16 and the applicable rules and regulations of the SEC.
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements, and other good and
valuable consideration, set forth herein and in the
Ancillary Agreements, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
MERGER
Section 1.1 THE MERGER. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.2 hereof), the Company
and Sub shall consummate a merger (the "MERGER") pursuant to which (a) Sub shall
be merged with and into the Company and the separate corporate existence of Sub
shall thereupon cease, (b) the Company shall be the successor or surviving
corporation (the "SURVIVING CORPORATION") in the Merger and shall continue to be
governed by the laws of the State of Delaware and (c) the separate corporate
existence of the Company, with all its rights, privileges, immunities, powers
and franchises, shall continue unaffected by the Merger.
Pursuant to the Merger, (a) the Certificate of Incorporation of Sub, as in
effect immediately prior to the Effective Time, shall be the Certificate of
Incorporation of the Surviving Corporation until thereafter amended as provided
by law and such Certificate of Incorporation, and (b) the By-laws of Sub, as in
effect immediately prior to the Effective Time, shall be the By-laws of the
Surviving Corporation until thereafter amended as provided by law, such
Certificate of Incorporation and such By-laws. The Merger shall have the effects
set forth in the Delaware General Corporation Law (the "DGCL").
Section 1.2 EFFECTIVE TIME. Parent, Sub and the Company will cause a
certificate of merger (the "CERTIFICATE OF MERGER") in the form of EXHIBIT E
hereto, to be filed on the Closing Date (as defined in Section 1.3 hereof) (or
on such other date as Parent and the Company may agree) with the Secretary of
State of the State of Delaware (the "SECRETARY OF STATE") as provided in the
DGCL. The Merger shall become effective on the date on which the Certificate of
Merger pursuant to Section 251 of the DGCL and any other documents necessary to
effect the Merger in accordance with the DGCL are duly filed with the Secretary
of State (the "MERGER FILING") or such time as is agreed upon by the parties and
specified in the Certificate of Merger, and such time is hereinafter referred to
as the "EFFECTIVE TIME."
Section 1.3 CLOSING. The closing of the Merger (the "CLOSING") will take
place at 8:00 a.m., Pacific Standard Time, on a date to be specified by the
parties, which shall be no later than the second business day after satisfaction
or waiver of all of the conditions set forth in Article VI hereof (the "CLOSING
DATE"), at the offices of Skadden, Arps, Slate, Meagher & Flom LLP, 525
University Avenue, Palo Alto, California 94301, or such other date or place as
agreed to in writing by the parties hereto.
Section 1.4 DIRECTORS AND OFFICERS OF THE SURVIVING CORPORATION. The
directors and officers of the Sub at the Effective Time shall, from and after
the Effective Time, be the directors and officers, respectively, of the
Surviving Corporation until their successors shall have been duly elected or
appointed or qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of Incorporation and
By-laws.
ARTICLE II
CONVERSION OF SHARES
Section 2.1 CONVERSION OF SHARES.
(a) Each share of common stock, par value $.01 per share ("COMPANY
COMMON STOCK"), of the Company issued and outstanding immediately prior to
the Effective Time (other than any Shares to be canceled pursuant to
Section 2.1(c) hereof) shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into the right to receive
0.26 (the "EXCHANGE RATIO") of a
A-2
fully paid and nonassessable share (the "MERGER CONSIDERATION") of common
stock, par value $.001 per share, of Parent (the "PARENT COMMON STOCK").
(b) Each share of common stock, par value $.001 per share, of Sub issued
and outstanding immediately prior to the Effective Time shall, by virtue of
the Merger and without any action on the part of Parent, be converted into
one fully paid and nonassessable share of common stock, par value $.001 per
share, of the Surviving Corporation.
(c) Any shares of Company Common Stock that are owned by Parent, Sub or
any other wholly owned Subsidiary (as defined in Section 3.1) of Parent
shall be canceled and retired and shall cease to exist and no Parent Common
Stock or other consideration shall be delivered in exchange therefor.
(d) On and after the Effective Time, holders of certificates (the
"CERTIFICATES"), which immediately prior to the Effective Time represented
outstanding shares of Company Common Stock, shall cease to have any rights
as stockholders of the Company, except the right to receive, subject to
Section 2.5 hereof, the Merger Consideration (and cash in lieu of any
fractional share as contemplated by Section 2.3) for each share of Company
Common Stock held by them.
Section 2.2 SURRENDER OF CERTIFICATES. At or promptly after the Effective
Time, Parent shall make available to Equiserve L.P., or a bank reasonably
acceptable to the Company (the "EXCHANGE AGENT"), in trust for the benefit of
the holders of shares of Company Common Stock for exchange in accordance with
this Article II, (i) cash in an amount sufficient to pay cash in lieu of
fractional shares pursuant to Section 2.3, and (ii) certificates representing
the aggregate number of shares of Parent Common Stock issuable pursuant to
Section 2.1 hereof. Promptly after the Effective Time, the Exchange Agent shall
mail to each holder of record of a Certificate or Certificates a letter of
transmittal (which shall specify that delivery shall be effected, and risk of
loss and title to the Certificates shall pass, only upon proper delivery of the
Certificates to the Exchange Agent) and instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing Parent
Common Stock and cash in lieu of fractional shares, if applicable. Upon
surrender of a Certificate or Certificates to the Exchange Agent, together with
such letter of transmittal, duly executed, the holder of such Certificate shall
be entitled to receive in exchange therefor the Merger Consideration for each
share of Company Common Stock formerly represented by such Certificate or
Certificates, and the Certificate(s) so surrendered shall forthwith be canceled.
Until surrendered as contemplated by this Article II, from and after the
Effective Time each Certificate shall be deemed to represent only the right to
receive the Merger Consideration (and cash in lieu of any fractional share as
contemplated by Section 2.3) for each share of Company Common Stock formerly
represented by such Certificate, and shall not evidence any interest in, or any
right to exercise the rights of a stockholder of, Parent. If a certificate
representing Parent Common Stock is to be issued or a cash payment in lieu of
fractional share interests is to be made to a person other than the one in whose
name the Certificate surrendered in exchange therefor is registered, it shall be
a condition to such issuance or payment that such Certificate be properly
endorsed (or accompanied by an appropriate instrument of transfer) and
accompanied by evidence that any applicable stock transfer taxes have been paid
or provided for.
Section 2.3 NO FRACTIONAL SHARES. (a) No certificates representing
fractional shares of Parent Common Stock shall be issued upon the surrender for
exchange of Certificates, and such fractional share interests shall not entitle
the owner thereof to vote or to any other rights of a stockholder of Parent. In
lieu of such fractional shares, any holder of Company Common Stock who would
otherwise be entitled to receive a fraction of a share of Parent Common Stock
(after aggregating all shares of Parent Common Stock issuable to such holder)
shall, upon surrender of such holder's Certificate or Certificates, be paid in
cash the dollar amount (rounded to the nearest whole cent), without interest,
determined by multiplying such fraction by the closing price of a share of
Parent Common Stock on Nasdaq Stock Market on the date the Merger became
effective.
A-3
(b) As promptly as practicable following the Effective Time, the
Exchange Agent shall deliver the Merger Consideration, whether in the form
of Parent Common Stock or cash in lieu of fractional shares, or both to each
holder of a Certificate or Certificates which have been surrendered.
Section 2.4 NO DIVIDENDS. No dividends or other distributions declared or
made after the Effective Time with respect to shares of Parent Common Stock with
a record date after the Effective Time shall be paid to the holder of any
unsurrendered Certificate with respect to the Parent Common Stock represented
thereby until the holder of such Certificate shall surrender such Certificate.
Dividends or other distributions with a record date after the Effective Time
payable in respect of shares of Parent Common Stock held by the Exchange Agent
shall be held in trust for the benefit of such holders of unsurrendered
Certificates. Following surrender of any previously unsurrendered Certificate,
there shall be paid to the holder of the certificates representing whole shares
of Parent Common Stock issued in exchange therefor, without interest, (i) at the
time of such surrender, the amount of any dividends or other distributions with
a record date after the Effective Time theretofore paid with respect to such
whole shares of Parent Common Stock and (ii) at the date of payment of any
dividends or other distributions with a record date after the Effective Time but
prior to surrender and a payment date subsequent to surrender, the amount of
such dividends or other distributions payable with respect to such whole shares
of Parent Common Stock.
Section 2.5 RETURN TO PARENT. Any shares of Parent Common Stock made
available to the Exchange Agent and any portion of the Shares Trust not
exchanged for Certificates within six months after the Effective Time and any
dividends and distributions held by the Exchange Agent for payment or delivery
to the holders of unsurrendered Certificates formerly representing shares of
Company Common Stock and unclaimed at the end of such six month period shall be
redelivered or repaid by the Exchange Agent to Parent, after which time any
holder of Certificates who has not theretofore delivered or surrendered such
Certificates to the Exchange Agent, subject to applicable law, shall look as a
general creditor only to Parent for payment of the Merger Consideration, cash in
lieu of fractional share interests, and any such dividends or distributions with
respect to its shares of Parent Common Stock. Notwithstanding the foregoing,
none of Parent, the Exchange Agent, the Surviving Corporation or any other party
shall be liable to any holder of a Certificate formerly representing shares of
Company Common Stock for any Merger Consideration, cash in lieu of fractional
share interests or dividends or distributions properly delivered to a public
official pursuant to applicable property, escheat or similar laws. If
Certificates are not surrendered prior to two years after the Effective Time,
unclaimed Merger Consideration (or funds with respect to fractional shares)
payable with respect to such shares of Company Common Stock shall, to the extent
permitted by applicable law, become the property of the Surviving Corporation,
free and clear of all claims or interest of any person previously entitled
thereto.
Section 2.6 COMPANY OPTION PLANS. At the Effective Time, all options (the
"COMPANY OPTIONS") then outstanding, whether or not vested and exercisable,
under the Company's 1992 Stock Option Plan, 1996 Equity Incentive Plan, 1996
Directors Stock Option Plan and 1996 Employee Stock Purchase Plan, in each case
as amended (collectively, the "COMPANY OPTION PLANS"), shall be assumed by
Parent. Each Company Option assumed by Parent other than Company Options issued
pursuant to the Company 1996 Employee Stock Purchase Plan shall be subject to,
and exercisable upon, the same terms and conditions as under the applicable
Company Option Plan and the applicable option agreement issued thereunder,
except that (a) each assumed Company Option shall be exercisable for, and
represent the right to acquire, that number of shares of Parent Common Stock
(rounded down to the nearest whole share) equal to (i) the number of shares of
Company Common Stock subject to such Company Option immediately prior to the
Effective Time multiplied by (ii) the Exchange Ratio; and (b) the option price
per share of Parent Common Stock subject to each assumed Company Option shall be
an amount equal to (i) the option price per share of Company Common Stock
subject to such Company Option in effect immediately prior to the Effective Time
divided by (ii) the Exchange Ratio (rounded up to the nearest whole cent). The
Company represents and warrants that each of the foregoing actions may be taken
and effected by the Company without the consent of any holder of Company
Options. Each assumed purchase right under the Company
A-4
1996 Employee Stock Purchase Plan shall continue to have, and be subject to, the
terms and conditions set forth in the Company 1996 Employee Stock Purchase Plan
and the documents governing the assumed purchase right, except that the purchase
price of such shares of Parent Common Stock for each respective purchase date
under each assumed purchase right shall be the lower of (i) the quotient
determined by dividing eighty-five percent (85%) of the fair market value of
Company Common Stock on the offering date of each assumed offering period by the
Exchange Ratio or (ii) eighty-five percent (85%) of the fair market value of the
Parent Common Stock on each purchase date of each assumed offering period
occurring after the Effective Time (with the number of shares rounded to the
nearest whole share and the purchase price rounded to the nearest whole cent).
The assumed purchase rights shall be exercised at such times following the
Effective Time as set forth in the Company 1996 Employee Stock Purchase Plan and
each participant shall, accordingly, be issued shares of Parent Common Stock at
such times pursuant to the Company 1996 Employee Stock Purchase Plan. The
Company 1996 Employee Stock Purchase Plan shall terminate with the exercise of
the last assumed purchase right, and no additional purchase rights shall be
granted under the Company Employee Stock Purchase Plan following the Effective
Time. Parent agrees that from and after the Effective Time, employees of the
Surviving Corporation may participate in Parent's employee stock purchase plan,
subject to the terms and conditions of such plan.
The adjustment provided herein with respect to stock options shall be and is
intended to be effected in a manner which is consistent with Section 424(a) of
the Internal Revenue Code of 1986, as amended (the "CODE"). The duration,
vesting schedule, exercisability and other terms of each option immediately
after the Effective Time shall be the same as the corresponding terms in effect
immediately before the Effective Time, except that all references to Company in
the Company Option Plans (and the corresponding references in the option
agreement documenting such option) shall be deemed to be references to Parent.
Except as set forth in Section 3.2(d) of the Disclosure Schedule (as defined in
Article III hereof), vesting of Company Options shall not be accelerated as a
result of the Merger. Continuous employment with the Company or its Subsidiaries
shall be credited to the optionee for purposes of determining the vesting of all
assumed Company Options after the Effective Time. As soon as reasonably
practicable, but in no event later than 30 days after the Effective Time, Parent
will issue to each holder of an assumed Company Option notice of the foregoing
assumption by Parent.
Parent shall file with the SEC, no later than ten business days after the
Effective Time, a Registration Statement on Form S-8 relating to the shares of
Parent Common Stock issuable with respect to the Company Options assumed by
Parent in accordance with this Section 2.6.
Section 2.7 COMPANY WARRANTS. At the Effective Time, all warrants to
purchase Company Common Stock (the "COMPANY WARRANTS") then outstanding, whether
or not exercisable, shall be assumed by Parent. Each Company Warrant assumed by
Parent shall be subject to, and exercisable upon, the same terms and conditions
as under the applicable warrant agreement issued thereunder, except that
(a) each assumed Company Warrant shall be exercisable for, and represent the
right to acquire, that number of shares of Parent Common Stock (rounded down to
the nearest whole share) equal to (i) the number of shares of Company Common
Stock subject to such Company Warrant immediately prior to the Effective Time
multiplied by (ii) the Exchange Ratio; and (b) the exercise price per share of
Parent Common Stock subject to each assumed Company Warrant shall be an amount
equal to (i) the price per share of Company Common Stock subject to such Company
Warrant in effect immediately prior to the Effective Time divided by (ii) the
Exchange Ratio (rounded up to the nearest whole cent). The Company represents
and warrants that each of the foregoing actions may be taken and effected by the
Company without the consent of any holder of Company Warrants, except for the
warrant held by Comdisco, Inc. to purchase 2,250 shares of the Company Common
Stock at an exercise price of $18.10 per share pursuant to a Warrant Agreement
dated as of July 30, 1993.
Section 2.8 STOCK TRANSFER BOOKS. At the Effective Time, the stock
transfer books of the Company shall be closed and no transfer of shares of
Company Common Stock shall thereafter be made. If, after the Effective Time,
certificates formerly representing shares of Company Common Stock are presented
to the
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Surviving Corporation, they shall be canceled and exchanged for cash and/or
certificates representing Parent Common Stock pursuant to this Article II.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF COMPANY
Except as set forth in the disclosure schedule prepared and signed by the
Company and delivered to Parent simultaneously with the execution hereof (the
"DISCLOSURE SCHEDULE"), the Company represents and warrants to Parent and Sub
all of the statements contained in this Article III. Each exception set forth in
the Disclosure Schedule and each other response to this Agreement set forth in
the Disclosure Schedule is identified by reference to, or has been grouped under
a heading referring to, a specific individual section of this Agreement and
relates only to such section, except to the extent that one portion of the
Disclosure Schedule specifically refers to another portion thereof, identifying
such other portion by section reference or similar specific cross reference.
Section 3.1 ORGANIZATION. Each of the Company and its Subsidiaries is a
corporation or other entity duly organized, validly existing, duly qualified or
licensed to do business and in good standing under the laws of the jurisdiction
of its incorporation or organization and in each jurisdiction in which the
nature of the business conducted by it makes such qualification or licensing
necessary, and has all requisite corporate or other power and authority and all
necessary governmental approvals to own, lease and operate its properties and to
carry on its business as now being conducted, except where the failure to be so
organized, existing and in good standing or to have such power, authority, and
governmental approvals would not have a material adverse effect on the Company
and its Subsidiaries. As used in this Agreement, the word "SUBSIDIARY" means,
with respect to any party, any corporation or other organization, whether
incorporated or unincorporated, of which (i) such party or any other Subsidiary
of such party is a general partner (excluding such partnerships where such party
or any Subsidiary of such party do not have a majority of the voting interest in
such partnership) or (ii) at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
board of directors or others performing similar functions with respect to such
corporation or other organization is directly or indirectly owned or controlled
by such party or by any one or more of its Subsidiaries, or by such party and
one or more of its Subsidiaries. As used in this Agreement, any reference to any
event, change or effect having a "MATERIAL ADVERSE EFFECT" on or with respect to
any entity (or group of entities taken as a whole) means such event, change or
effect, individually or in the aggregate with such other events, changes, or
effects, which is materially adverse to the financial condition, businesses,
results of operations, assets, liabilities, properties or prospects of such
entity (or, if used with respect thereto, of such group of entities taken as a
whole), it being understood that none of the following shall be deemed by itself
or by themselves, either alone or in combination, to constitute a material
adverse effect: (i) a change in the market price or trading volume of Company
Common Stock or Parent Common Stock, as the case may be, (ii) changes
attributable to financial results for the quarter ended December 31, 1999,
(iii) conditions affecting the economy of the United States of America as a
whole, (iv) conditions affecting generally the industry in which Parent or the
Company, as applicable, operates, or (v) changes after the date hereof in laws
or regulations applicable to Parent or the Company, as the case may be.
Section 3.1 of the Disclosure Schedule, sets forth a complete list of the names,
jurisdiction of incorporation or other formation and capitalization of each of
the Company's Subsidiaries and the jurisdictions in which the Company and each
of its Subsidiaries are qualified to do business.
Section 3.2 CAPITALIZATION.
(a) The authorized capital stock of the Company consists of 25,000,000
shares of Company Common Stock and 6,500,000 shares of preferred stock, par
value $.01 per share (the "COMPANY PREFERRED STOCK"). As of the date hereof,
(i) 14,519,246 shares of Company Common Stock were issued and outstanding,
(ii) no shares of Company Preferred Stock were issued and outstanding,
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(iii) 2,627,068 shares of Company Common Stock were reserved for issuance
upon the exercise of outstanding Company Options pursuant to the Company
Option Plans and (iv) 1,693,916 shares of Company Common Stock were reserved
for issuance upon the exercise of outstanding Company Warrants. All of the
issued and outstanding shares of Company Common Stock are validly issued,
fully paid and nonassessable, were issued in compliance with applicable law,
and are not subject to any preemptive or similar rights.
(b) Except as set forth in Section 3.2(b) of the Disclosure Schedule and
other than pursuant to the Option Agreement, there are not now, and at the
Effective Time there will not be, any (i) outstanding right, subscription,
warrant, call, option or other agreement or arrangement of any kind
(collectively, "RIGHTS") to purchase or otherwise to receive from the
Company or any of its Subsidiaries any of the outstanding authorized but
unissued or treasury shares of the capital stock or any other security of
the Company or any of its Subsidiaries, (ii) outstanding security of any
kind convertible into or exchangeable for such capital stock or
(iii) voting trust or other agreement or understanding to which the Company
or any of its Subsidiaries is a party or is bound with respect to the voting
of the capital stock of the Company or any of its Subsidiaries.
(c) Each outstanding share of capital stock of each Subsidiary of the
Company is duly authorized, validly issued, fully paid and nonassessable and
each such share owned by the Company or any Subsidiary of the Company is
owned free and clear of any mortgage, pledge, assessment, security interest,
lease, sublease, lien, adverse claim, levy, charge, option, right of others
or restriction (whether on voting, sale, transfer, disposition or otherwise)
or other encumbrance of any kind, whether imposed by agreement,
understanding, law or equity, or any conditional sale contract, title
retention contract or other contract to give or to refrain from giving any
of the foregoing (collectively, "LIENS").
(d) Section 3.2(d) of the Disclosure Schedule sets forth a listing of
(i) all outstanding Company Options as of the date hereof, which schedule
shows the portion of each Company Option which is then vested, the vesting
and acceleration provisions thereof, if any, the date upon which each
Company Option expires and whether or not such Company Option is intended to
qualify as an "incentive stock option" within the meaning of Section 422 of
the Code; (ii) all outstanding Company Warrants as of the date hereof, which
schedule shows the portion of each Company Warrant which is exercisable and
the date upon which each Company Warrant expires; and (iii) each outstanding
Company Option and Company Warrant that will accelerate, in whole or in
part, pursuant to its terms as a result of the transactions contemplated
hereby, which schedule summarizes the terms of acceleration pursuant to such
Company Option, Company Warrant or Company Option Plan.
Section 3.3 CORPORATE AUTHORIZATION; VALIDITY OF AGREEMENT; COMPANY ACTION.
(a) The Company has full corporate power and authority to execute and
deliver this Agreement and the Ancillary Agreements to which it is a party
and, subject to obtaining approval and adoption of this Agreement by the
affirmative vote of the holders of a majority of the outstanding shares of
Company Common Stock (the "COMPANY STOCKHOLDER APPROVAL"), to consummate the
transactions contemplated hereby and thereby. The execution, delivery and
performance by the Company of this Agreement and the Ancillary Agreements to
which the Company is a party, and the consummation by it of the transactions
contemplated hereby and thereby, have been duly and validly authorized by
all necessary corporate action on the part of the Company and, except for
obtaining the Company Stockholder Approval, no other corporate action on the
part of the Company is necessary to authorize the execution and delivery by
the Company of this Agreement and the Ancillary Agreements to which it is a
party and the consummation of the transactions contemplated hereby and
thereby. Each of this Agreement and the Ancillary Agreements to which it is
a party have been duly executed and delivered by the Company and, if
applicable, the Company's stockholders and affiliates and, assuming each of
this Agreement and such Ancillary Agreements constitutes a valid and binding
obligation of the other parties hereto and thereto, constitutes a valid and
binding obligation of the Company and such
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stockholders and affiliates enforceable against the Company and such
stockholders and affiliates in accordance with their respective terms,
except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding
therefor may be brought.
(b) The Board of Directors of the Company (the "COMPANY BOARD") has duly
and validly approved and taken all corporate action required to be taken by
such Company Board for the consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, and resolved to recommend that
the stockholders of the Company approve and adopt this Agreement. The
Company Stockholder Approval is the only vote of the holders of any class or
series of Company capital stock necessary to approve this Agreement and to
consummate the Merger. The Company has taken all actions necessary with
respect to the entering into of this Agreement and the Ancillary Agreements
to which it is a party, the consummation of the Merger and the other
transactions contemplated by this Agreement and the Ancillary Agreements so
as to render inapplicable to such transactions the restrictions on business
combinations contained in Section 203 of the DGCL.
Section 3.4 CONSENTS AND APPROVALS; NO VIOLATIONS. Except as disclosed in
Section 3.4 of the Disclosure Schedule and except for the Company Stockholder
Approval, the Merger Filing, and filings, permits, authorizations, consents and
approvals as may be required under, and other applicable requirements of, the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
ACT"), and the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT"),
the Securities Act and state blue sky laws, neither the execution, delivery or
performance of this Agreement or any Ancillary Agreements by the Company nor the
consummation by the Company of the transactions contemplated hereby or thereby
nor compliance by the Company with any of the provisions hereof or thereof will
(i) conflict with or result in any breach of any provision of the certificate of
incorporation or by-laws or similar organizational documents of the Company or
of any of its Subsidiaries, (ii) require any filing with, or permit,
authorization, consent or approval of, any court, arbitral tribunal,
administrative agency or commission or other governmental or other regulatory
authority or agency (a "GOVERNMENTAL ENTITY"), (iii) result in a violation or
breach of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, amendment, cancellation or
acceleration or result in the creation of any lien) under, any of the terms,
conditions or provisions of any material note, bond, mortgage, indenture,
guarantee, other evidence of indebtedness, lease, license, contract, agreement
or other instrument or obligation to which the Company or any of its
Subsidiaries is a party or by which any of them or any of their properties or
assets may be bound (a "COMPANY AGREEMENT") or (iv) violate any order, writ,
injunction, decree, statute, rule or regulation applicable to the Company, any
of its Subsidiaries or any of their properties or assets, except in the case of
clause (ii), (iii) or (iv) where the failure to obtain such permits,
authorizations, consents or approvals or to make such filings, or where such
violations, breaches or defaults would not, individually or in the aggregate,
have a material adverse effect on the Company and its Subsidiaries, taken as a
whole, and will not materially impair the ability of the Company to consummate
the transactions contemplated hereby or by the Ancillary Agreements.
Section 3.5 SEC REPORTS AND FINANCIAL STATEMENTS. The Company has filed
with the Securities and Exchange Commission (the "SEC"), and has heretofore made
available to Parent true and complete copies of, all forms, reports, schedules,
statements and other documents required to be filed by it and its Subsidiaries
since April 11, 1996 under the Exchange Act and the Securities Act of 1933, as
amended (the "SECURITIES ACT") (as such documents have been amended since the
time of their filing, collectively, the "COMPANY SEC DOCUMENTS"). As of their
respective dates or, if amended, as of the date of the last such amendment, the
Company SEC Documents, including, without limitation, any financial statements
or schedules included therein (the "COMPANY FINANCIAL STATEMENTS") (a) did not
contain any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading
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and (b) complied in all material respects with the applicable requirements of
the Exchange Act or the Securities Act, as the case may be, and the applicable
rules and regulations of the SEC thereunder. The Company SEC Documents include
all the documents that the Company was required to file with the SEC since
April 11, 1996. The Company Financial Statements have been prepared from, and
are in accordance with, the books and records of the Company and its
consolidated Subsidiaries, comply in all material respects with applicable
accounting requirements and with the published rules and regulations of the SEC
with respect thereto, have been prepared in accordance with United States
generally accepted accounting principles ("GAAP") applied on a consistent basis
during the periods involved (except as may be indicated in the notes thereto or,
in the case of the unaudited statements, as permitted by Form 10-Q of the SEC)
and present fairly the consolidated financial position and the consolidated
results of operations and cash flows of the Company and its consolidated
Subsidiaries as at the dates thereof or for the periods presented therein. The
Company has not received notice (written or oral) from and, to its knowledge, is
not under any review by any Governmental Entity in connection with its revenue
recognition policies and procedures. Without limiting the foregoing, for any
period after December 31, 1998, the Company has complied in all material
respects with Statement of Position 97-2 (Software Revenue Recognition), as
amended by Statement of Position 9804.
Section 3.6 ABSENCE OF CERTAIN CHANGES. Except as and to the extent
disclosed in the Company SEC Documents filed prior to the date of this
Agreement, since September 30, 1999, the Company and its Subsidiaries have
conducted their respective businesses and operations consistent with past
practice only in the ordinary and usual course. From September 30, 1999 through
the date of this Agreement, there has not occurred (i) any events, changes or
effects (including the incurrence of any liabilities of any nature, whether or
not accrued, contingent or otherwise) having or, which would be reasonably
likely to have, individually or in the aggregate, a material adverse effect on
the Company and its Subsidiaries; (ii) any declaration, setting aside or payment
of any dividend or other distribution (whether in cash, stock or property) with
respect to the equity interests of the Company or of any of its Subsidiaries; or
(iii) any change by the Company or any of its Subsidiaries in accounting
principles or methods, except insofar as may be required by a change in GAAP.
Since September 30, 1999 neither the Company nor any of its Subsidiaries has
taken any of the actions prohibited by Section 5.1 hereof.
Section 3.7 NO UNDISCLOSED LIABILITIES. Except as set forth in
Section 3.7 of the Disclosure Schedule, since September 30, 1999, neither the
Company nor any of its Subsidiaries has incurred any liabilities or obligations
of any nature, whether or not accrued, contingent or otherwise, that (a) have,
or would be reasonably likely to have, a material adverse effect on the Company
and its Subsidiaries or (b) (i) would be required to be reflected or reserved
against on a consolidated balance sheet of the Company and its Subsidiaries
(including the notes thereto) prepared in accordance with GAAP as applied in
preparing the consolidated balance sheet of the Company and its Subsidiaries as
of September 30, 1999 and (ii) were outside the ordinary course of business and
not immaterial in amount. Section 3.7 of the Disclosure Schedule sets forth the
amount of principal and unpaid interest outstanding under each instrument
evidencing indebtedness of the Company and its Subsidiaries which will
accelerate or become due or result in a right of redemption or repurchase on the
part of the holder of such indebtedness (with or without due notice or lapse of
time) as a result of this Agreement, any of the Ancillary Agreements, the Merger
or the other transactions contemplated hereby or thereby.
Section 3.8 INFORMATION IN PROXY STATEMENT/PROSPECTUS. The Proxy
Statement/Prospectus (as defined in Section 5.10 hereof) (or any amendment
thereof or supplement thereto) will not, at the date mailed to Company
stockholders or at the times of the Special Meetings (as defined in
Section 5.9(b) hereof), contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary in order
to make the statements therein, in light of the circumstances under which they
are made, not misleading, except that no representation is made by the Company
with respect to statements made therein based on information supplied by Parent
or Sub specifically for inclusion in the Proxy Statement/Prospectus. None of the
information supplied by the Company specifically for inclusion in the Parent
Registration Statement (as defined in Section 5.10 hereof) will, at the date it
becomes effective
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and at the time of the Special Meetings, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading. The Proxy
Statement/Prospectus specifically, as to information supplied by the Company for
inclusion therein, will comply in all material respects with the provisions of
the Exchange Act and the rules and regulations thereunder.
Section 3.9 EMPLOYEE BENEFIT MATTERS.
(a) All employee benefit plans and other incentive, compensation or
benefit agreements or arrangements covering any current or former employee
or director of, or consultant to, the Company or any Subsidiary are listed
in Section 3.9 of the Disclosure Schedule (the "COMPANY BENEFIT PLANS").
True and complete copies of the Company Benefit Plans, trusts and reports
and summaries required under the Code or the Employee Retirement Income
Security Act of 1974, as amended ("ERISA"), have been provided to the
Purchaser. Except as set forth in Section 4.11(a) of the Disclosure
Schedule, each Company Benefit Plan has been administered and maintained in
all material respects in compliance with its terms and with all applicable
laws, including, but not limited to, ERISA and the Code. Each Company
Benefit Plan intended to be qualified under Section 401(a) of the Code has
been determined by the Internal Revenue Service (the "IRS") to be so
qualified and to the knowledge of the Company no event has occurred that
could reasonably be expected to adversely affect the qualified status of
such Company Benefit Plan. Neither the Company nor any of its Subsidiaries
has incurred (and to the knowledge of the Company no transaction has
occurred which could reasonably be expected to give rise to) any liability
or penalty under Section 4975 of the Code or Section 502(i) of ERISA with
respect to any Company Benefit Plan. To the knowledge of the Company, there
are no pending, nor has the Company or any of its Subsidiaries received
notice of any threatened, claims against or otherwise involving any of the
Company Benefit Plans. No Company Benefit Plan is under audit or
investigation by the IRS, the Department of Labor or the Pension Benefit
Guaranty Corporation, and to the knowledge of the Company, no such audit or
investigation is pending or threatened. All material contributions and other
payments required to be made as of the date of this Agreement to, or
pursuant to, the Company Benefit Plans have been made or accrued for in the
Company Financial Statements. Neither the Company nor any entity under
"common control" with the Company within the meaning of Section 4001 of
ERISA has at any time contributed to, or been required to contribute to, any
"pension plan" (as defined in Section 3(2) of ERISA) that is subject to
Title IV of ERISA or Section 412 of the Code, including, without limitation,
any "multi-employer plan" (as defined in Sections 3(37) and 4001(a)(3) of
ERISA), and neither the Company nor any such entity has at any time incurred
or could reasonably expect to incur any liability under Title IV of ERISA.
(b) The consummation of the Transactions will not (either alone or upon
the occurrence of any additional or subsequent events) (i) constitute an
event under any Company Benefit Plan, employment or severance agreement,
trust, loan or other compensation or benefits agreement or arrangement that
will or may result in any payment (whether of severance pay or otherwise),
acceleration, forgiveness of indebtedness, vesting, distribution, increase
in benefits or obligation to fund benefits with respect to any current or
former employee, officer, director, agent or consultant of the Company or
any Subsidiary, or (ii) result in the triggering or imposition of any
restrictions or limitations on the right of the Company or the Purchaser to
amend or terminate any Company Benefit Plan and receive the full amount of
any excess assets remaining or resulting from such amendment or termination,
subject to applicable taxes. No payment or benefit which will or may be made
by the Company, any of its Subsidiaries, the Purchaser or any of their
respective affiliates with r
