Company
Option
shall mean options or other equity compensation awards to purchase or
receive shares of Common Stock issued or issuable by the Company pursuant to the Company
Stock Plans.
Company
Preferred Stock
shall mean the Companys preferred stock, par value $0.01
par value per share.
Confidentiality
Agreement
shall mean the Confidentiality and Standstill Agreement dated May 28,
2009 between the Company and Parent.
Consent
shall mean any approval, consent, ratification, permission, waiver or authorization
(including any Governmental Authorization).
Contemplated
Transactions
shall mean the Merger and the other transactions and actions
contemplated by this Agreement and the transactions and actions contemplated by the Voting
Agreements.
Contract
shall mean any written, oral or other agreement, contract, subcontract, lease,
understanding, arrangement, instrument, note, option, warranty, purchase order, license,
sublicense, insurance policy, benefit plan or legally binding commitment or undertaking of
any nature.
DGCL
shall mean the Delaware General Corporation Law.
Disclosure
Schedule
shall mean the disclosure schedule that has been prepared by the
Company in accordance with the requirements of Section 9.6 of the Agreement and that has
been delivered by the Company to Parent on the date of the Agreement.
DOL
shall mean the United States Department of Labor.
Encumbrance
shall mean any lien, pledge, hypothecation, charge, mortgage, security interest,
encumbrance, claim, infringement, interference, option, right of first refusal, preemptive
right, community property interest or restriction of any nature (including any restriction
on the voting of any security, any restriction on the transfer of any security or other
asset, any restriction on the receipt of any income derived from any asset, any
restriction on the use of any asset and any restriction on the possession, exercise or
transfer of any other attribute of ownership of any asset).
Entity
shall mean any corporation (including any non-profit corporation), general partnership,
limited partnership, limited liability partnership, joint venture, estate, trust, company
(including any company limited by shares, limited liability company or joint stock
company), firm, society or other enterprise, association, organization or entity.
ERISA
shall mean the Employee Retirement Income Security Act of 1974, as amended.
Exchange
Act
shall mean the Securities Exchange Act of 1934, as amended.
Filed
Company SEC Documents
shall mean all Company SEC Documents filed by the Company
on or after June 28, 2008, and publicly available prior to the date of this Agreement.
Filed
Parent SEC Documents
shall mean all Parent SEC Documents filed by the Company on
or after January 1, 2008, and publicly available prior to the date of this Agreement.
FMLA
shall mean the Family Medical Leave Act of 1993, as amended.
Foreign
Plan
shall mean: (a) any plan, program, policy, practice, Contract or other
arrangement mandated by a Governmental Body outside the United States to which any of the
Acquired Corporations is required to contribute or under which any of the Acquired
Corporations has or may have any liability; (b) any Company Benefit Plan that is subject
to any of the Legal Requirements of any jurisdiction outside the United States; and (c)
any Company Benefit Plan that covers or has covered any Company Associate whose services
are or have been performed primarily outside of the United States.
Form
F-4 Registration Statement
shall mean the registration statement on Form F-4 to be
filed with the SEC by Parent in connection with issuance of Parent Common Stock in the
Merger, as said registration statement may be amended prior to the time it is declared
effective by the SEC.
A - 63
GAAP
shall mean generally accepted accounting principles in the United States.
Governmental
Authorization
shall mean any: (a) permit, license, exemption, consent,
certificate, franchise, permission, variance, clearance, registration, qualification,
authorization or other approval issued, granted, given or otherwise made available by or
under the authority of any Governmental Body or pursuant to any Legal Requirement; or (b)
right under any Contract with any Governmental Body.
Governmental
Body
shall mean any: (a) nation, state, commonwealth, province, territory,
county, municipality, district or other jurisdiction of any nature; (b) federal, state,
local, municipal, foreign or other government; (c) governmental or quasi-governmental
authority of any nature (including any governmental division, department, agency,
commission, instrumentality, official, ministry, fund, foundation, center, organization,
unit, body or Entity and any court or other tribunal); or (d) self-regulatory organization
(including the Nasdaq).
HIPAA
shall mean the Health Insurance Portability and Accountability Act of 1996, as amended.
IRS
shall mean the United States Internal Revenue Service.
Knowledge,
best of the knowledge, known
or words of similar effect, means
the following: with respect to the Company, the actual knowledge of a particular fact or
other matter after reasonably due inquiry by any of the individuals set forth in
Part
10.1 of the Disclosure Schedule
and, with respect to Parent or Merger Sub, the actual
knowledge of a particular fact or other matter after reasonable due inquiry by any of the
individuals set forth in
Part 10.1 of the Parent Disclosure Schedule
.
Legal
Proceeding
shall mean any action, suit, litigation, arbitration, proceeding
(including any civil, criminal, administrative, investigative or appellate proceeding),
hearing, inquiry, audit, examination or investigation commenced, brought, conducted or
heard by or before, or otherwise involving, any court or other Governmental Body or any
arbitrator or arbitration panel.
Legal
Requirement
shall mean any federal, state, local, municipal, foreign or other
law, statute, constitution, principle of common law, resolution, ordinance, code, edict,
decree, rule, regulation, ruling or requirement issued, enacted, adopted, promulgated,
implemented or otherwise put into effect by or under the authority of any Governmental
Body (or under the authority of the Nasdaq).
Nasdaq
shall refer to, individually or collectively, The NASDAQ Stock Market, The NASDAQ Global
Market, The NASDAQ Global Select Market and The NASDAQ Capital Market (or any successor
entities thereto) and any other exchange now or later existing under the control of The
NASDAQ OMX Group, Inc.
Other
SEC Filing
shall mean any filings required to be made with the SEC under the
Exchange Act in connection with the Contemplated Transactions, other than the
Prospectus/Proxy Statement and the Form F-4 Registration Statement.
Parent
Affiliate
shall mean any Person under common control with any of the Parent
Entities within the meaning of Sections 414(b), (c), (m) and (o) of the Code, and the
regulations issued thereunder.
Parent
Contract
shall mean any Contract: (a) to which any of the Parent Entities is a
party; (b) by which any of the Parent Entities or any Parent IP or any other asset of any
of the Parent Entities is or may become bound or under which any of the Parent Entities
has, or may become subject to, any obligation; or (c) under which any of the Parent
Entities has or may acquire any right or interest.
Parent
Disclosure Schedule
shall mean the disclosure schedule that has been prepared by
Parent in accordance with the requirements of Section 9.6 of the Agreement and that has
been delivered by Parent to the Company on the date of the Agreement.
Parent
IP Contract
shall mean any Parent Contract under which Parent or its
Subsidiaries has any right, title or interest in, under or to any material Parent IP
Rights, other than nonexclusive licenses that are available to the public generally.
A - 64
Parent
Material Adverse Effect
shall mean any effect, change, event or circumstance
that, considered together with all other effects, changes, events or circumstances, is or
would reasonably be expected to be or to become materially adverse to, or has or would
reasonably be expected to have or result in a material adverse effect on: (a) the
business, financial condition, or operations of the Parent Entities taken as a whole; or
(b) the ability of Parent to consummate the Merger or any of the other Contemplated
Transactions;
provided
,
however
, that a
Parent Material Adverse
Effect
shall not be deemed to mean or include any such effect,
change, event or circumstance to the extent arising as a result of or reasonably
attributed to: (i) changes in general economic conditions in general in any country or
region in which the Acquired Corporations conduct a material portion of their business
after the date of this Agreement, except to the extent such changes impact the Acquired
Corporations in a disproportionate manners compared to other companies operating in any
such country or region; (ii) changes in GAAP or the rules or policies of the Public
Company Accounting Oversight Board; (iii) any act or omission by the Acquired Corporations
taken with the prior written consent of Parent in contemplation of the Merger; (iv) any
costs or expenses reasonably incurred or accrued in connection with the Merger (and not
otherwise in breach of this Agreement); (v) in and of itself, a decline in the stock price
of the Company Common Stock on the Nasdaq or the delisting of the Company Common Stock
from the Nasdaq,
provided
, that the exception in this clause (v) shall not prevent
or otherwise affect a determination that the underlying cause of any such decline or
delisting is a Parent Material Adverse Effect; (vi) conditions generally affecting the
industries in which the Parent Entities participate that do not have a materially
disproportionate impact on the Parent Entities, taken as a whole, relative to
Parents peers; (vii) legislative or regulatory changes in the industries in which
the Parent Entities participate following the announcement of the Merger; (viii) the
announcement (including the announcement of the identity of Parent and Merge Sub),
pendency, execution, performance or consummation of this Agreement or any of the
Contemplated Transactions; (ix) ) any Legal Proceedings disclosed in the Parent SEC
Documents; (x) acts of God; or (xi) any attack on or by, outbreak or escalation of
hostilities or acts of terrorism involving, Israel, any declaration of war by Israel or
any other national or international calamity or emergency, except to the extent it has a
materially disproportionate impact on the Parent Entities, taken as a whole, relative to
Parents peers operating in any geographic region in which the Parent Entities
operate.
Parent
Shares
shall mean the Ordinary Shares, NIS 0.01 par value per share, of Parent.
Parent Unaudited
Interim Balance Sheet
shall mean the unaudited consolidated balance sheet of
Parent and its consolidated subsidiaries including all notes thereto as of June 30, 2009,
included in the Companys Report on Form 6-K for the fiscal quarter ended June 30,
2009, as filed with the SEC prior to the date of this Agreement.
Person
shall mean any individual, Entity or Governmental Body.
Prospectus/Proxy Statement
shall mean the joint prospectus/proxy statement to be sent to the Companys
stockholders in connection with the Company Stockholders Meeting.
Representatives
shall mean directors, officers, other employees, agents, attorneys, accountants, advisors
and representatives.
Rights
Plan
means that certain Rights Agreement, dated as of April 26, 2007, between
the Company and American Stock Transfer & Trust Company, as Rights Agent.
Sarbanes-Oxley
Act
shall mean the Sarbanes-Oxley Act of 2002, as it may be amended from time to
time.
SEC
shall mean the United States Securities and Exchange Commission.
Securities
Act
shall mean the Securities Act of 1933, as amended.
Subsidiary
shall mean an Entity of another Person if such Person directly or indirectly owns or
purports to own, beneficially or of record, (a) an amount of voting securities or other
interests in such Entity that is sufficient to enable such Person to elect at least a
majority of the members of such Entitys board of directors or other governing body,
or (b) at least fifty percent (50%) of the outstanding equity, voting, beneficial or
financial interests in such Entity.
A - 65
Superior
Offer
shall mean an unsolicited bona fide written offer by a third party to
purchase, in exchange for consideration consisting exclusively of cash and/or publicly
traded equity securities, all of the outstanding shares of Company Common Stock, that: (a)
was not obtained or made in breach of this Agreement or the Confidentiality Agreement; and
(b) is on terms and conditions that the Company Board determines, in its reasonable, good
faith judgment, after consultation with the Companys outside legal counsel and the
Company Financial Advisor, to be: (i) more favorable, from a financial point of view, to
the Companys stockholders than the terms of the Merger (or any counteroffer made by
Parent) and (ii) likely to be consummated.
Tax
shall mean any federal, state, local, foreign or other tax (including any income tax,
franchise tax, capital gains tax, gross receipts tax, value-added tax, surtax, estimated
tax, unemployment tax, national health insurance tax, excise tax, ad valorem tax, transfer
tax, stamp tax, sales tax, use tax, property tax, business tax, withholding tax or payroll
tax), levy, assessment, tariff, duty (including any customs duty), deficiency or fee, and
any similar charge or amount (including any fine, penalty, addition to tax or interest),
imposed, assessed or collected by or under the authority of any Governmental Body.
Tax
Return
shall mean any return (including any information return), report,
statement, declaration, estimate, schedule, notice, notification, form, election,
certificate or other document or information, and any amendment or supplement to any of
the foregoing, filed with or submitted to, or required to be filed with or submitted to,
any Governmental Body in connection with the determination, assessment, collection or
payment of any Tax or in connection with the administration, implementation or enforcement
of or compliance with any Legal Requirement relating to any Tax.
Treasury
Regulations
means the regulations promulgated by the U.S. Department of Treasury
under the Code, as amended.
Triggering
Event
shall be deemed to have occurred if: (a) the Company Board shall have
failed to make the Company Board Recommendation in accordance with Section 5.2(b); (b) the
Company shall have failed to include in the Prospectus/Proxy Statement the Company Board
Recommendation; (c) the Company Board fails to reaffirm publicly the Company Board
Recommendation, within ten (10) Business Days after Parent requests in writing that such
recommendation be reaffirmed publicly; (d) an Adverse Recommendation Change shall have
occurred; (e) the Company shall have executed any letter of intent, memorandum of
understanding or similar document or any Contract relating to any Acquisition Proposal
(whether or not a Superior Proposal); or (f) a tender or exchange offer relating to
securities of the Company shall have been commenced and the Company shall not have sent to
its security holders, within ten (10) Business Days after the commencement of such tender
or exchange offer, a statement disclosing that the Company recommends rejection of such
tender or exchange offer.
Unaudited
Interim Balance Sheet
shall mean the unaudited consolidated balance sheet of the
Company and its consolidated subsidiaries including all notes thereto as of March 28,
2009, included in the Companys Report on Form 10-Q for the fiscal quarter ended
March 28, 2009, as filed with the SEC prior to the date of this Agreement.
A - 66
EXHIBIT B
Form of Voting Agreement
(intentionally omitted, see Annex B)
A - 67
EXHIBIT C
FORM OF CERTIFICATE OF
INCORPORATION
OF THE
SURVIVING CORPORATION
FIRST:
The name of this corporation is [__________]
SECOND:
The registered office of the corporation in the State of Delaware is 1209 Orange Street,
Americas Corporate Address, Wilmington, Delaware 19801. The name of its registered
agent at such address is Corporation Service Company.
THIRD:
The purpose of this corporation is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of Delaware.
FOURTH:
The total number of shares of stock which this corporation is authorized to issue is
[______] shares of common stock with $0.01 par value. All such Shares shall be designated
Common Stock.
FIFTH:
The name and mailing address of the incorporator is [_____________].
SIXTH:
Provisions for the management of the business and for the conduct of the affairs of this
corporation and provisions creating, defining, limiting and regulating the powers of this
corporation, the directors and the stockholders are as follows: