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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): September 3, 2015
MILLENNIAL MEDIA, INC.
(Exact Name of Registrant as Specified in Its Charter)
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Delaware
(State or Other Jurisdiction
of Incorporation) |
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001-35478
(Commission
File Number) |
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20-5087192
(IRS Employer
Identification No.) |
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2400 Boston Street, Suite 300
Baltimore, Maryland
(Address of Principal Executive Offices) |
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21224
(Zip Code) |
(410) 522-8705
(Registrant's Telephone Number, Including Area Code)
Not Applicable
(Former Name or Former Address, if Changed Since Last Report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following
provisions:
- o
- Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
- o
- Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
- o
- Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act
(17 CFR 240.14d-2(b))
- o
- Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act
(17 CFR 240.13e-4(c))
Item 1.01. Entry into a Material Definitive Agreement.
On September 3, 2015, Millennial Media, Inc., a Delaware corporation ("Millennial
Media" or the "Company"), entered into an Agreement and Plan of Merger (the "Merger
Agreement") with AOL Inc., a Delaware corporation ("AOL"), and Mars Acquisition Sub, Inc., a Delaware corporation
and a wholly owned subsidiary of AOL ("Acquisition Sub"), pursuant to which Acquisition Sub will, upon the terms and subject to the conditions set forth
therein, conduct a tender offer for all of the Company's common stock and then merge with and into the Company.
Pursuant
to the Merger Agreement, upon the terms and subject to the conditions set forth therein, Acquisition Sub will commence a tender offer (the
"Offer") no later than September 18, 2015 to acquire all outstanding shares of common stock of the Company at a purchase price of $1.75 per share
(the "Offer Price"), net to the seller in cash, without interest, less any required withholding taxes. The Merger Agreement further provides that upon
the terms and subject to the conditions set forth therein, following completion of the Offer, Acquisition Sub will merge with and into the Company, with the Company continuing as the surviving
corporation and as a wholly owned subsidiary of AOL (the "Merger"). The Merger will be governed by Section 251(h) of the General Corporation Law
of the State of Delaware, with no stockholder vote required to consummate the Merger. In the Merger, each outstanding share of Company common stock (other than shares of Company common stock held by
the Company, AOL or Acquisition Sub or held by stockholders who are entitled to demand, and who properly demand, appraisal rights under Delaware law), will be converted into the right to receive cash
in an amount equal to the Offer Price, subject to any required withholding of taxes and without interest.
The
Offer is subject to customary conditions, including, among other things, (i) the absence of a termination of the Merger Agreement in accordance with its terms,
(ii) that the number of shares of Company common stock validly tendered in accordance with the terms of the Offer and not validly withdrawn, together with any shares of Company common stock
then owned by AOL or its subsidiaries, shall equal at least a majority of the outstanding shares of Company common stock on a fully diluted basis, (iii) that any applicable waiting period under
the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder, shall have expired or otherwise been terminated and (iv) that no governmental
authority shall have enacted any law or order which makes the Offer or the Merger illegal or otherwise prohibits the consummation of the Offer or the Merger. The Offer also is subject to other
customary conditions for a transaction of this nature.
The
Merger is subject to the following closing conditions: (i) Acquisition Sub having accepted for payment all shares of Company common stock validly tendered and not withdrawn in
the Offer and (ii) no governmental authority having enacted any law or order which makes the Merger illegal or otherwise prohibits the consummation of the Merger.
The
board of directors of the Company has unanimously (i) determined that the Merger Agreement and the transactions contemplated by the Merger Agreement are fair to and in the
best interests of the Company and its stockholders, (ii) approved and declared advisable the Merger Agreement and the transactions contemplated thereby, including the Offer and the Merger, in
accordance with the requirements of Delaware law, and (iii) resolved to recommend that the stockholders of the Company accept the Offer and tender their shares of Company common stock to
Acquisition Sub in the Offer. The board of directors of AOL has also approved the Offer and the Merger.
The
Merger Agreement contains representations, warranties and covenants of the parties customary for a transaction of this type, including, among other things, a covenant of the Company
not to solicit alternative transactions or to provide information or enter into discussions in connection with alternative transactions, subject to certain exceptions to allow the Company's board of
directors to exercise its fiduciary duties.
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The
Merger Agreement may be terminated under certain circumstances, including in specified circumstances in connection with superior proposals. Upon the termination of the Merger
Agreement, under specified circumstances, the Company will be required to pay AOL a termination fee of approximately $10,257,222 million, or under other specified circumstances, an expense
reimbursement of approximately $2,735,259 million.
The
foregoing summary of the Merger Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and qualified in its entirety by, the full text
of the Merger Agreement, a copy of which is attached as Exhibit 2.1 to this report and is incorporated herein by reference.
The
Merger Agreement and the above description have been included to provide investors and security holders with information regarding the terms of the Merger Agreement. They are not
intended to provide any other factual information about the Company, AOL, Acquisition Sub or their respective subsidiaries or affiliates or stockholders. The representations, warranties and covenants
contained in the Merger Agreement were made only for purposes of the Merger Agreement and as of specific dates; were solely for the benefit of the parties to the Merger Agreement; and may be subject
to limitations agreed upon by the parties, including being qualified by confidential disclosures made by each contracting party to the other for the purposes of allocating contractual risk between
them that differ from those applicable to investors. Investors should not rely on the representations, warranties and covenants or any description thereof as characterizations of the actual state of
facts or condition of the Company, AOL, Acquisition Sub or any of their respective subsidiaries, affiliates, businesses or stockholders. Moreover, information concerning the subject matter of the
representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Company or AOL.
Accordingly, investors should read the representations and warranties in the Merger Agreement not in isolation but only in conjunction with the other information about the Company or AOL and their
respective subsidiaries that the respective companies or their affiliates include in reports, statements and other filings they may make with the U.S. Securities and Exchange Commission ("SEC").
Item 7.01. Regulation FD Disclosure.
On September 3, 2015, AOL issued a press release, which Millennial Media posted on its web site, announcing the execution of the
Merger Agreement described above. A copy of the press release is attached as Exhibit 99.1 to this report and is incorporated herein by reference.
The tender offer for the outstanding common stock of the Company referred to in this document has not yet commenced. This document is
not an offer to purchase or a solicitation of an offer to sell shares of the Company's common stock. The solicitation and the offer to purchase shares of the Company's common stock will only be made
pursuant to an offer to purchase and related materials that AOL and Acquisition Sub intend to file with the SEC. At the time the
tender offer is commenced, AOL and Acquisition Sub will file a Tender Offer Statement on Schedule TO with the SEC, and soon thereafter the Company will file a Solicitation /
Recommendation Statement on Schedule 14D-9 with respect to the tender offer. STOCKHOLDERS OF THE COMPANY ARE ADVISED TO READ THE SCHEDULE TO (INCLUDING AN OFFER TO PURCHASE, A RELATED LETTER OF
TRANSMITTAL AND OTHER OFFER DOCUMENTS) AND THE SCHEDULE 14D-9, AS EACH MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME, AND ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC WHEN THEY BECOME AVAILABLE,
BEFORE MAKING ANY DECISION WITH RESPECT TO THE TENDER OFFER BECAUSE THESE DOCUMENTS WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE PARTIES THERETO.
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The
Offer to Purchase, the related Letter of Transmittal and certain other offer documents, as well as the Solicitation / Recommendation Statement, will be made available to all holders of
shares of the Company common stock at no expense to them. The tender offer materials and the Solicitation / Recommendation Statement will be made available for free at the SEC's website at
www.sec.gov. Holders of shares of Company common stock may also obtain a copy of the Solicitation / Recommendation Statement and other documents (when available) that the Company files with the
SEC for free from the Company at www.millennialmedia.com or by directing a request to the Company at IR@millennialmedia.com.
This communication may contain "forward-looking statements" within the meaning of Section 27A of the Securities Act of 1933, as
amended, and Section 21E of the Securities Exchange Act of 1934, as amended. Words such as "anticipates," "estimates," "expects," "projects," "forecasts," "intends," "plans," "will," "believes"
and words and terms of similar substance used in connection with any discussion of the proposed transaction identify forward-looking statements. These forward-looking statements are based on
management's current expectations and beliefs about future events. As with any projection or forecast, they are inherently susceptible to uncertainty and changes in circumstances. Except as required
by law, we are under no obligation to, and expressly disclaim any obligation to, update or alter any forward-looking statements whether as a result of such changes, new information, subsequent events
or otherwise. Various factors could adversely affect our operations, business or financial results in the future and cause our actual results to differ materially from those contained in the
forward-looking statements, including the risks and uncertainties discussed in the Company's filings with the SEC, in particular the factors discussed in detail in the "Risk Factors" sections
contained in our Annual Report on Form 10-K for the year ended December 31, 2014 and our Quarterly Report on Form 10-Q for the quarter ended June 30, 2015, the tender offer
documents to be filed by AOL and Acquisition Sub, and the Solicitation/Recommendation Statement to be filed by the Company, as well as, among other things: (1) the ability to obtain requisite
regulatory approvals
required to complete the proposed transaction with AOL, (2) the satisfaction of the conditions to the consummation of the proposed transaction, (3) the timing of the completion of the
proposed transaction, (4) the potential impact of the announcement or consummation of the proposed transaction on our relationships, including with employees, suppliers and customers, and
(5) the risk that stockholder litigation in connection with the proposed transaction may result in significant costs of defense, indemnification and liability.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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Exhibit
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of September 3, 2015, by and among AOL Inc., Mars Acquisition Sub, Inc. and Millennial Media, Inc. (Pursuant to Item 601(b)(2) of Regulation S-K,
Millennial Media hereby agrees to supplementally furnish to the SEC upon request any omitted schedule or exhibit to the Agreement and Plan of Merger.) |
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99.1 |
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Press Release dated September 3, 2015 |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned thereunto duly authorized.
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MILLENNIAL MEDIA, INC. |
Date: September 3, 2015 |
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By: |
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/s/ HO SHIN
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Name: |
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Ho Shin |
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Title: |
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General Counsel and Corporate Secretary |
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EXHIBIT INDEX
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Exhibit
Number |
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Description |
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2.1 |
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Agreement and Plan of Merger, dated as of September 3, 2015, by and among AOL Inc., Mars Acquisition Sub, Inc. and Millennial Media, Inc. (Pursuant to Item 601(b)(2) of Regulation S-K,
Millennial Media hereby agrees to supplementally furnish to the SEC upon request any omitted schedule or exhibit to the Agreement and Plan of Merger.) |
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99.1 |
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Press Release dated September 3, 2015 |
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TABLE OF CONTENTS
Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
AOL INC.,
MARS ACQUISITION SUB, INC.
and
MILLENNIAL MEDIA, INC.
dated as of
September 3, 2015
The Agreement and Plan of Merger (the "Agreement") contains representations, warranties and covenants that were made only for purposes of the Agreement and as of
specific dates; were solely for the benefit of the parties to the Agreement; may be subject to limitations agreed upon by the parties, including being qualified by confidential disclosures made for
the purposes of allocating contractual risk between the parties to the Agreement instead of establishing these matters as facts; and may be subject to standards of materiality applicable to the
contracting parties that differ from those applicable to investors. Millennial Media's stockholders and other investors are not third-party beneficiaries under the Agreement and should not rely on the
representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or condition of Millennial Media, AOL, or any of their respective subsidiaries or
affiliates. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Agreement, which subsequent information may or may not
be fully reflected in public disclosures by Millennial Media and AOL.
TABLE OF CONTENTS
i
ii
iii
THIS
AGREEMENT AND PLAN OF MERGER, dated as of September 3, 2015 (this "Agreement"), is made by and among AOL Inc., a
Delaware corporation ("Parent"), Mars Acquisition Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Acquisition Sub"), and Millennial Media, Inc., a Delaware corporation (the "Company").
WITNESSETH
WHEREAS, the respective boards of directors of Parent and Acquisition Sub have each unanimously (i) determined that it is in the
best interests of their respective stockholders for Parent to acquire the Company on the terms and subject to the conditions set forth herein, (ii) approved and declared advisable the merger of
Acquisition Sub with and into the Company (the "Merger") upon the terms and subject to the conditions set forth in this Agreement and in accordance with
the General Corporation Law of the State of Delaware (the "DGCL") and (iii) adopted this Agreement and approved the execution, delivery and
performance of this Agreement by Parent and Acquisition Sub and the consummation of the transactions contemplated hereby, including the Offer and the Merger;
WHEREAS,
the board of directors of the Company (the "Company Board") has unanimously (i) determined that it is fair and advisable
for Parent to acquire the Company on the terms and subject to the conditions set forth herein, (ii) approved and adopted this Agreement, including the Offer and the Merger, in accordance with
the DGCL, and (iii) determined to recommend that the stockholders of the Company accept the Offer and tender their shares of Common Stock into the Offer, in each case on the terms and subject
to the conditions of this Agreement;
WHEREAS,
pursuant to this Agreement, Acquisition Sub has agreed to commence a tender offer (the "Offer") to purchase any (subject to the
Minimum Condition) and all of the outstanding common stock (other than shares canceled or converted pursuant to Section 3.1(a)), par value $0.001
per share, of the Company (the "Common Stock"), at a price per share of Common Stock of $1.75 (such amount or any
higher amount per share of Common Stock that may be paid pursuant to an amended Offer, the "Offer Price"), payable net to the seller in cash, without
interest;
WHEREAS,
following consummation of the Offer, on the terms and subject to the conditions set forth in this Agreement, Acquisition Sub will be merged with and into the Company, with the
Company surviving the Merger as a wholly owned subsidiary of Parent in accordance with the DGCL, and each share of Common Stock outstanding that is not tendered and accepted pursuant to the Offer
(other than shares canceled or converted pursuant to Section 3.1(a) hereof and Dissenting Shares) will thereupon be canceled and converted into
the right to receive cash in an amount equal to the Offer Price, in each case, on the terms and conditions set forth herein; and
WHEREAS,
the Merger shall be governed by and effected pursuant to Section 251(h) of the DGCL.
NOW,
THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants and subject to the conditions herein contained, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Defined terms used in this Agreement have the meanings ascribed to them by
definition in this Agreement or in Appendix A.
ARTICLE II
THE OFFER AND THE MERGER
Section 2.1 The Offer.
(a) Provided
that this Agreement shall not have been terminated in accordance with Article VIII, as promptly as
practicable (and in any event on or before September 18, 2015) after the date hereof, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) commence, within the meaning of
Rule 14d-2 under the Exchange Act, the Offer to purchase all the outstanding Common Stock at a price per share equal to the Offer Price. The consummation of the Offer, and the obligation of
Acquisition Sub to accept for payment and pay for any shares of Common Stock tendered pursuant to the Offer, shall be subject only to: (i) there being validly tendered in the Offer and not
properly withdrawn prior to the Expiration Date that number of shares of Common Stock (excluding shares of Common Stock tendered pursuant to guaranteed delivery procedures but not yet delivered)
which, together with the number of shares of Common Stock (if any) then owned by Parent or its subsidiaries, represents a majority of the shares of Common Stock then outstanding (determined on a fully
diluted basis as described below) (collectively, the "Minimum Condition"); (ii) this Agreement not having been terminated in accordance with its
terms (the "Termination Condition"); and (iii) the satisfaction, or waiver by Parent or Acquisition Sub, of the other conditions and requirements
set forth in Annex I (together with the Minimum Condition and the Termination Condition, the "Offer
Conditions"). For purposes of determining whether the Minimum Condition has been satisfied, the number of shares of Common Stock outstanding on a fully diluted basis shall be
the number of shares of Common Stock issued and outstanding plus the number of shares of Common Stock which the Company would be required to issue
pursuant to any then outstanding warrants, options, benefit plans or obligations or securities convertible or exchangeable into shares of Common Stock or otherwise, but only to the
extent so exercisable, convertible or exchangeable prior to consummation of the Merger or exercisable, convertible or exchangeable as a result of the consummation of the Offer or the Merger.
(b) Subject
to the satisfaction of the Minimum Condition and the Termination Condition and the satisfaction, or waiver by Parent or Acquisition Sub, of the other Offer
Conditions, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) accept for payment and pay for all shares of Common Stock validly tendered and not properly withdrawn pursuant to the
Offer on or promptly after the applicable Expiration Date. Subject to Section 3.7, the Offer Price payable in respect of each share of Common
Stock validly tendered and not properly withdrawn pursuant to the Offer shall be paid net to the seller in cash, without interest.
(c) The
Offer shall be made by means of an offer to purchase (the "Offer to Purchase") that describes the terms and
conditions of the Offer in accordance with this Agreement, including the Offer Conditions. Unless previously approved by the Company in writing, Parent and Acquisition Sub shall not:
(i) decrease the Offer Price, (ii) change the form of consideration payable in the Offer, (iii) change the number of shares of Common Stock to be purchased in the Offer,
(iv) amend or waive the Minimum Condition, the Termination Condition or the conditions set forth in clauses (b) or (c)(i) of Annex I, (v) add any condition to the Offer or any term
that is adverse to the holders of Common Stock, (vi) extend the expiration
of the Offer except as required or permitted by this Section 2.1, (vii) provide for a "subsequent offering period" (or any extension
thereof) in accordance with Rule 14d-11 under the Exchange Act or (viii) modify, supplement or amend any other term or condition of the Offer in a manner adverse to the holders of Common
Stock.
(d) Unless
extended in accordance with the terms of this Agreement, the Offer shall expire at 11:59 p.m. (New York City time) on the date that is twenty
(20) Business Days following the
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commencement
of the Offer, as calculated in accordance with Rule 14d-1(g)(3) of the Exchange Act (such time and date, the "Initial Expiration
Date") or if the Initial Expiration Date has been extended in accordance with this Agreement, on the date to which the Offer has been so extended (the Initial Expiration Date,
or such later time and date to which the Initial Expiration Date has been extended in accordance with this Agreement, the "Expiration Date").
(e) If
as of any then scheduled Expiration Date, any Offer Condition has not been satisfied or, to the extent waivable by Parent or Acquisition Sub pursuant to this
Agreement, waived by Parent or
Acquisition Sub, Acquisition Sub shall (and Parent shall cause Acquisition Sub to) extend the Offer for successive periods of up to five (5) Business Days each (or such longer period of up to
twenty (20) Business Days if Parent so desires and the Company consents in writing prior to such extension), the length of each such period to be determined by Parent in its sole discretion in
order to permit the satisfaction of the Offer Conditions; provided, however, that Acquisition Sub shall
not be required to extend the Offer beyond March 3, 2016 (the "Outside Date"), unless at such time Parent would be prohibited from terminating
this Agreement pursuant to Section 8.1(b), and shall not extend the Offer beyond the Outside Date without the Company's consent. In addition,
Acquisition Sub shall extend the Offer for any period or periods required by applicable Law or applicable rules, regulations, interpretations or positions of the SEC or its staff or the NYSE; provided,
however, that Acquisition Sub shall not be required to extend the Offer beyond the Outside
Date, unless at such time Parent would be prohibited from terminating this Agreement pursuant to Section 8.1(b), and shall not extend the Offer
beyond the Outside Date without the Company's consent.
(f) Acquisition
Sub shall not terminate the Offer prior to any scheduled Expiration Date without the prior written consent of the Company, except if this Agreement is
terminated pursuant to Article VIII. If this Agreement is terminated pursuant to Article VIII, Acquisition Sub shall (and Parent shall cause
Acquisition Sub to) promptly terminate the Offer and shall not acquire the shares of
Common Stock pursuant thereto. If the Offer is terminated by Acquisition Sub, or this Agreement is terminated prior to the Acceptance Time, Acquisition Sub shall promptly return, and shall cause any
depositary acting on behalf of Acquisition Sub to return, in accordance with applicable Law, all tendered shares of Common Stock that have not then been purchased in the Offer to the registered
holders thereof.
(g) As
soon as practicable on the date of the commencement of the Offer, Parent and Acquisition Sub shall:
(i) file
with the SEC, in accordance with Rule 14d-3 under the Exchange Act, a Tender Offer Statement on Schedule TO with respect to the Offer (together with
all amendments, supplements and exhibits thereto, the "Schedule TO");
(ii) deliver
a copy of the Schedule TO, including all exhibits thereto, to the Company at its principal executive offices in accordance with Rule 14d-3(a)
promulgated under the Exchange Act;
(iii) give
telephonic notice of the information required by Rule 14d-3 promulgated under the Exchange Act, and mail by means of first class mail a copy of the
Schedule TO, to the NYSE in accordance with Rule 14d-3(a) promulgated under the Exchange Act; and
(iv) cause
the Offer Documents to be disseminated to all holders of shares of Common Stock as and to the extent required by all applicable Laws, including the Exchange Act.
(h) The
Schedule TO shall include as exhibits, the Offer to Purchase, a form of letter of transmittal, a form of summary advertisement, and a form of notice of
guaranteed delivery (the Schedule TO and the documents included therein pursuant to which the Offer shall be made, together with any amendments and supplements thereto, being referred to herein
as the "Offer
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Documents"). Subject to the provisions of Section 6.4, the Company consents to the inclusion of a description of the
Company Recommendation in the Schedule TO and the Offer Documents. Parent and Acquisition Sub, on the one hand, and the Company, on the other hand, agree to promptly correct any information
provided by it for use in the Offer Documents, if and to the extent that such information shall have become false or misleading in any material respect or as otherwise required by applicable Law, and
Parent and Acquisition Sub agree to cause the Offer Documents, as so corrected, to be filed with the SEC and disseminated to holders of shares of Common Stock, in each case as and to the extent
required by all applicable Laws, including the Exchange Act. The Company and its counsel shall be given a reasonable opportunity to review the Schedule TO and the Offer Documents before they
are filed with the SEC, and Parent and Acquisition Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel. In addition,
Parent and Acquisition Sub shall provide the Company and its counsel promptly with copies of any written comments, and shall inform them of any oral comments, that Parent, Acquisition Sub or their
counsel may receive from time to time from the SEC or its staff with respect to the Schedule TO or the Offer Documents promptly after receipt of such comments, and any written or oral responses
thereto. The Company and its counsel shall be given a reasonable opportunity to review any proposed written or oral responses to the Schedule TO and Offer Documents and Parent and Acquisition
Sub shall give due consideration to the reasonable additions, deletions or changes suggested thereto by the Company and its counsel and to participate in any substantive telephonic communications with
the staff of the SEC related thereto.
Section 2.2 Company Actions.
(a) Schedule 14D-9. No later than the date that the Schedule TO is initially filed with the SEC by
Acquisition Sub, the Company shall file with the SEC, in a manner that
complies with Rule 14d-9 under the Exchange Act, a Tender Offer Solicitation/Recommendation Statement on Schedule 14D-9 with respect to the Offer (together with all amendments,
supplements and exhibits thereto, the "Schedule 14D-9") that shall contain the notice of appraisal rights to holders of shares of Common Stock
and, subject to the provisions of Section 6.4, the Company Recommendation. The Company agrees to cause the Schedule 14D-9 to be
disseminated to holders of shares of Common Stock, as and to the extent required by all applicable Laws, including the Exchange Act. The Company, on the one hand, and Parent and Acquisition Sub, on
the other hand, agree to promptly correct any information provided by it for use in the Schedule 14D-9, if and to the extent that it shall have become false or misleading in any material
respect or as otherwise required by applicable Law, and the Company agrees to cause the Schedule 14D-9, as so corrected, to be filed with the SEC and disseminated to holders of shares of Common
Stock, in each case as and to the extent required by all applicable Laws, including the Exchange Act. Parent, Acquisition Sub and their counsel shall be given a reasonable opportunity to review the
Schedule 14D-9 before it is filed with the SEC, and the Company shall give due consideration to the reasonable additions, deletions or changes suggested thereto by Parent, Acquisition Sub and
their counsel. In addition, the Company shall provide Parent, Acquisition Sub and their counsel promptly with copies of any written comments, and shall inform them of any oral comments, that the
Company or its counsel may receive from time to time from the SEC or its staff with respect to the Schedule 14D-9 promptly after receipt of such comments, and any written or oral responses
thereto. Parent, Acquisition Sub and their counsel shall be given a reasonable opportunity to review any proposed written or oral responses and the Company shall give due consideration to the
reasonable additions, deletions or changes suggested thereto by Parent, Acquisition Sub and their counsel, and to participate in any substantive telephonic communications with the staff of the SEC
related thereto. Notwithstanding the foregoing, the obligations of the Company in this Section 2.2(a) shall not apply from and after the time the
Company Board effects a Change of Recommendation in accordance with Section 6.4.
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(b) Company Information. From time to time as requested by Acquisition Sub or its agents, the Company shall
furnish or cause to be furnished to Acquisition Sub mailing labels, security
position listings, non-objecting beneficial owner lists and any other listings or computer files available to it containing the names and addresses of the record or beneficial owners of the shares of
Common Stock as of the most recent practicable date, and shall promptly furnish Acquisition Sub with such information (including updated lists of holders of the shares of Common Stock and their
addresses, mailing labels, security position listings and non-objecting beneficial owner lists) and such other assistance as Acquisition Sub or its agents may reasonably request in communicating with
the record and beneficial holders of shares of Common Stock, in connection with the preparation and dissemination of the Schedule TO and the Offer Documents and the solicitation of tenders of
shares of Common Stock in the Offer. Parent and Acquisition Sub and their agents shall hold in confidence the information contained in any such labels, listings and files, will use such information
only in connection with such transactions and, if this Agreement shall be terminated, will, upon request, deliver, and will cause their agents to deliver, to the Company all copies of such information
then in their possession or control.
(c) Acceptance Time. The Company shall register the transfer of shares of Common Stock accepted for payment
effective immediately after the time at which Acquisition Sub accepts for
payment shares of Common Stock tendered and not properly withdrawn pursuant to the Offer (the "Acceptance Time"); provided that Acquisition Sub pays for
such shares of Common Stock at or immediately after such transfer.
Section 2.3 The Merger. Upon the terms and subject to the conditions of this Agreement, and in
accordance with the DGCL, at the Effective Time, Acquisition Sub shall be merged with and
into the Company, whereupon the separate existence of Acquisition Sub shall cease, and the Company shall continue under the name "Millennial Media, Inc." as the surviving corporation (the
"Surviving Corporation") and shall continue to be governed by the laws of the State of Delaware.
Section 2.4 Closing. Subject to the satisfaction or, if permissible, waiver of the conditions set forth
in Article VII hereof,
the closing of the Merger (the "Closing") will take place as soon as practicable following consummation of the Offer, on a date to be specified by the
parties hereto, but no later than the third Business Day after the satisfaction or waiver of the conditions set forth in Article VII hereof
(other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver of such conditions) at the offices of Wachtell, Lipton, Rosen &
Katz, 51 West 52nd Street, New York, New York 10019, unless another time, date or place is agreed to in writing by the parties hereto (such date being the "Closing
Date").
Section 2.5 Effective Time.
(a) Concurrently
with the Closing, the Company, Parent and Acquisition Sub shall cause a certificate of merger (the "Certificate of
Merger") with respect to the Merger to be executed and filed with the Secretary of State of the State of Delaware (the "Secretary of
State") as provided under the DGCL. The Merger shall become effective on the date and time at which the Certificate of Merger has been duly filed with the Secretary of State or
at such later date and time as is agreed between the parties and specified in the Certificate of Merger (such date and time being hereinafter referred to as the "Effective
Time").
(b) From
and after the Effective Time, the Surviving Corporation shall possess all properties, rights, privileges, powers and franchises of the Company and Acquisition Sub,
and all of the claims, obligations, liabilities, debts and duties of the Company and Acquisition Sub shall become the claims, obligations, liabilities, debts and duties of the Surviving Corporation.
5
Section 2.6 Certificate of Incorporation and Bylaws. Subject to Section 6.5 of this Agreement, at the Effective Time, the certificate of incorporation and the
bylaws of the Surviving Corporation shall be amended to be in the form of the certificate of incorporation and bylaws of Acquisition Sub except that the name of the Surviving Corporation shall be
"MARS", until thereafter amended in accordance with applicable Law and the applicable provisions of the certificate of incorporation and bylaws.
Section 2.7 Board of Directors. Subject to applicable Law, each of the parties hereto shall take all
necessary action to ensure that the Company Board from the Acceptance Time until the
Effective Time shall consist of the directors of the Company as of immediately prior to the Acceptance Time. Subject to applicable Law, each of the parties hereto shall take all necessary action to
ensure that the board of directors of the Surviving Corporation effective as of, and immediately following, the Effective Time shall consist of the members of the board of directors of Acquisition Sub
immediately prior to the Effective Time, each to hold office in accordance with the certificate of incorporation and bylaws of the Surviving Corporation until their respective successors shall have
been duly elected, designated or qualified, or until their earlier death, resignation or removal in accordance with the certificate of incorporation and bylaws of the Surviving Corporation.
Section 2.8 Officers. From and after the Effective Time, the officers of the Company at the Effective
Time, or such other persons as Parent shall select prior to the Effective Time in
its sole discretion, shall be the officers of the Surviving Corporation, until their respective successors are duly elected or appointed and qualified in accordance with applicable Law.
Section 2.9 Effecting the Merger. Promptly following the consummation of the Offer (the "Offer Closing"), the parties shall take all necessary and
appropriate actions to cause the Merger to become effective promptly following the Offer Closing, without a meeting of the stockholders of the Company, in accordance with Section 251(h) of the
DGCL. Without limiting the foregoing, the Merger shall be governed by Section 251(h) of the DGCL and the Merger shall be effected at the Closing.
ARTICLE III
EFFECT OF THE MERGER ON CAPITAL STOCK; EXCHANGE OF CERTIFICATES
Section 3.1 Effect of the Merger on Securities. At the Effective Time, by virtue of the Merger and
without any action on the part of the Company, Acquisition Sub or the holders of any securities of the Company
or Acquisition Sub:
(a) Cancellation of Company Securities; Conversion of Subsidiary-Owned Securities.
(i) Each
share of Common Stock held by the Company as treasury stock or held by Parent or Acquisition Sub immediately prior to the Effective Time shall automatically be
canceled and retired and shall cease to exist, and no consideration or payment shall be delivered in exchange therefor or in respect thereof.
(ii) Each
share of Common Stock that is owned by any direct or indirect wholly owned subsidiary of the Company or any direct or indirect wholly owned subsidiary of Parent
(other than Acquisition Sub) or of Acquisition Sub shall be converted into such number of shares of common stock of the Surviving Corporation such that the ownership percentage of any such subsidiary
in the Surviving Corporation
immediately following the Effective Time shall equal the ownership percentage of such subsidiary in the Company immediately prior to the Effective Time.
(b) Conversion of Company Securities. Except as otherwise provided in this Agreement, each share of Common
Stock issued and outstanding immediately prior to the Effective Time (other than shares
canceled or converted pursuant to Section 3.1(a) hereof and Dissenting Shares) shall be converted into the right to receive the Offer Price,
without interest (the "Merger
6
Consideration"). The holders of certificates or book-entry shares which immediately prior to the Effective Time represented such Common Stock (respectively, the
"Certificates "and "Book-Entry Shares") shall cease to have any rights with respect to such Common Stock
other than the right to receive, upon surrender of such Certificates or Book-Entry Shares in accordance with Section 3.2 of this Agreement, the
Merger Consideration, or, with respect to Dissenting Shares, the rights set forth in Section 262 of the DGCL.
(c) Conversion of Acquisition Sub Capital Stock. At the Effective Time, by virtue of the Merger and without
any action on the part of the holder thereof, each share of common stock, par value $0.01 per share, of
Acquisition Sub issued and outstanding immediately prior to the Effective Time shall be converted into and become one (1) validly issued, fully paid and nonassessable share of common stock, par
value $0.001 per share, of the Surviving Corporation and constitute the only outstanding shares of capital stock of the Surviving Corporation.
(d) Adjustments. Without limiting the other provisions of this Agreement and other than as contemplated by
this Agreement, if at any time during the period between the date of
this Agreement and the Effective Time, any change in the number of outstanding shares of Common Stock shall occur as a result of a reclassification, recapitalization, stock split (including a reverse
stock split), or combination, exchange or readjustment of shares, or any stock dividend or stock distribution with a record date during such period, the Offer Price and Merger Consideration shall be
equitably adjusted to reflect such change; provided that the Company may not effect such change except as permitted by this Agreement.
Section 3.2 Exchange of Certificates.
(a) Designation of Paying Agent; Deposit of Exchange Fund. Prior to the Effective Time, Parent shall
designate a paying agent (the "Paying Agent"), the identity and the
terms of appointment of which shall be reasonably acceptable to the Company, for the payment of the applicable Merger Consideration as provided in Section 3.1(b). At or before the filing of the
Certificate of Merger with the Secretary of State, Parent shall deposit, or cause to be deposited
with the Paying Agent, cash constituting an amount equal to the Total Common Merger Consideration (all cash deposited with the Paying Agent, the "Exchange
Fund"). At or immediately after the Effective Time, Parent shall pay or cause to be paid to the Surviving Corporation and the Surviving Corporation shall disburse in cash the
amounts payable at Closing in respect of the Company Options pursuant to Section 3.3(a) and the vested Company RSU Awards pursuant to Section 3.3(b). In the event the Exchange Fund shall be insufficient to make the payments contemplated by
Section 3.1(b) Parent shall promptly deposit, or cause to be deposited, additional funds with the Paying Agent in an amount which is equal to the
deficiency in the amount required to make such payment. The Paying Agent shall cause the Exchange Fund to be (i) held for the benefit of the holders of Common Stock and (ii) applied
promptly to making the payments pursuant to Section 3.2(c) hereof. The Exchange Fund shall not be used for any purpose other than to fund
payments pursuant to Section 3.2(c), except as expressly provided for in this Agreement.
(b) As
promptly as practicable following the Effective Time and in any event not later than the third Business Day thereafter, the Surviving Corporation shall cause the
Paying Agent to mail to each holder of record of a Certificate or Book-Entry Share that immediately prior to the Effective Time represented outstanding shares of Common Stock (x) a letter of
transmittal, which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares, as applicable, shall pass, only upon proper delivery of the
Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares to the Paying Agent and which shall be in the form and have such other provisions as Parent and the Company may reasonably
specify and (y) instructions for use in effecting the surrender of the Certificates or Book-Entry Shares in
7
exchange
for the Merger Consideration into which the number of shares of Common Stock previously represented by such Certificate or Book-Entry Shares shall have been converted pursuant to this
Agreement.
(c) Upon
surrender of a Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share for cancellation to the Paying Agent, together with a letter of transmittal
duly completed and validly executed in accordance with the instructions thereto, and such other documents as may be required pursuant to such instructions, the holder of such Certificate or Book-Entry
Share shall be entitled to receive in exchange therefor the Merger Consideration for each share of Common Stock formerly represented by such Certificate or Book-Entry Share, to be mailed, or delivered
by wire transfer, as elected by the surrendering holder, promptly following the later to occur of (i) the Effective Time or (ii) the Paying Agent's receipt and acceptance of such
Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share, and the Certificate (or affidavit of loss in lieu thereof) or Book-Entry Share so surrendered shall be forthwith canceled. The
Paying Agent shall accept such Certificates (or affidavits of loss in lieu thereof) or Book-Entry Shares upon compliance with such reasonable terms and conditions as the Paying Agent may impose to
effect an orderly exchange thereof in accordance with normal exchange practices. No interest shall be paid or accrued for the benefit of holders of the Certificates or Book-Entry Shares on the Merger
Consideration payable upon the surrender of the Certificates or Book-Entry Shares.
(d) Termination of Exchange Fund. Any portion of the Exchange Fund which remains undistributed to the
holders of the Certificates or Book-Entry Shares for nine (9) months after the
Effective Time shall be delivered to Parent, upon demand, and any such holders prior to the Merger who have not theretofore complied with this Article III shall thereafter look only to Parent as
general creditor thereof for payment of their claims for cash, without interest, to which
such holders may be entitled.
(e) No Liability. None of Parent, Acquisition Sub, the Company, the Surviving Corporation or the Paying
Agent shall be liable to any person in respect of any Merger Consideration
properly delivered to a public official pursuant to any applicable abandoned property, escheat or similar Law.
(f) Investment of Exchange Fund. The Paying Agent shall invest any cash included in the Exchange Fund as
directed by Parent or, after the Effective Time, the Surviving Corporation; provided that (i) no such investment shall relieve Parent or the Paying Agent from making the payments required by this
Article III, and following any losses Parent shall promptly provide additional funds to the Paying Agent for the benefit of the holders of Common
Stock in the amount of such losses, (ii) no such investment shall have maturities that could prevent or delay payments to be made pursuant to this Agreement and (iii) such investments
shall be in short-term obligations of the United States of America with maturities of no more than thirty days or guaranteed by the United States of America and backed by the full faith and credit of
the United States of America or in commercial paper obligations rated A-l or P-l or better by Moody's Investors Service, Inc. or Standard & Poor's Corporation, respectively. Any interest
or income produced by such investments will become a part of the Exchange Fund.
Section 3.3 Treatment of Equity Awards.
(a) Treatment of Company Options.
(i) As
of the Effective Time, each Company Option (or portion thereof) that is outstanding and unexercised as of the Effective Time (whether vested or unvested) shall be
canceled by virtue of the Merger and without any action on the part of any holder of any Company Option, in consideration for the right to receive a cash payment with respect thereto equal to the
product of (x) the number of shares of Common Stock subject to such Company
8
Option
as of the Effective Time and (y) the excess, if any, of the Merger Consideration over the exercise price per share of Common Stock subject to such Company Option as of the Effective Time
(the "Option Cash Payment"). The Surviving Corporation shall cause each Option Cash Payment to be paid, less any required withholding Taxes, as promptly
as practicable following the Effective Time. For the avoidance of doubt, if the exercise price per share of Common Stock subject to a Company Option as of the Effective Time equals or exceeds the
Merger Consideration, such Company Option shall be cancelled for no consideration as of the Effective Time, and the holder thereof shall have no further rights with respect thereto.
(ii) As
of the Effective Time, all Company Options (whether vested or unvested) shall no longer be outstanding and shall automatically cease to exist, and each holder of a
Company Option shall cease to have any rights with respect thereto, except the right to receive, in respect of a Company Option with an exercise price per share of Common Stock subject to such Company
Option as of the Effective Time that is less than the Merger Consideration, the Option Cash Payment.
(b) Treatment of Company RSU Awards.
(i) As
of the Effective Time, each Company RSU Award (or portion thereof) that is outstanding as of the Effective Time, shall, unless otherwise agreed to by Parent and
selected holders thereof, be canceled by virtue of the Merger and without any action on the part of any holder of any Company RSU Award, in consideration for the right to receive, following the
Effective Time and subject to the conditions below, a cash payment with respect thereto equal to the product of (x) the number of shares of Common Stock subject to such Company RSU Award as of
the Effective Time and (y) the Merger
Consideration (the "Company RSU Award Cash Payment"). The Company RSU Award Cash Payment which a former holder of an Company RSU Award may be eligible
to receive shall (1) be earned subject to the same vesting schedule and other vesting terms and conditions (including any applicable acceleration provisions, except as otherwise agreed to by
Parent and selected holders thereof in writing with respect to acceleration provisions relating to certain specified employment or other service termination rights) which applied to such holder's
Company RSU Award as of the Effective Time and (2) become payable, less any required withholding Taxes, on the applicable settlement date (or an alternative date during the month in which such
settlement date occurs) or within the applicable settlement period following vesting that applied to such Company RSU Award as of the Effective Time.
(ii) As
of the Effective Time, all Company RSU Awards (whether vested or unvested) shall no longer be outstanding and shall automatically cease to exist, and each holder of
a Company RSU Award shall cease to have any rights with respect thereto, except the right to receive the Company RSU Award Cash Payment.
(c) As
soon as reasonably practicable following the date of this Agreement, and in any event prior to the Effective Time, the board of directors of the Company (or, if
appropriate, any committee administering any Company Plan) shall adopt all resolutions and take all other actions (including, obtaining all consents) as may be necessary or required in accordance with
applicable Law, each Company Plan, the Equity Awards or otherwise to terminate each of the Company Plans and to effectuate all of the actions contemplated by this Section 3.3, contingent on the
Closing.
Section 3.4 Lost Certificates. If any Certificate shall have been lost, stolen or destroyed, then upon
the making of an affidavit of that fact by the person claiming such Certificate to be
lost, stolen or destroyed and, if required by the Surviving Corporation, the posting by such person of a bond, in such reasonable amount as the Surviving Corporation may direct, as indemnity against
any claim that may be made against it with respect to such Certificate, the Paying Agent will issue in exchange for such lost, stolen or destroyed Certificate the Merger Consideration to which the
holder thereof is entitled pursuant to this Article III.
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Section 3.5 Dissenting Shares. Notwithstanding Section 3.1(b)
, to the extent that holders thereof are entitled to appraisal rights under
Section 262 of the DGCL, shares of Common Stock issued and outstanding immediately prior to the Effective Time and held by a holder who has properly complied with the provisions of
Section 262 of the DGCL (the "Dissenting Shares"), shall not be converted into the right to receive the Merger Consideration, but the holders of
such Dissenting Shares shall have the rights set forth in Section 262 of the DGCL; provided, however, that if any such holder shall have failed to
perfect or shall have effectively withdrawn or lost his or her right to appraisal and payment
under the DGCL, such holder's shares of Common Stock shall thereupon be deemed to have been converted as of the Effective Time into the right to receive the Merger Consideration, without any interest
thereon, and such shares shall not thereafter be deemed to be Dissenting Shares.
Section 3.6 Transfers; No Further Ownership Rights. After the Effective Time, there shall be no
registration of transfers on the stock transfer books of the Company of shares of Common Stock that were outstanding
immediately prior to the Effective Time. If Certificates are presented to the Surviving Corporation for transfer following the Effective Time, they shall be canceled against delivery of the applicable
Merger Consideration, as provided for in this Article III, for each share of Common Stock formerly represented by such Certificates. All cash
paid upon the surrender of Certificates or Book-Entry Shares in accordance with the terms of this Article III shall be deemed to have been paid
in full satisfaction of all rights pertaining to the shares of Common Stock formerly represented by such Certificates or Book-Entry Shares, subject, however, to Parent and the Surviving Corporation's
obligation to pay any dividends or make any other distributions with a record date prior to the Effective Time which may have been authorized by the Company in compliance with this Agreement and which
remain unpaid at the Effective Time.
Section 3.7 Withholding Rights. Notwithstanding anything to the contrary contained herein, each of
Parent, Acquisition Sub, the Surviving Corporation and the Paying Agent shall be entitled to
deduct and withhold from any amounts payable pursuant to this Agreement such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code, or any
provision of state, local or non-U.S. Tax Law. To the extent that amounts are so deducted and withheld by or on behalf of Parent, Acquisition Sub, the Surviving Corporation or the Paying Agent, such
deducted and withheld amounts shall be treated for all purposes of this Agreement as having been paid to the person in respect of which such deduction and withholding was made and shall be paid over
to the appropriate Governmental Authority on such person's behalf.
Section 3.8 Subsequent Actions. The parties agree to take all necessary action to cause the Merger to
become effective as soon as practicable following the Offer Closing without a meeting of the
Company's stockholders, as provided in Section 251(h) of the DGCL.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (i) as disclosed in the Company SEC Documents filed with the SEC on or after January 1, 2014 and publicly
available on the SEC's Electronic Data-Gathering, Analysis and Retrieval system at least three (3) calendar days prior to the date hereof, other than in any "risk factors", or "forward-looking
statements" sections in such Company SEC Documents to the extent such disclosures are primarily predictive, cautionary or forward looking in nature or (ii) as disclosed in the corresponding
section of the separate disclosure letter which has been delivered by the Company to Parent prior to the execution of this Agreement (the "Company Disclosure
Letter") (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall be deemed disclosure with respect to any other section
or subsection to which the relevance of such item is reasonably
10
apparent
on the face of such disclosure), the Company hereby represents and warrants to Parent as follows:
Section 4.1 Organization and Qualification; Subsidiaries. Each of the Company and its subsidiaries is a
corporation or legal entity duly organized or formed, validly existing and in good standing, under the laws of its
respective jurisdiction of organization or formation and has the requisite corporate, partnership or limited liability company or other organizational power and authority to own, lease and operate its
properties and to carry on its business as it is now being conducted, except where the failure to have such power and authority would not be material to the Company and its subsidiaries, taken as a
whole. Each of the Company and its subsidiaries is duly qualified to do business or licensed as a foreign corporation or other entity to do business, and is in good standing, in each jurisdiction
where the ownership, leasing or operation of its properties or assets or conduct of its business requires such qualification or licensing, except for such failures to be so qualified or licensed and
in good standing as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
Section 4.2 Certificate of Incorporation and By-laws. The Company has made available to Parent complete
and correct copies of the certificate of incorporation and by-laws, or equivalent organizational documents, each
as amended to date, of the Company, each of the Company's subsidiaries. The Certificate of Incorporation and the By-laws and the equivalent organizational documents of each of the Company's
subsidiaries are in full force and effect. None of the Company's subsidiaries is in violation of any provision of its respective certificate of incorporation or by-laws (or equivalent organizational
documents) except as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. The Company is not in violation of any provision
of the Certificate of Incorporation or the By-laws.
Section 4.3 Capitalization.
(a) The
authorized capital stock of the Company consists of 250,000,000 shares of Common Stock and 5,000,000 shares of the Company's preferred stock, par value $0.001 per
share (the "Preferred Stock"). As of September 1, 2015: (i) 141,702,750 shares of Common Stock were issued and outstanding, (ii) no
shares of Preferred Stock were issued and outstanding and (iii) no shares of Common Stock were held in treasury. As of September 1, 2015 there were 29,430,603 shares of Common Stock
authorized and reserved for future issuance under the Company Plans (including outstanding Company Options to purchase 15,676,491 shares of Common Stock and 8,372,520 shares of Common Stock reserved
for issuance upon settlement of outstanding Company RSU Awards). Except as set forth above, as of September 1, 2015, no shares of capital stock of, or other equity or voting interests in, the
Company, or options, warrants or other rights to acquire any such stock or securities were issued, reserved for issuance or outstanding. From and after September 1, 2015 until and including the
date hereof, no
shares of capital stock of, or other equity or voting interests in, the Company have been issued except pursuant to the exercise of Company Options or the settlement of Company RSU Awards, in each
case, outstanding as of September 1, 2015, and no options, warrants or other rights to acquire or receive any such stock or securities have been issued. All outstanding shares of capital stock
of the Company are, and all shares that may be issued pursuant to the Company Plans will be, when issued in accordance with the terms thereof, duly authorized, validly issued, fully paid and
non-assessable and not subject to preemptive rights. None of the Company's subsidiaries owns any shares of Common Stock.
(b) Section 4.3(b) of the Company Disclosure Letter sets forth a true and complete list, as of the close of business
on the date hereof, of (i) (A) each outstanding Company Option grant and (B) each outstanding Company RSU Award (each, an "Equity Award"),
(ii) the name of the Equity Award holder, (iii) the number of shares of Common Stock underlying each Equity Award, including, to the extent applicable, the threshold, target and maximum
number of shares, (iv) the
11
date
on which each Equity Award was granted, (v) the Company Plan under which each Equity Award was granted, (vi) the exercise price of each Equity Award, in the case of Equity Awards
that are Company Options, (vii) the expiration date of each Equity Award, in the case of Equity Awards that are Company Options, and (viii) in the case of Company RSU Awards only, the
vesting schedule for each Company RSU Award, including, the terms of any single or double trigger vesting acceleration.
(c) (i)
Except as set forth in Section 4.3(a), there are no outstanding subscriptions, options, warrants, puts, calls,
convertible, or equity-linked securities or other similar rights, agreements, commitments or contracts of any kind to which the Company or any of its subsidiaries is a party or by which the Company or
any of its subsidiaries is bound obligating the Company or any of its subsidiaries to issue, deliver, repurchase, transfer or sell, or cause to be issued, delivered, repurchased, transferred or sold,
additional shares of capital stock of, or other equity or voting interests in, or securities convertible into, or exchangeable or exercisable for, or the value of which are determined based on the
value of, shares of capital stock of, or other equity or voting interests in, the Company or any of its subsidiaries or obligating the Company or any of its subsidiaries to issue, grant, extend or
enter into any such security, option, warrant, put, call, right, agreement, commitment or contract.
(ii) There
are no voting trusts, stockholder agreements, proxies, or other agreements in effect with respect to the voting or transfer of the shares of any of the Company or
any of its subsidiaries to which the Company or any of its subsidiaries is a party and to the Knowledge of the Company, there are no voting trusts, stockholders agreements, proxies or other agreements
in effect with respect to the voting
or transfer of the shares of the Company or any of its subsidiaries to which the Company or any of its subsidiaries is not a party.
(d) There
are no bonds, debentures, notes, or other indebtedness of the Company having the right to vote (or convertible into, or exchangeable for, securities having the
right to vote) on any matters on which holders of Common Stock or common stock of any of the Company's subsidiaries may vote.
(e) All
subsidiaries of the Company, and their respective jurisdictions of organization, are listed in Section 4.3(e)
of the Company Disclosure Letter. All the outstanding shares of capital stock of, or other equity interests in, each subsidiary of the Company have been validly issued and are fully paid and
nonassessable and are owned, directly or indirectly, by the Company free and clear of all Liens other than Permitted Liens. None of the Company or any of its subsidiaries owns, directly or indirectly,
any equity interests in any person other than the Company's subsidiaries.
Section 4.4 Authority Relative to Agreement.
(a) The
Company has all necessary corporate power and authority, and has taken all corporate action necessary, to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the Offer, the Merger and the other transactions contemplated hereby. Assuming the accuracy of the representations set forth in Section 5.9, the execution
and delivery of this Agreement by the Company and the Offer, the Merger and the other transactions contemplated hereby
have been duly and validly authorized by all necessary corporate action, and no other corporate proceedings on the part of the Company or its stockholders are necessary to authorize the execution and
delivery of this Agreement or to consummate the Offer, the Merger and the other transactions contemplated hereby (other than, with respect to the Merger, the filing of the Certificate of Merger with
the Secretary of State), assuming the conditions of Section 251(h) of the DGCL have been satisfied. This Agreement has been duly and validly executed and delivered by the Company and, assuming
the due authorization, execution and delivery by Parent and Acquisition Sub and the accuracy of the representations set forth in Section 5.9,
this
12
Agreement
constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms (except as such enforceability may be limited by bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and other similar laws of general applicability relating to or affecting creditor's rights, and by general equitable principles).
(b) At
a meeting duly called and held prior to the execution of this Agreement at which all directors of the Company were present, the board of directors of the Company duly
and unanimously adopted resolutions (i) declaring that this Agreement and the transactions contemplated hereby, including the Offer and the Merger, are fair to and in the best interests of the
Company's stockholders, (ii) approving and declaring advisable this Agreement and the transactions contemplated hereby, including the Offer and the Merger, in accordance with the requirements
of the DGCL, and (iii) recommending that the stockholders of the Company accept the Offer and tender their Common Stock to Acquisition Sub in the Offer (the "Company
Recommendation").
Section 4.5 No Conflict; Required Filings and Consents.
(a) None
of the execution, delivery and performance of this Agreement by the Company, the acceptance for payment or acquisition of shares of Common Stock pursuant to the
Offer, the consummation by the Company of the Merger or any of the transactions contemplated by this Agreement, or the Company's compliance with any of the provisions of this Agreement will (with or
without notice or lapse of time, or both) (i) conflict with or violate the Certificate of Incorporation or By-laws (or equivalent organizational documents) of (A) the Company or
(B) any of its subsidiaries, (ii) assuming the consents, approvals and authorizations specified in Section 4.5(b) have been
received and the waiting periods referred to therein have expired, and any condition precedent set forth on Section 4.5(b) of the Company
Disclosure Schedule has been satisfied, conflict with or violate any Law applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its
subsidiaries is bound or affected, or (iii) result in any breach of, or constitute a default (with or without notice or lapse of time, or both) under, or give rise in others to any right of
termination, amendment, acceleration or cancellation of, or result in the creation of a Lien, other than any Permitted Lien, upon any of the properties or assets of the Company or any of its
subsidiaries pursuant to, any note, bond, mortgage, indenture or credit agreement, or any other contract, agreement, lease, license, permit, franchise or other instrument or obligation to which the
Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries or any property or asset of the Company or any of its subsidiaries is bound or affected, other than, in
the case of clauses (ii) and (iii), any such violation, conflict, default, termination, cancellation, acceleration or Lien that would not have, and would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect.
(b) None
of the execution, delivery, and performance of this Agreement by the Company, the acceptance for payment or acquisition of shares of Common Stock pursuant to the
Offer, the consummation by the Company of the Merger or any of the transactions contemplated by this Agreement, or the Company's compliance with any of the provisions of this Agreement will require
(with or without notice or lapse of time, or both) any consent, approval, authorization, waiver or permit of, or filing with or notification to, any Governmental Authority, except for
(i) applicable requirements of the Exchange Act, the Securities Act or Blue Sky Laws, (ii) applicable requirements under the HSR Act, (iii) the filing of the Certificate of Merger
under the DGCL and (iv) applicable requirements of the rules of the NYSE, and except where failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not be, and would not reasonably be expected to be material to the Company and its subsidiaries taken as a whole.
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Section 4.6 Permits and Licenses; Compliance with Laws. Each of the Company and its subsidiaries is in
possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions,
consents, certificates, waivers, concessions, registrations, notices, approvals, orders or other authorizations of any Governmental Authority necessary for the Company or any of its subsidiaries to
own, lease and operate the properties of the Company and its subsidiaries or to carry on its business in all respects as it is now being conducted (the "Company
Permits"), and no suspension or cancellation of any of the Company Permits is pending or threatened, except where the failure to have, or the suspension or cancellation of, any
of the Company Permits would not be, and would not reasonably be expected to be material to the Company and its subsidiaries, taken as a whole. Section 4.6 of the Company Disclosure Schedule lists
each license from a Governmental Authority that is held by the Company or any of its
subsidiaries and for which a notice, filing or consent will be required as a result of the entry into this Agreement, the Offer, the Offer Closing, the Merger or the consummation of any of the
transactions contemplated by this Agreement. None of the Company or any of its subsidiaries is, and none of the Company or any of its subsidiaries has been, in conflict with, or in default or
violation of, (a) any Laws applicable to the Company or any of its subsidiaries or by which any property or asset of the Company or any of its subsidiaries is bound or affected or
(b) any of the Company Permits, except in each case for any such conflicts, defaults or violations that, individually or in the aggregate, would not be, and would not reasonably be expected to
be material to the Company and its subsidiaries, taken as a whole. The Company and its subsidiaries will continue to have the use of and benefit of all Company Permits following consummation by the
Company of the Merger or any of the transactions contemplated by this Agreement, except where the failure to have such Company Permits would not be, and would not reasonably be expected to be material
to the Company and its subsidiaries, taken as a whole. No Company Permit is held in the name of any employee, officer, director, stockholder, agent or otherwise on behalf of the Company or its
subsidiaries. None of the Company or its subsidiaries is in possession of any licenses from the Federal Communications Commission.
Section 4.7 Company SEC Documents.
(a) Since
January 1, 2014, the Company has filed with the SEC all material forms, documents and reports required to be filed or furnished prior to the date hereof by
it with the SEC (the "Company SEC Documents"). As of their respective dates, or, if amended or superseded by a filing prior to the date of this
Agreement, as of the date of such amendment or superseding filing, the Company SEC Documents complied in all material respects with the requirements of the Securities Act or the Exchange Act, as the
case may be, and the applicable rules and regulations promulgated thereunder, and none of the Company SEC Documents at the time it was filed contained any untrue statement of a material fact or
omitted 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 were made, or are to be made, not misleading. No executive officer of the Company has failed to make the certifications required
by him or her under Section 302 or 906 of the Sarbanes-Oxley Act, with respect to any Company SEC Document, except as disclosed in certifications filed with the Company SEC Documents.
(b) The
consolidated financial statements (including all related notes and schedules) of the Company included in the Company SEC Documents (i) fairly present in all
material respects the consolidated financial position of the Company and its consolidated subsidiaries as at the respective dates thereof and their consolidated results of operations and consolidated
cash flows for the respective periods then ended (subject, in the case of unaudited statements, to normal year-end audit adjustments, to the absence of notes and to any other adjustments described
therein, including in any notes thereto), (ii) have been prepared in all material respects in accordance with the books and records of the Company and its subsidiaries, and (iii) have
been
14
prepared
in accordance with GAAP applied on a consistent basis during the periods indicated (except as may be indicated therein or in the notes thereto).
Section 4.8 Disclosure Controls and Procedures. The Company has established and maintains disclosure
controls and procedures and internal control over financial reporting (as such terms are defined in
paragraphs (e) and (f), respectively, of Rule 13a-15 under the Exchange Act) as required by Rule 13a-15 under the Exchange Act. The Company's disclosure controls and procedures
are designed to ensure that information required to be disclosed in the Company's periodic reports filed or submitted under the Exchange Act is recorded, processed, summarized and reported within the
required time periods. The Company is in compliance in all material respects with the applicable provisions of the Sarbanes-Oxley Act and the applicable listing and corporate governance rules and
regulations of the NYSE. Since January 1, 2013 through the date hereof, the Company has not identified (a) any material weakness in the design or operation of internal control over
financial reporting which reasonably could adversely affect the Company's ability to record, process, summarize and report financial information or (b) any fraud or allegation of fraud, whether
or not material, that involves management or other employees who have a significant role in the Company's internal control over financial reporting.
Section 4.9 Absence of Certain Changes or Events.
(a) From
December 31, 2014 through the date of this Agreement, (i) except for the negotiation, execution and delivery of this Agreement, the businesses of the
Company and its subsidiaries have been conducted in the ordinary course of business consistent with past practice in all material respects, (ii) there has not been any event, development or
state of circumstances that would have, or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, and (iii) except as would not have, and
would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect, neither the Company nor any of its subsidiaries has suffered any loss, damage,
destruction, or other casualty affecting any of its properties or assets, whether or not covered by insurance.
(b) From
December 31, 2014 through the date hereof, the Company and its subsidiaries have taken no action that, if taken after the date hereof and prior to the
Closing, would have been prohibited under Section 6.1(c), Section 6.1(f) - (g), Section 6.1 (i) - (l) or
Section 6.1 (n) - (u).
Section 4.10 No Undisclosed Liabilities; Indebtedness.
(a) Except
(i) as reflected or expressly reserved against in the Company's financial statements or the notes thereto included in the Company SEC Documents filed with
the SEC on or after April 1, 2015 and publicly available on the SEC's Electronic Data-Gathering, Analysis and Retrieval system at least three (3) calendar days prior to the date hereof
and (ii) for liabilities or obligations incurred in the ordinary course of business consistent with past practice since the date of such financial statements, neither the Company nor any of its
subsidiaries has any liabilities or obligations of any nature, whether or not accrued, contingent or otherwise, other than those which would not be, individually or in the aggregate, and would not
reasonably be expected to be material to the Company and its subsidiaries taken as a whole. None of the Company nor any of its subsidiaries is a party to, or has any commitment to become a party to,
any joint venture, off-balance sheet partnership or any similar contract or arrangement (including any contract or arrangement relating to any transaction or relationship between or among the Company
and any of its subsidiaries, on the one hand, and any unconsolidated Affiliate of any of them, including any structured finance, special purpose or limited purpose entity or person, on the other
hand), or any "off-balance sheet arrangements"(as defined in Item 303(a) of Regulation S-K under the Exchange Act).
15
(b) Section 4.10(b) of the Company Disclosure Schedule sets forth a true and complete list of all outstanding
indebtedness (excluding for the avoidance of doubt Company Leases or equipment leases) of the Company and any of its subsidiaries that exceeds $500,000 in principal amount outstanding as of the date
hereof, other than indebtedness between or among the Company and any wholly owned subsidiaries of the Company.
Section 4.11 Absence of Litigation. There is no, and there has not been since January 1, 2012, any
claim, action, proceeding or investigation pending or, to the Knowledge of the Company,
threatened against the Company or any of its subsidiaries or any of their respective officers, directors or managers (in their capacity as such), or any of their respective properties or assets at law
or in equity, and there are no Orders, before any arbitrator or Governmental Authority, in each case as would be, or would reasonably be expected to be, individually or in the aggregate, material to
the Company or its subsidiaries, taken as a whole. The Company and its subsidiaries are in compliance, and during the past six (6) years have been in compliance with, all settlement agreements
and Orders to which the Company is a party or is otherwise subject and which remain in effect.
Section 4.12 Employee Benefit Plans.
(a) Section 4.12(a)
of the Company Disclosure Letter sets forth a true and complete list of each material Company Benefit Plan. The Company has made available to
Parent and Acquisition Sub true and complete copies of (i) each material Company Benefit Plan (including all amendments thereto); and (ii) with respect to each material Company Benefit
Plan, to the extent applicable, (A) the most recent annual report on Form 5500 and all schedules thereto filed with respect to such Company Benefit Plan; (B) the most recent
summary plan description, summary of material modifications and plan prospectus; (C) each current trust agreement, insurance contract or policy, group annuity contract and any other funding
arrangement relating to such Company Benefit Plan; (D) the most recent actuarial report, financial statement or valuation report; and (E) a current IRS opinion or favorable determination
letter.
(b) Each
Company Benefit Plan is, and since January 1, 2012 has been, operated and administered in all material respects in accordance with its terms and applicable
Law, including, ERISA and the Code. There is no, and there has not been in the past three (3) years any material action, suit, audit or investigation by any Governmental Authority, termination
proceeding or other claim (except routine claims for benefits payable under the Company Benefit Plans) pending or, to the Knowledge of the Company, threatened, against or involving any Company Benefit
Plan or asserting any rights to or claims for benefits under any Company Benefit Plan.
(c) No
Company Benefit Plan is, and neither the Company any subsidiary nor any ERISA Affiliate of the Company or any subsidiary maintains, sponsors, is required to
contribute to, or has any liability (including any contingent liability) with respect to, a (i) Multiemployer Plan, (ii) plan that has two or more contributing sponsors, at least two of
whom are not under common control, within the meaning of Section 4063 of ERISA or (iii) a plan that is subject to Section 302 or Title IV of ERISA or Section 412 of the
Code.
(d) Each
Company Benefit Plan intended to be qualified under Section 401(a) of the Code has either received a favorable determination letter from the IRS or may rely
on a favorable opinion letter issued by the IRS, and to the Knowledge of the Company, nothing has occurred since the date of such determination or opinion letter that would reasonably be expected to
adversely affect such qualification. All contributions or other amounts payable under or in connection with each Company Benefit Plan required to have been made under the terms of such Company Benefit
Plan or pursuant to applicable Law, including ERISA and the Code, have been timely made by the due date thereof (including any valid extension), and all such contributions and other amounts payable
under or in connection with each Company Benefit Plan for any period on
16
or
before the Closing Date which are not yet due will have been paid or accrued in accordance with GAAP on the balance sheet of the Company on or prior to the Closing Date.
(e) Except
as set forth on Section 4.12(e) of the Company Disclosure Letter, neither the execution and delivery of
this Agreement nor the consummation of the transactions contemplated hereby will (either alone or together with any other event): (i) entitle any current or former employee, officer, director
or independent contractor of the Company or any of its subsidiaries to any payment or benefit under any Company Benefit Plan; (ii) increase the amount of any compensation, equity award or other
benefits otherwise payable by the Company or any of its subsidiaries under any Company Benefit Plan;
(iii) result in the acceleration of the time of payment, funding or vesting of any compensation, equity award or other benefits under any Company Benefit Plan; (iv) result in any "excess
parachute payment"(within the meaning of Section 280G of the Code) becoming due to any current or former employee, officer, director or independent contractor of the Company or any of its
subsidiaries; or (v) limit or restrict the right of the Company or any of its subsidiaries to merge, amend or terminate any Company Benefit Plan.
(f) Neither
the Company nor any of its subsidiaries is a party to, or is otherwise obligated under, any Company Benefit Plan or any other plan, policy, agreement or
arrangement that provides for the gross-up or reimbursement of Taxes, including, any Taxes imposed under Section 409A or 4999 of the Code (or any corresponding provisions of state or local Law
relating to Tax).
(g) Except
as set forth on Schedule 4.12(g), no Company Benefit Plan provides health insurance, life insurance or death benefits or coverage to current or former
employees of the Company or any of its subsidiaries beyond their retirement or other termination of service, other than as required by Section 4980B of the Code and at the sole expense of such
individual.
(h) All
Company Benefit Plans maintained pursuant to the Laws of a country other than the United States and all plans or arrangements applicable to employees outside of the
United States that are mandated by applicable Law (i) are, and since January 1, 2012 have been, maintained in all material respects in accordance with all applicable requirements
(including applicable Law), (ii) that are intended to qualify for special Tax treatment meet, and since January 1, 2012 have met, all material requirements for such treatment, and
(iii) that are required to be funded and/or book-reserved are, and since January 1, 2012 have been, funded and/or book-reserved, as appropriate in accordance with GAAP and, if required,
applicable Law.
Section 4.13 Labor Matters. There are no collective bargaining agreements, works council or similar to
which the Company or any of its subsidiaries is a party or by which the Company or any
of its subsidiaries is bound. None of the employees of the Company or any of its subsidiaries is represented by any union, works council or other employee representative group with respect to their
employment by the Company or such subsidiary. There is no union or works council organization activity involving any of the employees of the Company or its subsidiaries pending or, to the Knowledge of
the Company, threatened. There is no labor strike, slowdown or lockout, or, to the Knowledge of the Company, threat thereof, by or with respect to any employee of the Company or any of its
subsidiaries. No individual who has performed services for the Company or any of its subsidiaries is, or since January 1, 2012 has been, improperly excluded from participation in any Company
Benefit Plan, and neither the Company nor any subsidiary has since January 1, 2012 incurred any current or contingent liability with respect to any misclassification of any person as an
independent contractor rather than as an employee, or as exempt rather than non-exempt, or with respect to any employee leased from another employer, in each case except as, individually or in the
aggregate, has not been, and would not reasonably be expected to be, material to the Company and its subsidiaries, taken as a whole. Except as, individually or in the aggregate, has not been, and
would not reasonably be expected to be, material to the Company and its subsidiaries, taken as a whole: (a) there is no, and there has not
17
been
in the past three (3) years any, unfair labor practice, labor dispute (other than routine individual grievances) or labor arbitration proceeding pending, or to the Knowledge of the
Company, threatened against the Company or any of its subsidiaries; and (b) the Company and its subsidiaries are, and since January 1, 2012 have been, in compliance with all applicable
Laws with respect to employment, employment practices, terms and conditions of employment, wages and hours, unfair labor practices, and the WARN Act.
Section 4.14 Intellectual Property, Technology and Privacy.
(a) Section 4.14(a) of the Company Disclosure Letter sets forth a complete and accurate list of all Registered IP and
all material unregistered Intellectual Property Rights contained in the Company Intellectual Property Rights. The Company and its subsidiaries own or have the right to use in the manner currently used
by the Company and its subsidiaries all Intellectual Property used or contemplated to be used in connection with the business of the Company and its subsidiaries as currently conducted (the
"Company Intellectual Property"), except as would not have, and would not reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect. To the Knowledge of the Company, there are no facts or circumstances that would render invalid or unenforceable, or materially restrict the scope of, any Registered IP
contained in the Company Intellectual Property Rights.
(b) The
execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby will not (i) result in the material loss of
rights as to or materially impair or alter the rights of the Company or any of its subsidiaries as to, or (ii) require the Company or any of its subsidiaries to assign, transfer, grant rights
in or to, disclose or deliver to a third person (other than Parent or Acquisition Sub), in each case of clauses (i) and (ii) above, any Company Intellectual Property Rights, or, solely
with respect to clause (i) above, any other Company Intellectual Property, including Intellectual Property owned by third persons and used in or held for use in the business of the Company.
(c) The
Company and its subsidiaries have taken commercially reasonable actions to police the material Company Intellectual Property Rights against unauthorized use by third
parties.
(d) Neither
the Company nor any of its subsidiaries is a party to or bound by any decree, judgment, order or arbitral award that is reasonably expected to require the
Company or any of its subsidiaries to grant to any third party any license, covenant not to sue, release, immunity or other right with respect to any material Company Intellectual Property Rights.
(e) Neither
the Company nor any of its subsidiaries has received notice that any Company Intellectual Property Rights are or have been involved in any interference,
opposition, reissue, reexamination, review or other claim, action, proceeding, or investigation of any nature in which the ownership, scope, validity or enforceability of any such Company Intellectual
Property Rights are being or have been contested or challenged and, to the Knowledge of the Company, no such action has been threatened, other than such proceedings in the ordinary course of
prosecution of any Registered IP that is part of the Company Intellectual Property Rights.
(f) The
Company and each of its subsidiaries have, in accordance with applicable Law of each relevant jurisdiction, taken commercially reasonable actions to maintain and
protect (i) Company Intellectual Property Rights (including making and maintaining any necessary filings, registrations, issuances and payments) and (ii) the secrecy and confidentiality
of their material Trade Secrets.
(g) (i)
The Company and each of its subsidiaries have used and use reasonable commercial efforts to require execution by each Company Associate of proprietary information,
confidentiality and assignment agreements appropriate for the relevant jurisdiction; and (ii) neither the Company nor any of its subsidiaries has received a written claim from any such Company
Associate alleging ownership of any material Company Intellectual Property.
18
(h) (i)
To the Knowledge of the Company, neither the Company nor any of its subsidiaries is currently infringing (directly, contributorily, by inducement or otherwise),
misappropriating, or otherwise violating or, at any time during the past six year period, has infringed (directly, contributorily, by inducement or otherwise), misappropriated, or otherwise violated,
any Intellectual Property Right relating to, arising from, or associated with a Patent of any other person; (ii) neither the Company nor any of its subsidiaries is currently infringing
(directly, contributorily, by inducement or otherwise), misappropriating, or otherwise violating or, at any time during the past six year period, has infringed (directly, contributorily, by inducement
or otherwise), misappropriated, or otherwise violated, any other Intellectual Property Right of any other person; and (iii) since January 1, 2012, neither the Company nor any of its
subsidiaries has received any written notice alleging any infringement, misappropriation, or violation of any Intellectual Property Right of another person.
(i) To
the Knowledge of the Company, no person is currently infringing, misappropriating or otherwise violating any Company Intellectual Property Rights, or has infringed,
misappropriated or otherwise violated any Company Intellectual Property Rights. Neither the Company nor any of its subsidiaries has made any written claim, demand, notice, cease and desist or other
notification with respect to infringement, misappropriation or other violation of any Company Intellectual Property Rights against any person.
(j) To
the Knowledge of the Company, as of the date of this Agreement, none of the Company Software or Company Products contains any "back door," "drop dead device," "time
bomb," "Trojan horse," "virus," or "worm" (as such terms are commonly understood in the software industry) or any other similar code that has resulted in: (i) materially disrupting, disabling,
harming or otherwise materially impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or
(ii) materially damaging or destroying any data or file without the user's consent.
(k) Neither
the Company nor any of its subsidiaries has disclosed or delivered to any escrow agent or any other person (other than an employee or, in the ordinary course of
business and for the provision of software development, support or maintenance services to the Company or any subsidiary, an independent contractor of the Company or any of its subsidiaries) any of
the source code for any Company Software, and no other person has the right, contingent or otherwise, to obtain access to such source code. No event has occurred, and no circumstance or condition
exists, that (with or without notice or lapse of time or both) will, or would reasonably be expected to, result in the release, delivery, license or disclosure of any of the source code for any
Company Software that is material to the conduct of the business of the Company to any person who is not as of the date of this Agreement a current employee or, in the ordinary course of business and
for the provision of software development, support or maintenance services to the Company or any subsidiary, an independent contractor of the Company or any of its subsidiaries.
(l) Neither
the Company nor any of its subsidiaries distributes, uses or licenses to any other person (or has present plans to distribute, use or license to any other
person) any Company Software that is material to the conduct of the business of the Company that is subject to, or contains or is derived from Open Source Software in a manner that would require any
source code of such Company Software to be disclosed, licensed for free, publicly distributed or dedicated to the public. Neither the Company nor any of its subsidiaries is in violation of any
provision of the applicable license agreement for any Open Source Software that operates or is contained in, distributed with or used in the development of any Company Software or any Company Product
operating using, containing or used in conjunction with any Company Software, nor are there any present plans that would cause any such violation in the future. The Company and its subsidiaries
19
have
and have at all times complied in all material respects with a written policy relating to the use of Open Source Software, which policy has been provided to Parent prior to the date hereof.
(m) To
the Knowledge of the Company there has been no failure or breakdown of, or unauthorized access to or unauthorized use of, any core information technology systems of
the Company or any of its subsidiaries that has resulted in a material disruption or material interruption in the operation of the business of the Company or any of its subsidiaries that has not been
substantially repaired or remedied. The Company and its subsidiaries have in place commercially reasonable disaster recovery and business continuity plans and procedures.
(n) The
Company and its subsidiaries have at all times (i) complied in all material respects with all applicable Privacy Laws, regulatory and self-regulatory
guidelines, published interpretations by Governmental Authorities of such Privacy Laws and guidelines, and all similar consumer protection laws relating to the receipt, collection, compilation, use,
storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure, or transfer of all customer information, including Personal Information, Geolocation Data and Non-PII that is
possessed by or otherwise subject to the control of the Company or its subsidiaries; (ii) complied in all material respects with all of the Company's and its subsidiaries' policies regarding
privacy and data security, including (A) all privacy policies and similar disclosures published on the Company's and its subsidiaries' websites or mobile apps or otherwise communicated in
writing to third parties, (B) any notice to or consent from the provider of Personal Information or Geolocation Data, (C) any existing contractual commitment made by the Company or its
subsidiaries with respect to Personal Information, Geolocation Data or Non-PII, and (D) any privacy policy otherwise made available by the Company or its subsidiaries to the persons to whom
Personal Information relates; and (iii) complied in all material respects with the Payment Card Industry Data Security Standard with respect to any payment card data collected or handled
(A) by the Company or its subsidiaries, or (B) by third parties (1) on the Company's or its subsidiaries' behalf or (2) having authorized access to the Company's or its
subsidiaries' records. The Company's and its subsidiaries' privacy policies and all applicable offerings in connection with the businesses of the Company and its subsidiaries, including offerings
offered through the Company's and its subsidiaries' service providers, vendors or partners, conform, and at all times have conformed, in all material respects to all applicable self-regulatory
principles issued by (x) the Network Advertising Initiative (the "NAI"), including its Self-Regulatory Code of Conduct, and the NAI's
interpretations of such Code of Conduct, and (y) the Digital Advertising Alliance (the "DAA") or affiliates of the DAA in other jurisdictions
with respect to online behavioral advertising or online privacy, as interpreted by the DAA, any such affiliate, or any accountability body with responsibility to enforce the DAA's or its affiliates'
self-regulatory principles in any compliance proceeding. Section 4.14(n) of the Company Disclosure Letter sets forth all voluntary and/or
self-regulatory standards established by third parties (other than Privacy Laws or Laws generally) to which the Company or any of its subsidiaries has agreed to abide by concerning the receipt,
collection, compilation, use, storage, processing, sharing, safeguarding, security, disposal, destruction, disclosure, transfer or other disposition of Personal Information, Geolocation Data or
Non-PII.
(o) The
Company and its subsidiaries have taken all reasonably necessary measures that afford the Company and its subsidiaries the protection of each of the following safe
harbors: (i) the safe harbors under 17 U.S.C. §§ 512(a), 512(b), 512(c) and 512(d) of the U.S. Digital Millennium Copyright Act; (ii) the safe harbors
under 47 U.S.C. §§ 230(c)(1) and 230(c)(2) of the Communications Decency Act; (iii) any safe harbors under foreign Laws that are similar to the safe harbors
described in Section 4.14(o)(i) or (ii); and (iv) any other applicable safe harbors for
online service providers.
(p) Except
for disclosures of information required by Law, authorized by the provider, or as scheduled pursuant to Section 4.16(a)(ix) as a Company Material Contract, neither the Company
20
nor
its subsidiaries has shared, sold, rented or otherwise made available, and does not share, sell, rent or, to the Knowledge of the Company, otherwise make available, to third parties any Personal
Information, Geolocation Data or Non-PII.
(q) The
Company and its subsidiaries have contractually obligated all third-party service providers, outsourcers, processors, or other users of Personal Information
collected, held, or controlled by the Company or its subsidiaries to (i) comply with applicable Privacy Laws with respect to Personal Information, (ii) take reasonable steps to protect
and secure Personal Information from unauthorized disclosure, (iii) restrict use of Personal Information to those authorized or required under the servicing, outsourcing, processing, or similar
arrangement and (iv) certify or guarantee the return or adequate disposal or destruction of Personal Information.
(r) The
transfer of Personal Information, Geolocation Data and Non-PII in connection with the transactions contemplated by this Agreement will not violate any applicable
Privacy Laws or the Company's or its subsidiaries' privacy policies as they currently exist or as they existed at any time during which any of the Personal Information Geolocation Data or Non-PII was
collected or obtained. Neither the Company nor its subsidiaries are subject to any contractual requirements or other legal obligations that, following the Closing, would prohibit the Company or Parent
or Acquisition Sub from receiving or using Personal Information, Geolocation Data or Non-PII in the manner in which the Company or its subsidiaries receive and use such Personal Information,
Geolocation Data or Non-PII immediately prior to the Closing.
(s) The
Company and its subsidiaries have taken organizational, physical, administrative and technical measures reasonably consistent with practices in the industry in which
the Company and its subsidiaries operate, Privacy Laws, any existing contractual commitment made by the Company that is applicable to Personal Information or Geolocation Data, and any written policy
adopted by the Company and its subsidiaries related to privacy, information security or data security, to protect (i) the integrity, security and operations of the Company's information
technology systems and (ii) any of the Company's and its subsidiaries' information technology systems, transactions executed thereby, data owned by the Company or provided by its customers
(including Personal Information, Geolocation Data, Non-PII and other customer information) against loss, theft, unauthorized access, use, modification, disclosure or other misuse. The Company and its
subsidiaries have implemented procedures reasonably consistent with practices in the industry in which the Company and its subsidiaries operate to detect data security
breaches and unauthorized access or unauthorized use of the Company's and its subsidiaries' information technology systems and transactions executed thereby, Personal Information and data owned or
controlled by the Company and its subsidiaries or provided by their customers, including data security breaches, unauthorized access or unauthorized use by the Company's and its subsidiaries'
employees, independent contractors, consultants and third party service providers.
(t) There
have not been any incidents of, or claims related to, data security breaches, unauthorized access or use of any of the Company's or its subsidiaries' information
technology systems, or unauthorized acquisition, destruction, damage, disclosure, loss, corruption, alteration, or use of any Personal Information or data owned by the Company or its subsidiaries or
provided by their customers, and there are no facts or circumstances which could reasonably serve as the basis for any such allegations or claims. There are no data security, information security or
other technological vulnerabilities with respect to the Company's or its subsidiaries' information technology systems, and neither the Company nor any of its subsidiaries have been notified by any
third party (including by "white hat" hackers) of any such vulnerabilities, that (i) are unpatched or otherwise unresolved and (ii) could (A) adversely impact the operation of
such information technology systems or (B) cause the unauthorized acquisition, destruction, damage, disclosure, loss, corruption, alteration, or use of any Personal Information or data owned by
the Company or its subsidiaries or provided by their customers. Neither the Company nor its subsidiaries have notified,
21
or
to the Knowledge of the Company, been required to notify, any person of any information security breach or incident involving Personal Information, Geolocation Data or any other customer
information. Neither the Company nor its subsidiaries have received any notice of any claims, investigations (including investigations by regulatory authorities or any data protection authorities), or
alleged violations of Laws with respect to Personal Information, Geolocation Data or any other customer information possessed by or otherwise subject to the control of the Company or its subsidiaries,
and, to the Knowledge of the Company, there are no facts or circumstances which could form the basis for any such claim.
Section 4.15 Taxes. (i) The Company and each of its subsidiaries has prepared (or caused to be
prepared) and timely filed (or caused to be timely filed), taking into account
any extension of time within which to file, all material Tax Returns required to be filed by or with respect to any of them, and all such Tax Returns are true, correct and complete in all material
respects; (ii) the Company and each of its subsidiaries has paid all material Taxes that are required to be paid by any of them, whether or not shown as due on any Tax Return (including any
Taxes required to be withheld from amounts owing to any employee, creditor or third party), except with respect to matters for which adequate reserves have been established in accordance with GAAP in
the Company's financial statements included in the Company SEC Documents; (iii) as of the date of this Agreement, there are no pending, or, to the Knowledge of the Company, threatened, audits,
examinations, investigations or other proceedings in respect of any material Taxes; (iv) no material deficiency with respect to Taxes has been proposed, asserted or assessed in writing against
the Company or any of its subsidiaries, except for deficiencies that have been satisfied, settled or withdrawn or with respect to matters for which adequate reserves have been established in
accordance with GAAP in the Company's financial statements included in the Company SEC Documents; (v) there are no Liens for material Taxes on any of the assets of the Company or any of its
subsidiaries, other than Permitted Liens; (vi) neither the Company nor any of its subsidiaries has waived any statute of limitations with respect to any material amounts of Tax or agreed to any
extension of time with respect to any material Tax assessment or deficiency; (vii) neither the Company nor any of its subsidiaries has constituted a "distributing corporation" or a "controlled
corporation"(within the meaning of Section 355(a)(1)(A) of the Code) in a distribution of stock intended to qualify for tax-free treatment under Section 355 of the Code (or any similar
provision of state, local or non-U.S. Law) in the two (2) years prior to the date of this Agreement; (viii) neither the Company nor any of its subsidiaries has (A) entered into
any "listed transaction" within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of state, local or non-U.S. Law), or (B) failed to disclose a
position that could give rise to an accuracy related penalty under Section 6662 or 6662A of the Code; (ix) within the last three years no claim has been made in writing by a Governmental
Authority in a jurisdiction where the Company or any of its subsidiaries does not file Tax Returns that it is or may be subject to material taxation by that jurisdiction; (x) neither the
Company nor any of its subsidiaries will be required to include any item of income in, or to exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after
the Closing Date as a result of any (A) change in method of accounting made on or prior to the Closing Date, (B) prepaid amount received on or prior to the Closing Date outside of the
ordinary course of business, or (C) deferred intercompany stock accounts existing as of the Closing Date; (xi) the federal income Tax Returns of the Company and each of its subsidiaries
have been examined by the applicable Governmental Authority (or the applicable statute of limitations for the assessment of Taxes for such periods has expired) for all periods through and including
December 31, 2010; (xii) no ruling, technical advice memorandum, or agreement has been entered into or issued by any Governmental Authority with respect to or to the Company or any of
its subsidiaries in respect of any material amounts of Tax; (xiii) neither the Company nor any of its subsidiaries has any material liability for the Taxes of another person pursuant to
Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. law) or otherwise by reason of (A) being a member of an affiliated, consolidated, combined or
unitary group or otherwise as a transferee or successor or (B) being party to any Tax sharing or indemnification agreement or other similar agreement (other than (1) any such agreements
solely
22
between
the Company and its subsidiaries, (2) customary Tax indemnification provisions in commercial contracts entered into in the ordinary course of business and not primarily related to Taxes
or (3) any such agreement to pay property Taxes with respect to leased properties); (xiv) the Company and its subsidiaries have made available to Parent true, complete and correct copies
of (A) all federal income Tax Returns, all material state, local and non-U.S. income Tax Returns, and all material sales, use and property Tax Returns, in each case, of the Company and its
subsidiaries for all taxable periods for which the applicable statute of limitations for the assessment of Taxes remains open by operation of Law or as otherwise extended by the Company or its
subsidiaries and (B) any audit report issued within the last five (5) years relating to material Taxes of the Company or its subsidiaries; and (xv) neither the Company nor any of
its subsidiaries (A) is a passive foreign investment company within the meaning of Section 1297 of the Code, or (B) has a permanent establishment outside the country of its
incorporation that, in either case could result in a material amount of Tax. For purposes of this Section 4.15, (I) any reference to the
Company or any of its subsidiaries shall be deemed to include any person that merged with or was liquidated or converted into the Company or any such subsidiary, as applicable; and (II) any
reference to "material Tax", "material amounts of Tax" or "material liability for Tax", or similar phrases, shall mean an amount in excess of $250,000.
Section 4.16 Material Contracts.
(a) Except
as set forth in Section 4.16 of the Company Disclosure Letter, as of the date hereof, neither the Company
nor any of its subsidiaries is a party to or bound by any:
(i) "material
contract"(as such term is defined in item 601(b)(10) of Regulation S-K of the SEC);
(ii) contract
or instrument relating to indebtedness for borrowed money or third party financial guarantee with a principal amount in excess of $500,000, relating to any
Lien on any asset of the Company or any of its subsidiaries securing obligations in excess of $500,000 or relating to any interest rate, currency or commodity derivatives or hedging transactions for
which the aggregate exposure is reasonably expected to be in excess of $500,000;
(iii) contract
to which the Company or any of its subsidiaries or any of their respective Affiliates is a party that materially restricts the Company, any of its
subsidiaries or any of their respective Affiliates from engaging or competing in any line of business or in any geographic area, or which would so restrict the Company, any of its subsidiaries or any
of their respective Affiliates following a change in control of the Company;
(iv) contract
with any Governmental Authority;
(v) contract
for the sale or purchase of any real property, or for the sale or purchase of any tangible personal property in an amount in excess of $500,000;
(vi) contract
relating to settlement of any administrative or judicial proceedings within the past five years;
(vii) contract
relating to any single or series of related capital expenditures by the Company or its subsidiaries in excess of $500,000;
(viii) contract
pursuant to which the Company or its subsidiaries has undertaken to indemnify any of its directors, officers or other employees;
(ix) contract
where the Company or any of its subsidiaries is a party, pursuant to which Personal Information is shared, sold, rented, licensed, stored (whether physically,
on the cloud, or by other electronic means), transferred or otherwise made available (collectively "Access") by the Company or any of its subsidiaries
to or with third persons and for which such third person's Access to Personal Information is (A) a purpose of the contract or provided for the purpose of generating revenue, and (B) not
ancillary to the performance of services by such third person for the Company or its subsidiaries or any of their respective employees or customers;
23
(x) (A)
material partnership, joint venture agreement or alliance to which the Company or any of its subsidiaries is a party or (B) revenue or earnings sharing
agreement to which the Company or any of its subsidiaries is a party other than in the case of clause (B) agreements entered in the ordinary course of business that are not individually or in
the aggregate, material to the Company and its subsidiaries, taken as a whole;
(xi) contract
(A) providing for the disposition or acquisition of any assets, business, securities or otherwise outside the ordinary course of business by the Company
or any of its subsidiaries or for consideration in excess of $500,000, or (B) pursuant to which the Company or any of its subsidiaries has any ownership interest in any other person or other
business enterprise, other than other subsidiaries of the Company, that would reasonably be expected to be material to the Company and its subsidiaries, taken as a whole;
(xii) contract
that by its terms calls for, or would reasonably be expected to result in, aggregate payments or consideration or other performance by or to the Company or
any of its subsidiaries of more than $500,000 in calendar year 2015;
(xiii) contract
with a Major Customer or Major Supplier;
(xiv) license
(inbound and outbound), sublicense, development agreement, or other agreement under which the Company or any of its subsidiaries has granted or received the
right to use any Intellectual Property Rights (other than licenses for readily available commercial software with a license fee of no more than $200,000 per year), in each case (i) that are
material to the business of the Company and its subsidiaries; (ii) that require recurring payments; or (iii) that would, following the Closing Date, purport to bind Parent or its
subsidiaries (other than the Company and its subsidiaries) or their respective Intellectual Property Rights;
(xv) contract
providing for the Company or any of its subsidiaries to purchase, obtain or distribute all or substantially all of its requirements for, or all or
substantially all of a third person's output of, any product or service, or providing for the Company or any of its subsidiaries to sell all or substantially all of its output of, or supply all or
substantially all of a third person's requirements for, any product, content or service, including, for the avoidance of doubt, any contracts containing exclusivity or similar provisions restricting
the Company or any of its subsidiaries;
(xvi) contract
incorporating any most-favored-nations clause; or
(xvii) contract
that would, to the Knowledge of the Company, (A) be binding after the Closing upon Parent or Parent's Affiliates (other than the Company and its
Affiliates as of the date hereof) or (B) give the counterparty to such contract the right to terminate such contract or pursue a claim for breach by the Company or its Affiliates party thereto
based upon the acts or omissions of Parent or Parent's Affiliates (other than the Company and its Affiliates as of the date hereof).
Each
contract of the type described in this Section 4.16(a) is referred to herein as a "Company Material
Contract."
(b) Neither
the Company nor any subsidiary of the Company is in breach of or default under the terms of any Company Material Contract where such breach or default would be,
or would reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole. To the Knowledge of the Company, no other party to any Company
Material Contract is in breach of or default under the terms of any Company Material Contract where such breach or default would be, or would reasonably be expected to be, individually or in the
aggregate, material to the Company and its subsidiaries, taken as a whole. Each Company
24
Material
Contract is a valid and binding obligation of the Company and, to the Knowledge of the Company, a valid and binding obligation of each other party thereto. Each Company Material Contract is
in full force and effect, except as would not be, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole; provided
that (i) such enforcement may be subject to applicable bankruptcy, insolvency, reorganization, moratorium or other similar Laws, now or
hereafter in effect, relating to creditors' rights generally and (ii) equitable remedies 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.
Section 4.17 Opinion of Financial Advisor. The Company Board has received the opinion of LUMA
Securities LLC on or prior to the date of this Agreement, to the effect that, as of the date of such
opinion and based upon and subject to the matters stated therein, the cash consideration to be paid to holders of outstanding Common Stock (other than Parent, Acquisition Sub and their respective
Affiliates) in the Offer and the Merger, taken together as a single integrated transaction, pursuant to this Agreement is fair, from a financial point of view, to such holders.
Section 4.18 Brokers. No broker, finder or investment banker other than LUMA Securities LLC is
entitled to any brokerage, finder's or other fee or commission in connection with
the Offer or the Merger based upon arrangements made by or on behalf of the Company. A true, correct and complete copy (including any amendments thereto) of LUMA Securities LLC's engagement
letter has been provided to Parent prior to the date hereof.
Section 4.19 Real Property.
(a) Section 4.19(a) of the Company Disclosure Letter lists all real property owned by the Company and its subsidiaries
(the "Owned Real Property"). The Company or one of its subsidiaries has good and marketable fee title to the Owned Real Property, free and clear of all
Liens other than Permitted Liens.
(b) Section 4.19(b) of the Company Disclosure Letter lists all leases, subleases or other agreements under which the
Company uses or occupies or has the right to use or occupy any real property (collectively, the "Company Leases"). Each Company Lease is a valid and
binding obligation of the Company and, to the Knowledge of the Company, a valid and binding obligation of each other party thereto. Each Company Lease is not subject to any Lien that is not a
Permitted Lien and is in full force and effect, and neither the Company nor any of its subsidiaries is in breach of or default under, or has received written notice of any breach of or default under,
any Company Lease, and, to the Knowledge of the Company, no event has occurred that with notice or lapse of time or both would constitute a breach or default thereunder by any other party thereto,
except, in each case, as is not and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole. The Company is properly
calculating and sharing sublease profits as required under any Company Lease. The security deposits under each Company Leases are current, due to Company as stated in the applicable Company Lease and
not subject to any claims.
Section 4.20 Insurance. Section 4.20 of the Company
Disclosure Letter contains a true and complete listing of the policies of
insurance maintained by or on behalf of Company and its subsidiaries. Except as would not be, or would not reasonably be expected to be, individually or in the aggregate, material to the Company or
its subsidiaries, taken as a whole, all material policies of insurance maintained by the Company or any of its subsidiaries are in full force and effect, no notice of cancellation has been received
with respect to such policies (other than in connection with ordinary renewals) and there is no existing default or event which, with the giving of notice of lapse of time or both, would constitute a
default, by any insured thereunder. As of the date hereof, (a) there is no material claim by the Company or any of its subsidiaries pending under any such policies as to which
25
coverage
has been denied or disputed in writing by the applicable insurer, and (b) neither the Company nor any of its subsidiaries has received either any written notice of any violation of, or
non-compliance with, any insurance policy or any written notice that could reasonably be expected to be followed by a written notice of cancellation or non-renewal of any insurance policy. All
premiums due and payable under all such policies have been paid and the Company or a subsidiary of the Company, as applicable, is in compliance with the terms and conditions of such policies other
than non-compliance which would not be, and would not reasonably be expected to be, individually or in the aggregate, material to the Company and its subsidiaries, taken as a whole.
Section 4.21 Environmental, Health and Safety.
(a) The
Company and its subsidiaries are, and have been, in material compliance with all applicable Environmental Laws and Health and Safety Laws.
(b) The
Company and its subsidiaries have obtained, maintained and are, and have been, operating in material compliance with all Environmental Permits required for the
operation of the business of the Company and its subsidiaries. Section 4.21(b) of the Company Disclosure Letter contains a list of all
Environmental Permits held by the Company or its subsidiaries.
(c) The
Company and its subsidiaries have taken all material actions that are required to provide each and every employee with a safe and healthy workplace as required by
any applicable Health and Safety Law.
(d) The
Company and its subsidiaries are not subject to any pending or, to the Knowledge of the Company, threatened, Environmental Claim, which could reasonably be expected
to result in the Company or any of its subsidiaries incurring material liabilities under Environmental Laws or Health and Safety Laws.
(e) There
has been no release of Hazardous Substances by the Company or any of its subsidiaries or, to the Knowledge of the Company any other Person, at the Real Property
or, to the Knowledge of the Company, at any formerly owned, leased or operated real property, in each case that requires investigation, assessment, cleanup, remediation or other corrective action and
that could reasonably be expected to result in the Company or any of its subsidiaries incurring material liabilities under Environmental Laws.
(f) To
Knowledge of the Company, there has been no indoor air quality or indoor water quality that fails to meet applicable commercial risk-based screening levels for
commercial buildings at the Real Property or at any formerly owned, leased or operated real property.
(g) To
the Knowledge of the Company, there are no facts, circumstances or conditions that exist with respect to the Company or any of its subsidiaries, the Real Property or
any property formerly owned, leased or operated by the Company or any of its subsidiaries or any property to which the Company or any of its subsidiaries arranged for the disposal or treatment of
Hazardous Substances that could reasonably be expected to result in the Company or any of its subsidiaries incurring material liabilities under Environmental Laws or Health and Safety Laws.
(h) Neither
the Company nor any of its subsidiaries have provided an indemnification or agreement to indemnify any person for any conditions or claims involving the release
or existence of any contamination or any obligation under any Environmental Laws or Health and Safety Law that remains legally binding or is otherwise outstanding.
(i) The
Company and its subsidiaries have made available to Parent copies of all material environmental assessments, investigations, audits, studies, reports and analyses
relating to the Real Property or formerly owned, leased or operated real property, and all material documents and correspondence in each case related to any current or outstanding material liabilities
under Environmental Laws or Health and Safety Laws to the extent such documentation is in the Company's or any subsidiaries' possession, custody or control.
26
(j) There
are no matters relating to the environment, whether or not constituting a violation of Law, that adversely impact the ability of the Company and its subsidiaries
to conduct business in any material respect, or increase the cost of maintenance or operations in any material respect, at any of its Real Property, including indoor air quality failing to meet any
applicable commercial indoor air quality standard or drinking water failing to meet any applicable drinking water standard (including Environmental Protection Agency risk-based screening levels for
commercial buildings).
Section 4.22 Customers and Suppliers.
(a) Section 4.22(a) of the Company Disclosure Letter sets forth the names of the
thirty-five (35) largest customers of the Company and its subsidiaries measured by dollar value of goods or services sold since January 1, 2014 through the date of this Agreement,
except in the case of customers acquired through an acquisition of a business closing after January 1, 2014, the value shall be the projected dollar value of the goods or services sold since
January 1, 2014 through the date of this Agreement based on the actual dollar value of goods or services sold from the closing date of such acquisition through the date of this Agreement (each,
a "Major Customer"). None of the Major Customers has notified the Company or any of its subsidiaries in writing that it is (or is considering)
(i) canceling or terminating its relationship with the Company or any of its subsidiaries or (ii) materially and adversely modifying its relationship with the Company or any of its
subsidiaries.
(b) Section 4.22(b) of the Company Disclosure Letter sets forth the names of the
thirty-five (35) largest suppliers of the Company and its subsidiaries measured by dollar value of goods or services purchased since January 1, 2014 through the date of this
Agreement, except in the case of suppliers acquired through an acquisition of a business closing after January 1, 2014, the value shall be the projected dollar value of the goods or services
purchased since January 1, 2014 through the date of this Agreement based on the actual dollar value of goods or services purchased from the closing date of such acquisition through the date of
this Agreement (each, a "Major Supplier"). None of the Major Suppliers has notified the Company or any of its subsidiaries in writing that it is (or is
considering) (i) canceling
or terminating its relationship with the Company or any of its subsidiaries or (ii) materially and adversely modifying its relationship with the Company or any of its subsidiaries.
Section 4.23 Anti-Corruption and Anti-Bribery Laws. None of the Company, any of its subsidiaries, or,
to the Company's Knowledge, any of their respective directors, officers, agents, employees, consultants, or
other representatives (in each case acting in their capacities as such) has in connection with the operation of their respective businesses directly or indirectly (a) used any corporate funds
for unlawful contributions, gifts, entertainment or other unlawful expenses relating to political activity, (b) offered, promised, paid or delivered any fee, commission or other sum of money or
item of value, however characterized, to any finder, agent or other party acting on behalf of or under the auspices of a governmental or political employee or official or governmental or political
entity, political agency, department, enterprise or instrumentality, in the United States or any other country, that was illegal under any applicable Law, (c) made any payment to any customer
or supplier, or to any officer, director, partner, employee or agent of any such customer or supplier, for the unlawful sharing of fees to any such customer or supplier or any such officer, director,
partner, employee or agent for the unlawful rebating of charges, (d) engaged in any other unlawful reciprocal practice, or made any other unlawful payment or given any other unlawful
consideration to any such customer or supplier or any such officer, director, partner, employee or agent or (e) taken any action or made any omission in violation of any applicable Law
governing imports into or exports from the United States or any foreign country, or relating to economic sanctions or embargoes, corrupt practices, money laundering, or compliance with unsanctioned
foreign boycotts, or any regulation, ruling, rule, order, decision, writ, judgment, injunction or decree of any Governmental Authority issued pursuant thereto, in each case,
27
except
as has not been, and would not reasonably be expected to be material to the Company and its subsidiaries taken as a whole.
Section 4.24 Schedule 14D-9. The information supplied by the Company expressly for inclusion or
incorporation by reference in the Offer Documents (and any amendment thereof or supplement
thereto), will not, when filed with the SEC, when distributed or disseminated to the Company's stockholders, and at the Expiration Date, 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 made therein, in light of the circumstances under which they were made, not misleading. The
Schedule 14D-9, and all amendments thereto, and any other document required to be filed with the SEC or required to be distributed or otherwise disseminated to the Company's stockholders in
connection with the transactions contemplated hereby, will comply as to form in all material respects with the provisions of all applicable federal securities Laws, as the case may be, and will not,
when filed with the SEC, when distributed or disseminated to the Company's stockholders, and at the Expiration Date, 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 made therein, in light of the circumstances under which they were made, not misleading, except that the Company makes no
representation or warranty with respect to statements made in the Schedule 14D-9 or any other document filed or distributed by the Company based on information furnished by Parent or
Acquisition Sub in writing expressly for inclusion therein.
Section 4.25 Takeover Statute. Prior to the date of this Agreement, the Company Board has taken all
necessary actions so that the restrictions on business combinations set forth in
Section 203 of the DGCL and any other similar applicable Law are not applicable to this Agreement, the Offer, the Merger and the transactions contemplated hereby. To the Knowledge of the
Company, no other state takeover statute or similar statute or regulation applies to or purports to apply to this Agreement, the Offer or the Merger or the other transactions contemplated hereby.
Section 4.26 No Other Representations or Warranties. Except for the representations and warranties
contained in this Article IV as of the date hereof and as
contemplated by subsection (c)(ii) of Annex I, neither the Company nor any other person on behalf of the Company makes any express or
implied representation or warranty with respect to the Company or any of its subsidiaries or their respective businesses or with respect to any other information provided to Parent or Acquisition Sub
in connection with the transactions contemplated hereby, including the accuracy, completeness or currency thereof.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PARENT AND ACQUISITION SUB
Parent and Acquisition Sub hereby jointly and severally represent and warrant to the Company as of the date hereof as follows:
Section 5.1 Organization and Qualification; Subsidiaries.
Each of Parent and Acquisition Sub is a corporation or legal entity duly organized or formed, validly existing and in good standing, under the laws of its jurisdiction of organization or
formation and has the requisite corporate power and authority and all necessary governmental approvals to own, lease and operate its properties and to carry on its business as it is now being
conducted, except where (a) the failure to have such power or authority would not be material to Parent and its subsidiaries, taken as a whole and (b) the failure to have such
governmental approvals would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect. Each of Parent and Acquisition Sub is duly
qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the ownership, leasing or operation of its properties or assets or conduct of its
business requires such qualification or licensing, except for such failures to be so qualified or licensed
28
and
in good standing that would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section 5.2 Certificate of Incorporation, By-Laws, and Other Organizational Documents.
Parent has made available to the Company a complete and correct copy of the certificate of incorporation and by-laws, each as amended to date, of each of Parent and Acquisition Sub
(collectively, "Parent Organizational Documents"). The Parent Organizational Documents are in full force and effect. None of Parent, Acquisition Sub or,
to the Knowledge of Parent, the other parties thereto are in violation of any provision of the Parent Organizational Documents, as applicable, except as would not have, individually or in the
aggregate, a Parent Material Adverse Effect.
Section 5.3 Authority Relative to Agreement.
Each of Parent and Acquisition Sub has all necessary power and authority to execute and deliver this Agreement, to perform its obligations hereunder and to consummate the Offer, the
Merger and the other transactions contemplated hereby. The execution and delivery of this Agreement by Parent and Acquisition Sub and the consummation by Parent and Acquisition Sub of the Offer, the
Merger and the other transactions contemplated hereby have been duly and validly authorized by all necessary corporate action of Parent and Acquisition Sub, and no other corporate proceedings on the
part of Parent or Acquisition Sub or their respective stockholders are necessary to authorize the execution and delivery of this Agreement or to consummate the Offer, the Merger and the other
transactions contemplated hereby (other than, with respect to the Merger, (a) the adoption of this Agreement by Parent in its capacity as the sole stockholder of Acquisition Sub, which adoption
shall occur immediately following the execution of this Agreement, and (b) the filing of the Certificate of Merger with the Secretary of State). This Agreement has been duly and validly
executed and delivered by Parent and Acquisition Sub and, assuming the due authorization, execution and delivery by the Company, this Agreement constitutes a legal, valid and binding obligation of
Parent and Acquisition Sub, enforceable against Parent and Acquisition Sub in accordance with its terms (except as such enforceability may be limited by bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and other similar laws of general applicability relating to or affecting creditor's rights, and by general equitable principles).
Section 5.4 No Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by Parent and Acquisition Sub does not, and the performance of this Agreement by Parent and Acquisition Sub will not,
(i) conflict with or violate the Parent Organizational Documents, (ii) assuming the consents, approvals and authorizations specified in Section 5.4(b) have been received and the waiting
periods referred to therein have expired, and any condition precedent to such consent,
approval, authorization, or waiver has been satisfied, conflict with or violate any Law applicable to Parent or Acquisition Sub or by which any property or asset of Parent or Acquisition Sub is bound
or affected, or (iii) result in any breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the creation of a Lien on any property or asset of Parent or Acquisition Sub pursuant to, any note, bond, mortgage, indenture or
credit agreement, or any other contract, agreement, lease, license, permit, franchise or other instrument or obligation to which Parent or Acquisition Sub is a party or by which Parent or Acquisition
Sub or any property or asset of Parent or Acquisition Sub is bound or affected, other than, in the case of clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or
other occurrences of the type referred to above which would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
(b) The
execution and delivery of this Agreement by Parent and Acquisition Sub do not, and the consummation by Parent and Acquisition Sub of the transactions contemplated by
this Agreement will not, require any consent, approval, authorization, waiver or permit of, or filing with
29
or
notification to, any Governmental Authority, except for applicable requirements of the Exchange Act, the Securities Act, Blue Sky Laws and the HSR Act, filing and recordation of appropriate merger
documents as required by the DGCL and the rules of the NYSE or other stock exchange, if applicable, and except where failure to obtain such consents, approvals, authorizations or permits, or to make
such filings or notifications, would not have, and would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section 5.5 Absence of Litigation. As of the date hereof, there is no claim, action, proceeding, or
investigation pending or, to the Knowledge of Parent, threatened against either Parent or
Acquisition Sub or any of their respective properties or assets at law or in equity, and there are no Orders before any arbitrator or Governmental Authority, in each case as would have, or would
reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.
Section 5.6 Capitalization of Acquisition Sub.
As of the date of this Agreement, the authorized share capital of Acquisition Sub consists of 100 shares, par value $0.01 per share, all of which are validly issued and outstanding. All
of the issued and outstanding share capital of Acquisition Sub is, and at the Effective Time will be, owned by Parent, a person of which Parent is a direct or indirect wholly owned subsidiary, or a
direct or indirect wholly owned subsidiary of such a person. Acquisition Sub does not have outstanding any option, warrant, right or other agreement pursuant to which any person other than Parent may
acquire any equity interest of Acquisition Sub. Acquisition Sub was formed solely for the purpose of engaging in the transactions contemplated hereby, and it has not conducted any business prior to
the date hereof and has no, and prior to the Effective Time will have no, assets, liabilities or obligations of any nature other than those incident to its formation and pursuant to this Agreement and
the Offer, the Merger and the other transactions contemplated by this Agreement.
Section 5.7 Brokers.
Other than Goldman, Sachs & Co., no broker, finder or investment banker is entitled to any brokerage, finder's or other fee or commission in connection with the Offer and
the Merger based upon arrangements made by or on behalf of Parent.
Section 5.8 Funds.
Parent and Acquisition Sub will have as of the Acceptance Time and the Effective Time, sufficient cash on hand for the satisfaction of all of Parent's and Acquisition Sub's obligations
under this Agreement, including the payment of the aggregate Offer Price and the Total Common Merger Consideration and the consideration in respect of the Equity Awards, and to pay all related fees
and expenses and any other amounts contemplated by this Agreement to be paid by Parent or Acquisition Sub. Parent's and Acquisition Sub's obligations hereunder are not subject to a condition regarding
Parent's or Acquisition Sub's obtaining of funds to consummate the transactions contemplated by this Agreement.
Section 5.9 Parent Ownership of Company Securities; DGCL Section 203.
Parent and its subsidiaries do not "own" (as defined in Section 203 of the DGCL) any shares of Common Stock or other securities of the Company or any options, warrants or other
rights to acquire Common Stock or other securities of, or any other economic interest (through derivative securities or otherwise) in, the Company. Neither Parent nor any of its "affiliates" or
"associates"(each as defined in Section 203 of the DGCL) is, or has been at any time with the last three years, an "interested stockholder" as defined in Section 203 of the DGCL. Neither
Parent nor any of its subsidiaries has taken, or authorized or permitted any its Representatives to take, any action that would cause Parent or any of its "affiliates" or "associates" (each as defined
in Section 203 of the DGCL) thereof to be deemed an "interested stockholder" as defined in Section 203 of the DGCL or otherwise render Section 251(h) of the DGCL inapplicable to
the Merger.
Section 5.10 Offer Documents.
The information supplied by Parent or Acquisition Sub expressly for inclusion or incorporation by reference in the Schedule 14D-9 (and any amendment thereof or supplement
thereto), will not, when filed with the SEC, when distributed or disseminated to the
30
Company's
stockholders, and at the Expiration Date, 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 made therein, in light of the circumstances under which they were made, not misleading. The Offer Documents, and all amendments thereto, and any other document required to be filed with the
SEC or required to be distributed or otherwise disseminated to the Company's stockholders by Parent or Acquisition Sub in connection with the transactions contemplated hereby, will comply as to form
in all material respects with the provisions of Rule 14d-3 of the Exchange Act or any other applicable federal securities laws, as the case may be, and will not, when filed with the SEC, when
distributed or disseminated to the Company's stockholders, and at the Expiration Date, 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 made therein, in light of the circumstances under which they were made, not misleading, except that Parent and Acquisition Sub make no representation or
warranty with respect to statements made in the Offer Documents or any other document filed or distributed by
Parent or Acquisition Sub based on information furnished by or on behalf of the Company in writing expressly for inclusion therein.
Section 5.11 Acknowledgement of Disclaimer of Other Representations and Warranties.
Except for the representations and warranties contained in Article IV or in any certificate delivered pursuant to this Agreement to Parent or Acquisition Sub in connection with
the consummation of the Offer or the Merger, each of Parent and Acquisition Sub acknowledges that neither the Company nor any person on behalf of the Company makes any other express or implied
representation or warranty with respect to the Company or any of its subsidiaries or their respective businesses or with respect to any other information made available to Parent or Acquisition Sub in
connection with the transactions contemplated by this Agreement. Neither the Company nor any other person has made or is making any representation or warranty with respect to the distribution to
Parent or Acquisition Sub, or Parent's or Acquisition Sub's use of, any such information, including any information, documents, projections, forecasts or other material made available to Parent or
Acquisition Sub or their respective Representatives in the Data Room or management presentations or otherwise, unless, and then only to the extent of the representations and warranties, contained in Article IV.
ARTICLE VI
COVENANTS AND AGREEMENTS
Section 6.1 Conduct of Business by the Company Pending the Merger.
The Company covenants and agrees that, between the date of this Agreement and the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, except (i) as required by applicable Law, (ii) as consented to in writing by Parent, which consent shall not be
unreasonably withheld, conditioned or delayed, (iii) as may be expressly required or expressly contemplated pursuant to this Agreement or (iv) as set forth in Section 6.1 of the
Company Disclosure Letter, the business of the Company and its subsidiaries shall be conducted only in, and such entities shall not take any action except in the ordinary course of business and in a
manner consistent with past practice; and the Company and its subsidiaries shall use their reasonable best efforts to (a) preserve intact the Company's business organization and the assets of
the Company and its subsidiaries, (b) to keep available the services of their current officers, key employees and key consultants, and (c) to maintain existing relationships and goodwill
with Governmental Authorities, material customers, material suppliers, material creditors and material lessors and other persons with which the Company or any of its subsidiaries has significant
business relations. Furthermore, the Company agrees with Parent that, except (1) as required by applicable Law, (2) as consented to in writing by Parent, which consent shall not be
unreasonably withheld, conditioned or delayed, (3) as may be expressly required or expressly contemplated pursuant
31
to
this Agreement or (4) as set forth in Section 6.1 of the Company Disclosure Letter, the Company shall not:
(a) amend
or otherwise change, or permit any of its subsidiaries to amend or otherwise change, the Certificate of Incorporation or By-laws of the Company or such similar
applicable organizational documents of any of its subsidiaries;
(b) split,
combine, subdivide, reclassify, purchase, redeem, repurchase or otherwise acquire, issue, sell, pledge, dispose, encumber or grant any shares of its or its
subsidiaries' capital stock, any right to receive cash based on the value of its or its subsidiaries' capital stock, or any options, warrants, convertible or exchangeable securities, stock-based
performance units, equity awards denominated in shares of the Company's capital stock or other rights of any kind to acquire any shares of its or its subsidiaries' capital stock or other rights to
receive any economic interest of a nature accruing to the holders of Common Stock; provided, however,
that (i) the Company may issue shares upon exercise or settlement of any Equity Award outstanding as of the date hereof, and (ii) the Company may acquire shares of capital stock in
connection with tax withholdings and exercise price settlements upon the exercise of Company Options and vesting of Company RSU Awards, in each case, existing on the date hereof;
(c) declare,
set aside, authorize, make or pay any dividend or other distribution, payable in cash, stock, property or otherwise, with respect to the Company's or any of its
subsidiaries' capital stock, other than dividends or other distributions paid by any direct or indirect wholly-owned subsidiary of the Company to the Company or any wholly-owned subsidiary of the
Company;
(d) except
as required pursuant to any Company Benefit Plan in effect as of the date hereof or as required by applicable Law, (i) increase the compensation or other
benefits payable or to become payable to directors, executive officers, employees or independent contractors of the Company or any of its subsidiaries, (ii) grant any severance or termination
pay to, or enter into any severance agreement with any director, executive officer, employee or independent contractor of the Company or any of its subsidiaries, other than payments of severance
benefits in accordance with the Company Benefit Plans, as in effect as of the date hereof and set forth on Section 4.12(a) of the Company
Disclosure Letter, (iii) enter into any employment, severance, retention or change of control agreement with any employee or new hire of the Company or any of its subsidiaries (except for
employment agreements on customary terms that are terminable on less than thirty (30) days' notice without payment of severance benefits or penalty or similar payments),
(iv) establish, adopt, enter into, amend or terminate any Company Benefit Plan or other plan, trust, fund, policy, agreement or arrangement for the benefit of any current or former directors,
officers, employees or independent contractors or any of their beneficiaries, except for amendments in the ordinary course of business consistent with past practice that do not in any manner
materially increase the cost to the Company or its subsidiaries, (v) take any action to fund in a nonqualified trust the payment of compensation or benefits under any Company Benefit Plan,
(vi) adopt, enter into, establish, amend or terminate any collective bargaining, works council or similar agreement or other arrangement relating to a union, works council, employee
representative group or organized employees of the Company or any of its subsidiaries, (vii) terminate the employment of any executive officer of the Company, other than for cause, or
(viii) hire or promote any employee other than hires or promotions in the ordinary course of business consistent with past practice below the level of vice president with a total annual cash
compensation (base salary plus annual target bonus opportunity) below $250,000;
(e) grant,
confer or award options, convertible securities, restricted stock, restricted stock units or other rights to acquire any of its or its subsidiaries' capital stock
or any right to receive cash based on the value of its subsidiaries' capital stock, or take any action not otherwise expressly contemplated by this Agreement to accelerate the vesting of or cause to
be exercisable any
32
otherwise
unvested or unexercisable option or other equity or equity-based award (except as otherwise provided by the terms of any unexercisable Company Options or other Equity Awards outstanding on
the date hereof and set forth on Section 4.3(b) of the Company Disclosure Letter);
(f) acquire
or permit its subsidiaries to acquire (including by merger, consolidation, or acquisition of stock or assets) any entity, business or material portion of the
assets of any person;
(g) (i)
incur any indebtedness for borrowed money, or issue or sell any debt securities or warrants or other rights to acquire any debt securities of the Company, except for
(A) debt incurred pursuant to the Credit Agreement in the ordinary course of business consistent with past practice, and in no event in excess of $1,000,000 in the aggregate, and (B) any
indebtedness among the Company and its wholly owned subsidiaries, or (ii) redeem, repurchase, prepay, defease, guarantee, cancel or otherwise acquire for value any such indebtedness, debt
securities or warrants or other rights;
(h) (i)
terminate, modify or amend any Company Material Contract or material Company Lease other than the expiration or renewal of any Company Material Contract or material
Company Lease in accordance with its terms, or enter into any contract, agreement, or arrangement that would have been a Company Material Contract or material Company Lease if entered into prior to
the date hereof, (ii) waive in any material respect any term of, or waive any material default under any Material Contract, or (iii) enter into any contract which contains a change of
control or similar provision that would require a payment to the other party or parties thereto in connection with the Offer Closing, the Merger, or the other transactions contemplated herein
(including in combination with any other event or circumstance);
(i) make
any material change to its methods of accounting for financial accounting purposes in effect at December 31, 2014, except (i) as required by GAAP (or
any interpretation thereof), Regulation S-X of the Exchange Act or a Governmental Authority or quasi-Governmental Authority (including the Financial Accounting Standards Board or any similar
organization), or (ii) as required by a change in applicable Law;
(j) except
for transactions among the Company and its wholly-owned subsidiaries or among the Company's wholly-owned subsidiaries, sell, lease, license, transfer, exchange or
swap, mortgage or otherwise encumber or subject to any Lien (other than Permitted Liens) or otherwise dispose of any material portion of its properties or assets, other than advertising inventory in
the ordinary course of business consistent with past practice;
(k) make
any loans, advances or capital contributions to or investments in any other person (other than its wholly-owned subsidiaries) in excess of $500,000 in the
aggregate, or form any subsidiary;
(l) except
to the extent otherwise required by applicable Law, make or change or revoke any material Tax election, change any existing or implement new transfer price
methods, change any method of Tax accounting, change any Tax accounting period, file any material amended Tax Return, make or change any method in which the Company and its subsidiaries bill, withhold
or surcharge any material Taxes to its customers with respect to Company Products in the ordinary course of business, settle or compromise any audit or proceeding relating to a material amount of
Taxes, enter into any closing
agreement within the meaning of Section 7121 of the Code (or any similar provision of state, local or non-U.S. Law) with respect to any material Tax, or surrender any claim for a refund of a
material amount of Taxes;
(m) make
or agree to make, or permit any of its subsidiaries to make or agree to make, capital expenditures totaling in the aggregate more than $500,000;
33
(n) adopt
or enter into, or permit to be adopted or entered into, a plan of complete or partial liquidation, dissolution, merger, consolidation, restructuring,
recapitalization or other reorganization of the Company or any of its subsidiaries, other than the Merger;
(o) settle,
pay, discharge or satisfy any claim, action, suit, proceeding or investigation against or regarding the Company or any of its subsidiaries, whether civil,
criminal, administrative or investigative, other than routine immaterial matters in the ordinary course of business or settlements that involve only the payment of monetary damages not in excess of
$100,000 individually or $500,000 in the aggregate (excluding from such dollar thresholds amounts covered by any third party indemnification provision in favor of the Company or any of its
subsidiaries to the extent supported by available escrowed funds or covered by any insurance policy of the Company or any of its subsidiaries);
(p) permit
to lapse or intentionally cancel any material Intellectual Property Rights of the Company and any of its subsidiaries, except Intellectual Property Rights which
the Company reasonably determines no longer have commercial value;
(q) amend
in a manner that adversely impacts in any material respect the ability to conduct its business, or allow to lapse, any material Company Permits;
(r) fail
to maintain in full force and effect insurance policies of the Company and its properties, businesses, assets and operations in a form and amount consistent with
past practice in all material respects;
(s) take,
or omit to take (or permit any of its subsidiaries to take, or omit to take), any action which would reasonably be expected to cause a default or event of default
under the Credit Agreement;
(t) make
any change to its privacy or data security policies or practices other than changes in the ordinary course of business that are immaterial to the Company or any of
its subsidiaries; or
(u) announce
an intention to enter into, authorize or enter into, or permit any of its subsidiaries to authorize or enter into, any written agreement or otherwise make any
commitment to do any of the foregoing.
Section 6.2 Appropriate Action; Consents; Filings.
(a) Subject
to Section 6.4 and the terms and conditions of this Agreement, the parties hereto will cooperate with each
other and use their respective reasonable best efforts to take, or cause to be taken, all actions, and to do, or cause to be done, and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make effective the transactions contemplated hereby as soon as practicable and to cause the conditions to the Offer and the Merger set forth in Annex I and Article VII to be satisfied, including (i) the obtaining and
maintaining of all actions, non-actions, consents, clearances, waivers and approvals from Governmental Authorities or other third persons (including for the avoidance of doubt counterparties to the
Company Leases) necessary or advisable in connection with the consummation of the transactions contemplated by this Agreement, and the making of all registrations and filings (including filings with
Governmental Authorities, if any) and the taking of all reasonable or customary steps in each case as may be necessary or advisable to obtain an approval from, or to avoid an action or proceeding by,
any Governmental Authority or other third person in connection with the consummation of the transactions contemplated by this Agreement, (ii) the defending or contesting of any claims, actions,
investigations, lawsuits or other legal proceedings, whether judicial or administrative, challenging this Agreement or the consummation of the transactions performed or consummated by such party in
accordance with the terms of this Agreement, including seeking to have any stay or temporary restraining order entered by any court
34
or
other Governmental Authority vacated or reversed and (iii) the execution and delivery of any additional instruments necessary to consummate the Offer and the Merger and other transactions to
be performed or consummated by such party in accordance with the terms of this Agreement and to carry out fully the purposes of this Agreement. Each of the parties hereto shall promptly (and in no
event later than ten (10) Business Days following the date that this Agreement is executed) make its
respective filings under the HSR Act with respect to the transactions contemplated hereby. In addition, the parties shall mutually agree to make any and all other filings required pursuant to other
Antitrust Laws as promptly as reasonably practicable following the date that this Agreement is executed.
(b) Each
of Parent, Acquisition Sub and the Company agree to use reasonable best efforts to take (and to cause their subsidiaries to take) promptly all steps necessary to
avoid or eliminate each and every impediment and obtain all consents under any Antitrust Laws that may be required by any foreign or U.S. federal, state or local Governmental Authority, in each case
with competent jurisdiction, so as to enable the parties to close the transactions contemplated by this Agreement as promptly as practicable. In no event, however, shall Parent, Acquisition Sub or any
of their respective Affiliates be obligated to divest or hold separate any business or assets in connection with the consummation of the transactions contemplated by this Agreement, agree to any
condition, restriction or limitation with respect to Parent, Acquisition Sub or any of their respective Affiliates or any of their respective assets or operations, or, pay any money to any Person or
offer or grant other financial or other accommodations to any Person in connection with their obligations under this Section. Each of Parent, Acquisition Sub and the Company shall respond as promptly
as practicable to any inquiries received from any Governmental Authority under any Antitrust Laws for additional information or documentation and to all inquiries and requests received from either
Governmental Authority. Notwithstanding anything to the contrary in this Agreement, neither the Company nor any of its subsidiaries shall, without the written consent of Parent, offer or agree to
divest, license, hold separate (including by trust or otherwise) or otherwise commit any of the Company, Parent, Acquisition Sub or any of their respective subsidiaries to take any action that limits
any freedom of action with respect to their ability to retain or operate any of their businesses, services or assets.
(c) The
Company shall give (or shall cause its respective subsidiaries to give) any notices to third parties and the Company shall use its reasonable best efforts to, and
Parent shall use and cause each of its subsidiaries to use its reasonable best efforts to cooperate with the Company in its efforts to, obtain any third party consents not covered by
paragraphs (a) and (b) above that are necessary, proper or advisable to consummate the Offer or the Merger; provided that none of the
Company, Parent or any of their respective subsidiaries shall be required to make any payments to a third party to obtain any consent or approval of such third party prior to the Acceptance Time, and
shall not agree to make any such payments without Parent's prior written consent. Each of the parties hereto will (i) keep the others reasonably informed of any developments with any
Governmental Authority in respect of any filings, investigation or inquiry concerning the Offer or the Merger, (ii) furnish to the other such necessary information and reasonable assistance as
the other may request in connection with the preparation of any required governmental filings or submissions, and (iii) cooperate in responding to any inquiry from a Governmental Authority,
including immediately informing the other party of such inquiry, consulting in advance before making any presentations or submissions to a Governmental Authority, and supplying each other with copies
of all material correspondence, filings or communications between either party and any Governmental Authority with respect to this Agreement. Each party shall promptly inform the other parties of any
oral communication with any Governmental Authority regarding any filings therewith or the transactions contemplated hereby. Each party agrees not to initiate any meeting or discussion, either in
person or by telephone, with any Governmental Authority in connection with the transactions contemplated hereby unless it consults with the other party in advance and
35
gives
the other party the opportunity to attend any meetings, or to participate in any communications with, a Governmental Authority to the extent permitted by such Governmental Authority.
Section 6.3 Access to Information; Confidentiality.
(a) From
the date hereof to the Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, to the extent permitted by applicable Law and notwithstanding anything to
the contrary in the Confidentiality Agreement, the Company
will (i) provide to Parent and its officers, directors, employees, accountants, consultants, legal counsel, investment bankers, agents and other representatives (collectively,
"Representatives") reasonable access during normal business hours to the Company's employees, properties, books, commitments, contracts and records and
other information (including Tax Returns) as Parent may reasonably request regarding the business, assets, liabilities, employees and other aspects of the Company and instruct the Company's
independent accountants to provide access to their work papers and such other information as Parent and Acquisition Sub may reasonably request, (ii) permit Parent and Acquisition Sub to make
such inspections as they reasonably require and (iii) furnish promptly to Parent and Acquisition Sub a copy of each report, schedule and other document filed or received by the Company during
such period pursuant to the requirements of the federal or state securities Laws that is not otherwise made publicly available on the SEC's Electronic Data-Gathering, Analysis and Retrieval system; provided, however, that the Company shall not be required to provide access to any information or
documents which would, in the reasonable judgment of the Company, (A) constitute a waiver of the attorney-client privilege, work product doctrine or other privilege held by the Company,
(B) would violate an existing confidentiality obligation to or agreement with any person; or (C) otherwise violate any applicable Laws; provided, however, that in the case of clauses (A) and (B), the Company shall (1) advise
Parent of the nature of any information or documents withheld by the Company or any of its subsidiaries; (2) use its reasonable best efforts to obtain any required consents (such as the
redaction of identifying or confidential information, entry into a joint defense agreement or other agreement or by providing such access, inspections, data or other information solely to outside
counsel to avoid the loss of attorney-client privilege) as are necessary to provide such access, inspections, data or other information to Parent or Acquisition Sub in compliance with applicable Laws;
and (3) otherwise use its reasonable best efforts to institute appropriate substitute disclosure arrangements, to the extent practicable in the circumstances. Any investigation conducted
pursuant to the access contemplated by this Section 6.3 shall be conducted in a manner that does not unreasonably interfere with the conduct of
the business of the Company and its subsidiaries or result in damage or destruction of any property or assets of the Company or any of its subsidiaries. Any access to the Company's properties shall be
subject to the Company's reasonable security measures and insurance requirements and shall not include the right to perform invasive testing.
(b) The
information provided pursuant to this Section 6.3 shall be used solely for the purpose of the Merger and the
transactions contemplated hereby. The parties shall comply with, and shall cause their respective Representatives to comply with, all of their respective obligations under the Confidentiality
Agreement, subject to Section 6.4(a).
Section 6.4 Solicitation; Change of Recommendation.
(a) Except
as otherwise provided for in this Agreement, the Company agrees that it and its subsidiaries shall, and that it shall use its reasonable best efforts to cause its
and their respective Representatives to, immediately cease any discussions or negotiations with any persons that may be ongoing with respect to a Competing Proposal and, until the earlier of the
Effective Time or the date, if any, on which this Agreement is terminated pursuant to Section 8.1, not, directly or indirectly:
(i) solicit, initiate or knowingly facilitate or encourage any Competing Proposal;
36
(ii) participate
in any negotiations regarding, or furnish to any person any nonpublic information with respect to, any Competing Proposal; (iii) engage in discussions with any person
with respect to any Competing Proposal; (iv) approve or recommend any Competing Proposal; (v) enter into any letter of intent or similar document or any agreement or commitment providing
for any Competing Proposal; (vi) take any action to make the provisions of any "fair price," "moratorium," "control share acquisition," "business combination" or other similar anti-takeover
statute or regulation (including any transaction under, or a third party becoming an "interested stockholder" under, Section 203 of the DGCL), or any restrictive provision of any applicable
anti-takeover provision in the Restated Certificate of Incorporation or By-laws of the Company, inapplicable to any person other than Parent and its Affiliates or to any transactions constituting or
contemplated by a Competing Proposal; or (vii) resolve or agree to do any of the foregoing. The Company shall promptly after the date hereof instruct each person that has executed a
confidentiality agreement (other than the Confidentiality Agreement) relating to a Competing Proposal or potential Competing Proposal with or for the benefit of the Company promptly to return to the
Company or destroy all information, documents, and materials relating to the Competing Proposal or to the Company or its businesses, operations or affairs heretofore furnished by the Company or any of
its Representatives to such person or any of its Representatives in accordance with the terms of any confidentiality agreement with such person, and shall use reasonable best efforts to enforce, and
not waive without Parent's prior written consent, any standstill or similar provision in any confidentiality or other agreement with such person; provided that if the Company Board determines in good
faith, after consultation with its outside legal advisors, that it would be inconsistent with the
directors' exercise of their fiduciary duties under applicable Law not to do so, the Company may waive any standstill or similar provisions in its agreements to the extent necessary to permit a person
to make, on a confidential basis to the Company Board, a Competing
Proposal, conditioned upon such person agreeing to disclosure of such Competing Proposal to Parent and Acquisition Sub, in each case as contemplated by and subject to compliance with this Section 6.4.
(b) Notwithstanding
the limitations set forth in Section 6.4(a), if the Company receives a bona fide, Competing
Proposal not solicited after the date hereof that did not result from a breach of this Section 6.4 at any time prior to the Acceptance Time which
(i) constitutes a Superior Proposal or (ii) which the Company Board determines in good faith after consultation with the Company's outside legal and financial advisors could reasonably
be expected to result, after the taking of any of the actions referred to in either of clause (x) or (y) below, in a Superior Proposal, the Company may take the following actions:
(x) furnish information to the third party making such Competing Proposal (provided, that substantially concurrently the Company makes available
such information to Parent to the extent such information was not previously made available to Parent) and (y) engage in discussions or negotiations with the third party with respect to the
Competing Proposal, in each case of clauses (x) and (y), if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality
agreement on terms no less favorable in the aggregate to the Company than the Confidentiality Agreement (an "Acceptable Confidentiality Agreement"); provided, however, that as promptly as reasonably practicable following the Company taking such actions
as described in clauses (x) and (y) above, the Company shall provide written notice to Parent of such determination of the Company Board pursuant to clauses (i) or
(ii) above. From and after the execution of this Agreement, the Company shall notify Parent promptly (but in any event within 24 hours) of the receipt of any Competing Proposal, and
(A) if it is in writing, deliver to Parent a copy of such Competing Proposal and any related draft agreements and other written material setting forth the terms and conditions of such Competing
Proposal or (B) if oral, provide to Parent a detailed summary of the material terms and conditions thereof including the identity of the person making such competing proposal. The Company shall
keep Parent reasonably informed on a prompt and timely basis of
37
the
status and material details of any such Competing Proposal and with respect to any material change to the terms of any such Competing Proposal within24 hours of such material change.
(c) Except
as otherwise provided in Section 6.4(d), neither the Company Board nor any committee thereof may
(i) withdraw or withhold, amend, modify or qualify in any manner adverse to Parent or Acquisition Sub the Company Recommendation or make any public announcement inconsistent with the Company
Recommendation, or publicly propose to do any of the foregoing, (ii) approve, adopt, endorse, or recommend any Competing Proposal or any inquiry or proposal that would reasonably be expected to
lead to a Competing Proposal, (iii) following the date any Competing Proposal or any material modification thereto is first made public, sent or given to the stockholders of the Company, fail
to issue a press release that expressly reaffirms the Company Recommendation within four
(4) Business Days following Parent's written request to do so (which request may not be made more than twice with respect to any such Competing Proposal and each material modification thereto),
(iv) fail to include the Company Recommendation in the Schedule 14D-9 or any amendment thereof, or (v) except as expressly contemplated by Section 6.4(f), cause or permit the Company
to enter into any contract, letter of intent, memorandum of understanding, or agreement in principle
regarding or providing for any Competing Proposal (other than an Acceptable Confidentiality Agreement in accordance with the terms hereof) or requiring the Company to abandon, terminate, delay or fail
to consummate the transactions contemplated by this Agreement (any action described in clause (i), (ii), (iii), (iv) or (v), whether taken by the Company, the Company Board or any
committee thereof, being referred to as a "Change of Recommendation").
(d) Notwithstanding
anything to the contrary contained in this Agreement, at any time prior to the Acceptance Time, if (i) an event, fact, circumstance, development,
change or occurrence (an "Intervening Event") that materially affects the business, assets or operations of the Company that is unknown to the Company
Board as of the date of this Agreement and reasonably should not have been known as of the date of this Agreement, becomes known to the Company Board or (ii) the Company receives a Competing
Proposal which the Company Board concludes in good faith, after consultation with outside legal and financial advisors, constitutes a Superior Proposal after giving effect to all of the adjustments to
the terms of this Agreement which may be offered by Parent, the Company Board may effect a Change of Recommendation if the Company Board has concluded in good faith, after consultation with the
Company's outside legal advisors, that the failure of the Company Board to make such Change of Recommendation would be inconsistent with the directors' exercise of their fiduciary duties under
applicable Law; provided, however, that such action may be only be taken (A) if the Company shall
have (x) fully complied with this Section 6.4 and (y) first provided prior written notice to Parent in advance of its intention to
make a Change of Recommendation and the reasons therefor, including the terms of any Competing Proposal with respect to which the Change of Recommendation relates and the identity of the person making
such Competing Proposal (it being understood that the delivery of such notice shall not, in and of itself, be deemed a Change in Recommendation) and (B) at a time that is after the third (3rd)
Business Day following the Company's delivery to Parent of such notice, during which time Parent shall be entitled to deliver to the Company one or more proposals for amendments to this Agreement and,
if requested by Parent, the Company shall negotiate with the Parent in good faith with respect thereto, if the Company Board determines in good faith, after consultation with the Company's outside
legal advisors, taking into account all amendments or revisions to this Agreement proposed by Parent, that the failure of the Company Board to effect such Change of Recommendation still would be
inconsistent with the directors' exercise of their fiduciary duties under applicable Law. Any material amendment to a Competing Proposal to which such Change of Recommendation relates, including any
revision to price, shall require the Company to deliver to Parent a new notice and again comply with the requirements of this Section 6.4(d) with
respect to such revised Competing Proposal.
38
(e) Nothing
in this Section 6.4 shall be deemed to prohibit the Company or its subsidiaries from complying with
Rule 14e-2, Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act (including making any "stop, look and listen" communication or similar
communication of the type contemplated by Rule 14d-9(f) thereunder), or to prohibit the Company from making any
disclosure if the Company Board determines in good faith, after consultation with its outside counsel, that failure to do so would be inconsistent with the directors' exercise of their fiduciary
duties under applicable Law, nor shall any such action be deemed to constitute a breach of the Company's obligations under this Agreement; provided, however, that nothing in this Section 6.4(e) shall permit the Company to effect a Change of
Recommendation (including in compliance with Rule 14e-2, Rule 14d-9 or Item 1012(a) of Regulation M-A promulgated under the Exchange Act or any other applicable Law)
without complying with Section 6.4(d) and, for the avoidance of doubt, any such disclosure that does not reaffirm the Company Recommendation
(other than a "stop, look and listen" communication or similar communication of the type contemplated by Rule 14d-9(f)) shall constitute a Change of Recommendation.
(f) If
at any time prior to the Acceptance Time the Company Board has concluded in good faith after consultation with the Company's outside legal and financial advisors that
a Competing Proposal constitutes a Superior Proposal, then the Company Board may cause the Company to terminate this Agreement in accordance with Section 8.1(h), pay the Company Termination Fee and
enter into a binding written agreement (a "Superior Proposal
Agreement") with respect to such Superior Proposal; provided, however, that such
termination shall only be effective if: (i) the Company (x) shall have fully complied with this Section 6.4 and (y) first
provided prior written notice to Parent in advance of its intention to terminate this Agreement of the terms of the Superior Proposal, including the final draft of the Superior Proposal Agreement and
the identity of the person making such Competing Proposal; (ii) at a time that is after the third (3rd) Business Day following the Company's delivery to Parent of such notice, during which time
Parent shall be entitled to deliver to the Company one or more proposals for amendments to this Agreement and, if requested by Parent, the Company shall negotiate with Parent in good faith with
respect thereto, if the Company Board determines in good faith, after consultation with the Company's outside legal and financial advisors, taking into account all amendments or revisions to this
Agreement proposed by Parent, that the Competing Proposal remains a Superior Proposal; (iii) the Company pays the Company Termination Fee to Parent upon the termination of this Agreement in
accordance with the terms of this Agreement; and (iv) the Company enters into a Superior Proposal Agreement. Any material amendment to a Competing Proposal, including any revision to price,
shall require the Company to deliver to Parent a new notice and again comply with the requirements of this Section 6.4(f) with respect to such
revised Competing Proposal. For the avoidance of doubt, the Company may simultaneously give notice of its intention both to make a Change of Recommendation and to terminate this Agreement to enter
into a Superior Proposal Agreement and the notice and negotiation periods set forth in Section 6.4(d) and this Section 6.4(f) may pass
simultaneously.
(g) As
used in this Agreement, "Competing Proposal" shall mean any bona fide proposal (other than a proposal or offer by
Parent or any of its subsidiaries) for (i) any merger, consolidation, share exchange, business combination, issuance of securities, direct or indirect acquisition of securities,
recapitalization, tender offer, exchange offer or other similar transaction in which (A) a person or "group"(as defined in the Exchange Act and the rules promulgated thereunder) of persons
directly or indirectly acquires, or if consummated in accordance with its terms would acquire, beneficial or record ownership of securities representing more than 10% of the outstanding shares of any
class of voting securities of the Company; or (B) the Company issues securities representing more than 10% of the outstanding shares of any class of voting securities of the Company;
(ii) any direct or indirect sale, lease, exchange, transfer, acquisition or disposition of
39
any
assets of the Company and of the subsidiaries of the Company that constitute or account for (A) more than 10% of the consolidated net revenues of the Company, consolidated net income of the
Company or consolidated book value of the Company; or (B) more than 10% of the fair market value of the assets of the Company; or (iii) any liquidation or dissolution of the Company.
(h) As
used in this Agreement, "Superior Proposal" shall mean a Competing Proposal (with all percentages in the definition of
Competing Proposal increased to fifty percent (50%)) on terms that the Company Board determines in good faith, after consultation with the Company's outside legal and financial advisors, would
(i) offer a higher per share price to the stockholders of the Company than the Offer Price and (ii) be more favorable to the stockholders of the Company than the transactions
contemplated by this Agreement, taking into account all factors the Company Board acting in good faith considers to be appropriate, including (A) any proposal by Parent in writing to amend or
modify the terms hereof, (B) the identity of the person making such Competing Proposal, and (C) the consideration, terms, conditions, timing, likelihood of consummation, financing terms
and legal, financial, and regulatory aspects of such Competing Proposal.
Section 6.5 Directors' and Officers' Indemnification and Insurance.
(a) Parent
and Acquisition Sub agree that all rights to exculpation and indemnification and advancement of expenses for acts or omissions occurring at or prior to the
Effective Time, whether asserted or claimed prior to, at or after the Effective Time (including any matters arising in connection with the transactions contemplated by this Agreement), now existing in
favor of any Indemnitee as provided in the Certificate of Incorporation or the By-laws (or comparable organization documents) of the Company or any of its subsidiaries or in any agreement of the
Company or any of its subsidiaries shall survive the Merger and shall continue in full force and effect with respect to such Indemnitee. Parent and the Surviving Corporation shall (and Parent shall
cause the Surviving Corporation to) (i) indemnify, defend and hold harmless, and advance expenses to, Indemnitees with respect to all acts or omissions by them, in their capacities as such at
any time prior to the Effective Time, to the fullest extent permitted by applicable Law and (ii) not amend, repeal or otherwise modify any provisions of the Certificate of Incorporation or
By-laws (or comparable organizational documents) of the Company or any of its subsidiaries as in effect on the date of this Agreement and any indemnification agreement of the Company or its
subsidiaries as in effect on the date of this Agreement that has been made available to Parent, in any manner that would adversely affect the rights thereunder of any Indemnitees.
(b) Without
limiting the provisions of Section 6.5(a), during the period commencing as of the Effective Time and
ending on the sixth anniversary of the Effective Time, Parent and the Surviving Corporation and its subsidiaries will, to the fullest extent permitted by applicable Law: (i) indemnify, defend
and hold harmless each Indemnitee against and from any costs or expenses (including attorneys' fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in
connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation
arises out of or pertains to: (A) any action or omission or alleged action or omission by such Indemnitee in its capacity as a director or officer of the Company or any of its subsidiaries or
Affiliates occurring at or prior to the Effective Time; or (B) the Offer, the Merger, this Agreement and any transactions contemplated hereby; and (ii) pay in advance of the final
disposition of any such claim, action, suit, proceeding or investigation the expenses (including attorneys' fees) of any Indemnitee upon receipt of an undertaking by or on behalf of such Indemnitee to
repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified. Notwithstanding anything to the contrary contained in this Section 6.5(b) or elsewhere
in this Agreement, neither Parent nor the Surviving Corporation shall (and Parent shall cause the Surviving
Corporation not to) settle or compromise or consent to the
40
entry
of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation for which indemnification may be sought under this Section 6.5(b) unless such
settlement, compromise, consent or termination includes an unconditional release of all Indemnitees from all liability
arising out of such claim, action, suit, proceeding or investigation.
(c) Prior
to the Effective Time, the Company shall or, if the Company is unable to, Parent shall cause the Surviving Corporation as of the Effective Time to, obtain and
fully pay the premium for the non-cancellable extension of the directors' and officers' liability coverage of the Company's existing directors' and officers' insurance policies and the Company's
existing fiduciary liability insurance policies (collectively, the "D&O Insurance"), for a claims reporting or discovery period of at least six
(6) years from and after the Effective Time, with respect to any claim related to any period or time at or prior to the Effective Time from an insurance carrier with the same or better credit
rating as the Company's current insurance carrier with respect to D&O Insurance, with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under
the Company's existing policies as of the date hereof; provided, that the premium for such "tail" insurance shall not exceed 275% of the annual premium
currently paid by the Company. If the Company or the Surviving Corporation for any reason fail to obtain such "tail" insurance policies as of the Effective Time, (i) the Surviving Corporation
shall continue to maintain in effect, for a period of at least six (6) years from and after the Effective Time, the D&O Insurance in place as of the date hereof, with the Company's current
insurance carrier with respect to D&O Insurance or with an insurance carrier with the same or better credit rating as the Company's current insurance carrier with respect to D&O Insurance, with terms,
conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company's existing policies as of the date hereof; or (ii) Parent will provide, or
cause the
Surviving Corporation to provide, for a period of not less than six (6) years after the Effective Time, the Indemnitees who are insured under the Company's D&O Insurance with comparable
insurance that provides coverage for events occurring at or prior to the Effective Time from an insurance carrier with the same or better credit rating as the Company's current insurance carrier with
respect to D&O Insurance, with terms, conditions, retentions and limits of liability that are no less favorable than the coverage provided under the Company's existing policies as of the date hereof; provided, however, that Parent and the Surviving Corporation shall not be required to pay an annual
premium for such insurance in excess of 275% of the annual premium currently paid by the Company for the D&O Insurance; provided, further, that if the
annual premiums of such insurance coverage exceed such amount, Parent or the Surviving Corporation shall be obligated to obtain a
policy with the greatest coverage available, with respect to matters occurring prior to the Effective Time, for a cost not exceeding such amount; provided, further that Parent may from time to time substitute therefor policies of an insurance company
with the same or better credit rating as the Company's current insurance company containing terms (including with respect to coverage and amounts) and conditions (including with respect to deductibles
and exclusions) that are no less favorable to any Indemnitee than the coverage provided under the Company's existing policies as of the date hereof.
(d) The
Indemnitees to whom this Section 6.5 applies shall be third party beneficiaries of this Section 6.5. The provisions of this Section 6.5 are intended to be for the benefit of each
Indemnitee and his or her successors, heirs or representatives. Parent shall pay all reasonable expenses, including reasonable attorneys' fees, that may be incurred by any Indemnitee in enforcing the
indemnity and other obligations provided in this Section 6.5.
(e) The
rights of each Indemnitee under this Section 6.5 shall be in addition to any rights such person may have under
the Certificate of Incorporation or Bylaws of the Company, the Surviving Corporation or any of its subsidiaries, or under any applicable Law or insurance policy or under any agreement of any
Indemnitee with the Company or any of its subsidiaries.
41
(f) Notwithstanding
anything contained in this Section 6.5 or Section 9.6 hereof to the contrary, this Section 6.5 shall survive the consummation of the
Merger indefinitely and shall be binding, jointly and severally, on all successors and assigns of Parent, the Surviving Corporation and its subsidiaries, and shall be enforceable by the Indemnitees
and their successors, heirs or representatives. In the event that Parent or the Surviving Corporation or any of its successors or assigns consolidates with or merges into any other person and shall
not be the continuing or surviving corporation or entity of such consolidation or merger or transfers or conveys all or a majority of its properties and assets to any person, then, and in each such
case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as applicable, shall succeed to the obligations set forth in this Section 6.5.
Section 6.6 Notification of Certain Matters. The Company shall promptly (and in any event with
two (2) Business Days) notify Parent, and Parent shall promptly (and in any event with two (2)
Business Days) notify the Company, of (a) any notice or other communication received by such party from any Governmental Authority in connection with this Agreement, the Offer, the Merger or
the transactions contemplated hereby, or from any person alleging that the consent of such person is or may be required in connection with the Offer, the Merger or the transactions contemplated
hereby, if the subject matter of such communication or the failure of such party to obtain such consent could be material to the Company, the Surviving Corporation or Parent, (b) any actions,
suits, claims, investigations or proceedings commenced or, to such party's Knowledge, threatened against, relating to or involving or otherwise affecting such party or any of its subsidiaries which
relate to this Agreement, the Offer, the Merger or the transactions contemplated hereby and (c) the discovery by such party of any fact, circumstance or event, the occurrence or non-occurrence
of which could reasonably be expected, individually or taken together with all other existing facts, events and circumstances known to such party, to cause or result in any of the conditions of the
obligations of such party to consummate the Merger or the Offer not to be satisfied or the satisfaction of which to be materially delayed. The delivery of any notice pursuant to this Section 6.6
shall not limit or otherwise affect the remedies available hereunder to the party receiving such notice or the representations or
warranties or covenants of the parties or the conditions to the obligations of the parties hereunder.
Section 6.7 Public Announcements. Parent and the Company shall consult with each other before issuing,
and provide each other the opportunity to review and comment upon, any press release or other
public statements with respect to this Agreement, the Merger or the Offer, and shall not issue any such press release or make any such public statement without the prior consent of the other (which
consent shall not be unreasonably withheld or delayed), except as may be required by Law, court process or any listing agreement with or rules of the NYSE or other stock exchange on which securities
of Parent (or its Affiliates) or the Company is listed; provided that Parent and Acquisition Sub may make public statements regarding any Competing
Proposal that has been made public or in response to public statements of any person recommending or encouraging stockholders of the Company not to tender their shares of Common Stock into the Offer,
after consulting with the Company and considering in good faith any comments provided by the Company with respect to such public statements to the extent permitted by applicable Law, court process or
any listing agreement with or rules of the NYSE or other stock exchange on which securities of Parent (or its Affiliates) is listed. With respect to any communications to be delivered orally,
including by conference call or webcast, this Section 6.7 shall be deemed satisfied if, to the extent practicable, the disclosing party gives
advance notice of such disclosure to the other party, including copies of any talking points, scripts or similar documents, and consults with the other party and considers in good faith any comments
provided by such other party with respect thereto; provided, further that the prior agreement of the
other party shall be required with respect to such disclosures to the extent that the non-disclosing party reasonably determines that any disclosure would be materially adverse to the non-disclosing
party and it is reasonably practicable for the disclosing party to seek such prior consent. Notwithstanding the foregoing, the restrictions set forth in this Section 6.7 shall not apply to any
public statement made or
42
proposed
to be made by the Company or Parent in connection with or following a Change of Recommendation.
Section 6.8 Employee Matters.
(a) The
Surviving Corporation shall provide or cause to be provided to each employee of the Company and its Subsidiaries who continues as an employee of the Surviving
Corporation or Parent or any of their respective Subsidiaries following the Closing Date (a "Continuing Employee"), for a period extending until the
earlier of the termination of such Continuing Employee's employment with such entities or (i) the first anniversary of the Closing Date, (x) a base wage or salary that is no less than
that provided to such Continuing Employee immediately prior to the Effective Time, and (y) incentive compensation and employee benefits in the aggregate that are substantially comparable to
those provided to similarly situated employees of Parent and its subsidiaries. The provisions of this Section 6.8 shall not be construed or
interpreted to restrict in any way the Surviving Corporation's or Parent's ability to amend, modify or terminate any Company Benefit Plan (including to change the entities who
administer such Company Benefit Plans, or the manner in which such Company Benefit Plans are administered) or any other plan made available to the Continuing Employees or to terminate any person's
employment at any time and for any reason.
(b) Parent
shall, and shall cause the Surviving Corporation to: (i) waive any applicable pre-existing condition exclusions and waiting periods with respect to
participation and coverage requirements in any replacement or successor welfare benefit plan of Parent or the Surviving Corporation that an employee of the Company or any of its subsidiaries is
eligible to participate in immediately following the Effective Time to the extent such exclusions or waiting periods were inapplicable to, or had been satisfied by, such employee immediately prior to
the Effective Time under the relevant Company Benefit Plan in which such employee participated; (ii) provide each such employee with credit for any co-payments and deductible paid prior to the
Effective Time (to the same extent such credit was given under the analogous Company Benefit Plan prior to the Effective Time) in satisfying any applicable deductible requirements; and (iii) to
the extent that any Continuing Employee is eligible to participate in any employee benefit plan of Parent, the Surviving Corporation or any of their subsidiaries following the Effective Time, cause
such plan to recognize the service of such Continuing Employee with the Company and its subsidiaries prior to the Effective Time for purposes of eligibility to participate, vesting, vacation
entitlement and severance benefits (but not for benefit accrual under any defined benefit or, retiree welfare plan) to the same extent such service was recognized by the Company and its subsidiaries
under any similar Company Benefit Plan in which such Continuing Employee participated immediately prior to the Effective Time; provided, that the foregoing shall not apply to the extent it would
result in any duplication of benefits for the same period of service. As soon as practicable following the date of this Agreement, but in no event later than ten days prior to the Closing Date, the
Company shall terminate the Millennial Media, Inc. Severance Plan and the Millennial Media, Inc. Separation Plan in accordance with the terms of such plans and applicable Law.
(c) Without
limiting the generality of Section 6.8(a), with respect to any Continuing Employee whose employment is
terminated by Parent, the Surviving Corporation or any of their respective Subsidiaries on or prior to June 23, 2016 without cause, Parent or the Surviving Corporation shall provide or cause to
be provided to each such Continuing Employee severance payments and benefits no less than the severance payments and benefits that such Continuing Employee would have received under Parent's
applicable severance guidelines (with the base salary component of such severance payments or benefits not to exceed 12 months of base salary for Continuing Employees who, immediately prior to
the Effective Time, were at or below the vice president level or 18 months of base salary for Continuing Employees who, immediately prior to the Effective Time, were at the senior vice
president or executive vice president level); provided,
43
however,
that if any such Continuing Employee is entitled to severance benefits under an individual severance, employment or similar agreement which provides for severance benefits, the terms of such
agreement and not this Section 6.8(c) shall govern.
(d) With
respect to any Company Benefit Plan intended to be qualified under Section 401(a) of the Code (each, a "Qualified
Plan"), the Company shall cause each participant in such Qualified Plan to be fully vested in such participant's Qualified Plan account effective as of immediately prior to the
Closing Date. The Company shall terminate each Qualified Plan in accordance with its terms and applicable Law effective as of immediately prior to the Closing Date. The Company shall consult with
Parent (and consider in good faith the advice of Parent) prior to the Company sending any mass written notices or other mass communication materials (including any postings to any website) with
respect to matters described in this Section 6.8 (and, for the avoidance of doubt, not including any compensation or benefits matters not related
to the Merger) to its employees or former employees of the Company or any of its subsidiaries, but excluding any mass written notices or other mass communication materials with respect to
administrative matters. Prior to the Effective Time, the Company shall provide Parent with reasonable access following advance notice to such employees or former employees for purposes of Parent's
providing notices or other communication materials regarding Parent compensation and benefit plans and the matters described in this Section 6.8; provided, that such access shall not unduly interfere with the operation of the business of the Company prior to the Closing.
(e) The
Company and each of its subsidiaries shall, after the date hereof and prior to the Effective Time: (i) provide any and all notices to; (ii) make any
and all filings or registrations with; and (iii) obtain any and all consents or approvals of, any labor organization, works council or any similar entity, council or organization, required to
be made or obtained in connection with this Agreement or the consummation of the transactions contemplated hereby, except, in the case of each of clauses (i), (ii) and (iii), as would
not, individually or in the aggregate, result in material fines or penalties or could not be corrected following the Effective Time.
(f) This Section 6.8 shall be binding upon and inure solely to the benefit of each of the parties to this
Agreement,
and nothing in this Section 6.8, expressed or implied, is intended to confer upon any other Person any rights or remedies of any nature
whatsoever under or by reason of this Section 6.8. Without limiting the foregoing, no provision of this Section 6.8 will create any third party
beneficiary rights in any current or former employee, director or consultant of the Company or any of its
subsidiaries in respect of continued employment (or resumed employment) or any other matter. Nothing in this Agreement shall be deemed to amend or modify any compensation or benefit plan, policy,
agreement or arrangement sponsored or maintained by Parent, the Company or any of their respective subsidiaries or Affiliates.
Section 6.9 Acquisition Sub. Parent will take all actions necessary to (a) cause Acquisition Sub
to perform its obligations under this Agreement and to consummate the Offer and the
Merger on the terms and conditions set forth in this Agreement and (b) ensure that, prior to the Acceptance Time, Acquisition Sub shall not conduct any business or make any investments other
than as specifically contemplated by this Agreement, or incur or guarantee any indebtedness.
Section 6.10 No Control of the Company's Business. Nothing contained in this Agreement is intended to
give Parent, directly or indirectly, the right to control or direct the Company's or its subsidiaries'
operations prior to the Acceptance Time. Prior to the Acceptance Time, the Company shall exercise, consistent with the terms and conditions of this Agreement, complete control and supervision over its
and its subsidiaries' operations.
Section 6.11 Rule 16b-3. Prior to the Acceptance Time, the Company may take such further actions,
if any, as may be necessary or appropriate to ensure that the dispositions of equity
securities of the Company (including derivative securities) pursuant to the transactions contemplated by this
44
Agreement
by any officer or director of the Company who is subject to Section 16 of the Exchange Act are exempt under Rule 16b-3 promulgated under the Exchange Act.
Section 6.12 Stockholder Litigation. Prior to the earlier of the Effective Time or the termination of
this Agreement, the Company shall control the defense of any litigation brought by stockholders
of the Company against the Company and/or its directors relating to the transactions contemplated by this Agreement, including the Offer and the Merger; provided, however, that the Company (a) shall promptly provide Parent with copies of all
proceedings and correspondence relating to such litigation, (b) shall give Parent the opportunity to participate with the Company regarding the defense or settlement of any such litigation,
(c) shall give due consideration to Parent's advice with respect to such litigation and (d) shall not compromise, settle, come to an arrangement regarding or agree to compromise, settle
or come to an arrangement regarding any litigation arising or resulting from the transactions contemplated by this Agreement (other than any settlement solely for monetary damages paid entirely from
proceeds of insurance, except for any applicable deductible), or consent to the same without the prior written consent of Parent (not to be unreasonably withheld, conditioned or delayed).
Section 6.13 Stock Exchange De-listing. Prior to the Closing Date, the Company shall cooperate with
Parent and use reasonable best efforts to take, or cause to be taken, all actions, and do or cause to
be done all things, reasonably necessary, proper or advisable on its part under applicable Laws and rules and policies of the NYSE to cause the delisting of the Company and of the Common Stock from
the NYSE as promptly as practicable after the Effective Time and the deregistration of the Common Stock under the Exchange Act as promptly as practicable after such delisting.
Section 6.14 Rule 14d-10(d) Matters. Prior to the Acceptance Time and to the extent permitted by
applicable Law, the Company (acting through the Company Board, its compensation committee or its
"independent directors" as defined by Rule 303A.02 of the NYSE Listed Company Manual to the extent required) will take all such steps as may be required to cause each agreement, arrangement or
understanding that has been or will be entered into by the Company or its subsidiaries with any of its officers, directors or employees pursuant to which compensation, severance or other benefits is
paid to such officer, director or employee to be approved as an "employment compensation, severance or other employee benefit arrangement" within the meaning of Rule 14d-10(d)(1) under the
Exchange Act and to otherwise satisfy the requirements of the non-exclusive safe harbor set forth in Rule 14d-10(d) under the Exchange Act.
Section 6.15 State Takeover Laws. If any "control share acquisition," "fair price," "business
combination" or other anti-takeover Laws becomes or is deemed to be applicable to this Agreement or
any transaction contemplated by this Agreement, then Parent, the Company and their respective boards of directors or managers, as applicable, shall take all reasonable action necessary so that the
Offer, the Merger and the other transactions contemplated hereby may be consummated as promptly as practicable on the terms contemplated herein and otherwise act to eliminate if possible, and
otherwise to minimize, the effects of such statute or regulation on the Offer, the Merger and the other transactions contemplated hereby.
Section 6.16 Treatment of Company Debt. The Company shall, and shall cause its subsidiaries to, deliver
all notices and take all other actions to cause (a) the repayment in full on the Closing
Date (or in the case of any letters of credit, cash collateralization, to the extent that Parent shall not have entered into an alternative arrangement with the issuing bank) of all obligations then
outstanding under, (b) the release on the Closing Date in connection with such repayment of (i) any and all Liens securing such obligations and (ii) any or all guarantees of such
obligations and (c) the termination (to the extent provided therein and pursuant to the terms thereof) on the Closing Date of, the Credit Agreement (such repayment, release, and termination,
the "Existing Credit Facility Termination"), including using reasonable best efforts to obtain a payoff letter in customary form from the agent under
the Credit Agreement (it being understood that a "payoff letter in customary form" shall indicate the
45
total
amount required to be paid to fully satisfy all obligations of the Company and its subsidiaries in respect of the applicable indebtedness and state that all Liens and guarantees in connection
therewith relating to the assets of the Company or its subsidiaries shall be released upon the payment of such amount on the Closing Date); provided
that (i) Parent shall provide all funds required to effect all such repayments and cash collateralization of letters of credit and (ii) in no event shall this Section 6.16 require the
Company or any of its subsidiaries to cause the Existing Credit Facility Termination to be effective until the Closing
shall have occurred.
ARTICLE VII
CONDITIONS TO THE MERGER
Section 7.1 Conditions to the Obligations of Each Party. The respective obligations of each party to
consummate the Merger are subject to the satisfaction or mutually agreed waiver, prior to the Effective Time, of each
of the following conditions:
(a) Acquisition
Sub shall have accepted for payment, or caused to be accepted for payment, all shares of Common Stock validly tendered and not withdrawn in the Offer; and
(b) no
Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order which is then in effect and has the
effect of making the Merger illegal or otherwise prohibiting the consummation of the Merger (provided that each party shall have used its reasonable
best efforts to oppose any such action by such Governmental Authority).
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
Section 8.1 Termination. Notwithstanding anything contained in this Agreement to the contrary, this
Agreement may be terminated and abandoned at any time, as follows:
(a) by
mutual written consent of each of Parent and the Company by action of their respective boards of directors at any time prior to the Acceptance Time;
(b) by
either the Company or Parent, at any time prior to the Acceptance Time and after the Outside Date, if the Acceptance Time has not occurred by the Outside Date; provided, however, that in the case of this Section 8.1(b), (x) if on the Outside Date all of the conditions set forth in
Annex I, other than the conditions set forth in (b) and (c)(i) of Annex I (to the
extent such Order is in respect of, or any such Law is, an Antitrust Law) and those conditions that by their nature are to be satisfied at the Expiration Date, shall have been satisfied or waived,
then the Outside Date shall automatically be extended by a period of 60 calendar days (and all references to the Outside Date herein shall be as so extended); and (y) the right to terminate
this Agreement pursuant to this Section 8.1(b) shall not be available to any party whose material breach of this Agreement has caused or resulted
in the Offer not being consummated by such date;
(c) by
either Parent or the Company, if any court or Governmental Authority of competent jurisdiction shall have issued an Order or taken any other action permanently
restraining, enjoining or otherwise prohibiting (i) prior to the Acceptance Time, the acceptance for payment of, or payment for, shares of Common Stock pursuant to the Offer or
(ii) prior to the Effective Time, consummation of the Merger, and in either case such Order or other action shall have become final and non-appealable, provided that the party seeking to terminate
this Agreement pursuant to this Section 8.1(c) shall
have used its reasonable best efforts to remove such Order or other action; provided, further, that the
right to terminate this Agreement under this Section 8.1(c) shall not be available to a party if the issuance of such final, non-appealable Order
was due to the failure of such party, and in the case of Parent, including the failure of Acquisition Sub, to perform any of its obligations under Section 6.2;
46
(d) by
the Company, at any time prior to the Acceptance Time, if Parent or Acquisition Sub shall have breached or failed to perform in any material respect any of its
representations or warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (i) would reasonably be expected to prevent or materially delay the
consummation of the Offer or the Merger and (ii) cannot be cured on or before the Outside Date or, if curable in such time frame, is not cured by Parent within thirty (30) days of
receipt by Parent of written notice of such breach or failure; provided that the Company shall not have the right to terminate this Agreement pursuant
to this Section 8.1(d) if the Company has materially breached any of its covenants, agreements, representations or warranties contained in this
Agreement, which breach has not been cured;
(e) by
Parent, at any time prior to the Acceptance Time, if the Company shall have breached or failed to perform in any material respect any of its representations,
warranties, covenants or other agreements set forth in this Agreement, which breach or failure to perform (i) would result in a failure of conditions (c)(ii) or (c)(iii) set forth in Annex I and (ii) cannot be cured on or before the Outside Date or, if curable in such time frame, is not cured by the Company within
thirty (30) days of receipt by the Company of written notice of such breach or failure; provided that Parent shall not have the right to
terminate this Agreement pursuant to this Section 8.1(e) if Parent or Acquisition Sub has materially breached any of its covenants, agreements,
representations or warranties contained in this Agreement, which breach has not been cured;
(f) by
Parent, at any time prior to the Acceptance Time, if any events, developments or circumstances have occurred that would result in a failure of
condition (c)(iv) set forth in Annex I that cannot be cured on or before the Outside Date or, if curable in such time frame, is not cured
by the Company within thirty (30) days of receipt by the Company of written notice of such breach or failure;
(g) by
Parent at any time prior to the Acceptance Time, if the Company Board shall have effected a Change of Recommendation (whether or not in compliance with Section 6.4); or
(h) by
the Company in accordance with Section 6.4(f).
Section 8.2 Effect of Termination. If this Agreement is terminated pursuant to Section 8.1, this Agreement shall become void and of no effect
without liability of any party (or any stockholder, director, officer, employee, agent, consultant or representative of such party) to the other parties hereto, except (a) the final sentence of Section 2.2(b)
and the provisions of Section 6.3(b), this Section 8.2, Section 8.3,
Section 8.6, and Article IX shall survive any termination hereof pursuant to
Section 8.1 and (b) in the event of any liability arising out of or the result of fraud or any willful breach of any covenant, agreement,
representation or warranty, the aggrieved party shall be entitled to all rights and remedies available at law or in equity. Parent shall cause the Offer to be terminated immediately after termination
of this Agreement.
Section 8.3 Termination Fees. If:
(a) (i)
this Agreement is terminated by Parent or the Company pursuant to Section 8.1(b) (but in the case of a
termination by the Company, only if at such time Parent would not be prohibited from terminating this Agreement pursuant to Section 8.1(b)) or by
Parent pursuant to Section 8.1(e) and (ii) within eighteen (18) months after termination of this Agreement, the Company consummates
a transaction in respect of, or enters into a letter of intent, agreement in principle, acquisition agreement or other definitive agreement providing for, any Competing Proposal (for purposes of this
subsection, substituting 50% for the 10% thresholds set forth in the definition of Competing Proposal);
(b) this
Agreement is terminated by Parent pursuant to Section 8.1(g); or
47
then
in any such event the Company shall pay to Parent a fee payable in cash equal to $10,257,222 (the "Company Termination Fee"), less the amount of
any Expense Reimbursement paid pursuant to Section 8.6(b), to an account designated in writing by Parent, and thereafter neither the Company nor
any other person shall (subject to the provisions of Section 8.2(b)) have any further liability to Parent, Acquisition Sub or any other person
with respect to this Agreement or the transactions contemplated hereby (and upon payment thereof the Company Termination Fee shall be the sole and exclusive remedy (subject to the provisions of Section 8.2(b)
) of Parent and Acquisition Sub against the Company,
its subsidiaries and their respective former, current and future Representatives for any loss suffered as a result of the failure of the transactions contemplated hereby to be consummated or for a
breach or failure to perform hereunder), such payment to be made (i) in the case of Section 8.3(a), at the earlier of (A) when the
Company enters into a letter of intent, agreement in principle, acquisition agreement or other definitive agreement providing for such Competing Proposal or (B) when a transaction in respect of
such Competing Proposal is consummated; (ii) in the case of Section 8.3(b), no later than two (2) Business Days after the
termination of this Agreement; or (iii) in the case of Section 8.3(c), upon the termination of this Agreement; it being understood that in
no event shall the Company be required to pay the fee referred to in this Section 8.3 on more than one occasion. For the avoidance of doubt and
notwithstanding anything to the contrary herein, any payment by the Company of the Expense Reimbursement shall be credited against the Company Termination Fee, if any, that may become payable by the
Company hereunder, and following receipt by Parent of the Company Termination Fee, Parent shall not thereafter be entitled to receive any Expense Reimbursement.
Section 8.4 Amendment. This Agreement may be amended by mutual agreement of the parties hereto by
action taken by or on behalf of their respective boards of directors at any time prior
to the Effective Time; provided, however, that, after the Acceptance Time, there shall be no amendment
that decreases the Offer Price or the Merger Consideration. This Agreement may not be amended except by an instrument in writing signed by the parties hereto.
Section 8.5 Waiver. At any time prior to the Effective Time, subject to applicable Law, any party
hereto may (a) extend the time for the performance of any obligation or other
act of any other party hereto, (b) waive any inaccuracy in the representations and warranties of the other party contained herein or in any document delivered pursuant hereto and
(c) subject to the proviso of Section 8.4, waive compliance by any other party with any agreement or condition contained herein.
Notwithstanding the foregoing, no failure or delay by the Company, Parent or Acquisition Sub in exercising any right hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise of any other right hereunder. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party.
Section 8.6 Expenses.
(a) All
fees and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party or parties, as applicable, incurring
such fees and expenses whether or not the Offer and/or the Merger is consummated, except that Parent shall pay all filing fees under the HSR Act.
(b) In
the event that this Agreement is terminated by Parent pursuant to Section 8.1(e) or Section 8.1(b) and provided that, solely with respect to
Section 8.1(b), prior to such
termination the conditions set forth in clause (b) and (c)(i) of Annex I have been satisfied, then the Company shall reimburse Parent
$2,735,259 in respect of expenses incurred by Parent, Acquisition Sub and their respective Affiliates in connection with this Agreement and the transactions contemplated hereby (the
"Expense Reimbursement"), without need for supporting documentation. Any Expense Reimbursement payment shall be made by wire transfer of same day funds
to an account
48
designated
by Parent within two (2) Business Days of such termination; it being understood that in no event shall the Company be required to pay the Expense Reimbursement on more than one
occasion.
ARTICLE IX
GENERAL PROVISIONS
Section 9.1 Non-Survival of Representations, Warranties and Agreements. The representations, warranties,
covenants and agreements in this Agreement and any certificate delivered pursuant hereto by any person shall terminate at the
Effective Time or, except as provided in Section 8.2, upon the termination of this Agreement pursuant to Section 8.1, as the case may be, except
that this Section 9.1 shall not limit any covenant
or agreement of the parties which by its terms contemplates performance after the Effective Time or after termination of this Agreement, including those contained in Section 6.5 and Section 6.8.
Section 9.2 Notices. Any notice required to be given hereunder shall be sufficient if in writing, and
sent by facsimile transmission or e-mail of a .pdf attachment (provided that any
notice received by facsimile or e-mail transmission or otherwise at the addressee's location on any Business Day after 5:00 p.m. (addressee's local time) shall be deemed to have been received
at 9:00 a.m. (addressee's local time) on the next Business Day), by reliable overnight delivery service (with proof of service), by hand delivery or by certified or registered mail (return
receipt requested and first-class postage prepaid), addressed as follows (or at such other address for a party as shall be specified in a notice given in accordance with this Section 9.2):
if
to Parent or Acquisition Sub:
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|
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AOL Inc.
770 Broadway
New York, New York 10003
Fax: 703-265-3992 |
E-mail: |
|
tim.armstrong@teamaol.com |
Attention: |
|
Chief Executive Officer |
with copies to: |
770 Broadway
New York, New York 10003
Fax: 703-265-3992 |
E-mail: |
|
julie.jacobs@ teamaol.com |
Attention: |
|
Executive Vice President & General Counsel |
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, New York 10019 |
E-Mail: |
|
deshapiro@wlrk.com & rsnarayan@wlrk.com |
Attention: |
|
David E. Shapiro, Esq. & Raaj Narayan, Esq. |
if
to the Company:
|
|
|
Millennial Media, Inc.
2400 Boston Street, Suite 300
Baltimore, MD 21224 |
E-mail: |
|
michael@millennialmedia.com |
Attention: |
|
Chief Executive Officer |
49
|
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|
with a copies to: |
Millennial Media, Inc.
2400 Boston Street, Suite 300
Baltimore, MD 21224 |
E-mail: |
|
hshin@millennialmedia.com |
Attention: |
|
General Counsel |
Goodwin Procter LLP
53 State Street
Exchange Place
Boston, MA 02109 |
E-Mail: |
|
jegan@goodwinprocter.com; jjohnson@goodwinprocter.com;
iengstrand@goodwinprocter.com |
Attention: |
|
John J. Egan, III, Esq.; Joseph L. Johnson, III, Esq.; and
Ian D. Engstrand, Esq. |
Section 9.3 Interpretation: Certain Definitions. The parties have participated jointly in the
negotiation and drafting of this Agreement. Consequently, in the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of
the authorship of any provision of this Agreement. When a reference is made in this Agreement to an Article, Section, Annex or Exhibit, such reference shall be to an Article or Section of, or an Annex
or Exhibit to, this Agreement, unless otherwise indicated. The table of contents and headings for this Agreement are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation." The words
"hereof," "herein" and "hereunder" and words of similar import when used in this Agreement shall refer to this Agreement as a whole and not to any particular provision of this Agreement. The words
"made available to Parent" and words of similar import refer to information posted to the electronic data room for Project Mars hosted by Merrill Corporation and maintained by the Company for purposes
of the transactions contemplated by this Agreement (the "Data Room") or otherwise delivered to Parent or a Representative of Parent (including by email
or by specific identification of a filing or an exhibit to a filing available on the SEC's Electronic Data-Gathering, Analysis and Retrieval system) no later than 11:59 p.m. Eastern Standard
Time on the calendar day immediately preceding the date of this Agreement. All terms defined in this Agreement shall have the defined meanings when used in any certificate or other document made or
delivered pursuant hereto unless otherwise defined therein. The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms and to the masculine as
well as to the feminine and neuter genders of such term. Any statute defined or referred to herein or in any agreement or instrument that is referred to herein means such statute as from time to time
amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor statutes. References to a person are also to its permitted successors and assigns. All
references to "dollars" or "$"refer to currency of the United States of America. References to "wholly owned subsidiaries" of the Company shall include any subsidiary of which the Company owns,
directly or indirectly, all of the equity interests.
Section 9.4 Severability. If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any rule of Law, or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Offer and the Merger is not affected in any manner materially adverse
to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so
as to effect the
50
original
intent of the parties as closely as possible in a mutually acceptable manner in order that the Offer and the Merger be consummated as originally contemplated to the fullest extent possible.
Section 9.5 Assignment. Neither this Agreement nor any rights, interests or obligations hereunder shall
be assigned by any of the parties hereto (whether by operation of Law or
otherwise) without the prior written consent of the other parties hereto, except that the Agreement may be assigned by Parent or Acquisition Sub to an Affiliate of such party; provided, that the party
making such assignment shall not be released from its obligations hereunder. Subject to the preceding sentence, this Agreement shall be binding upon and inure to the benefit of the parties hereto and
their respective successors and permitted assigns.
Section 9.6 Entire Agreement; No Third-Party Beneficiaries. This Agreement (including the Annexes,
Exhibits and Schedules hereto) and the Confidentiality Agreement constitute the entire agreement, and supersede all other
prior agreements and understandings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof and thereof, and except for (a) the rights of the
Company's stockholders to receive the Offer Price at the Acceptance Time or the Merger Consideration at the Effective Time, as applicable, (b) the right of the holders of Company Options to
receive the Option Cash Payment, (c) the rights of the holders of Company RSU Awards to receive the Company RSU Award Cash Payment and (d) the provisions of Section 6.5 (in each case of
clauses (a), (b), (c) and (d) in accordance with the terms herein), is not intended to and
shall not confer upon any person other than the parties hereto any rights or remedies hereunder. The representations and warranties in this Agreement are the product of negotiations among the parties
hereto and are for the sole benefit of the parties hereto. Any inaccuracies in such representations and warranties are subject to waiver by the parties hereto in accordance with Section 8.5 without
notice or liability to any other person. The representations and warranties in this Agreement may represent an allocation
among the parties hereto of risks associated with particular matters regardless of the Knowledge of any of the parties hereto. Accordingly, persons other than the parties hereto may not rely upon the
representations and warranties in this Agreement as characterizations of actual facts or circumstances as of the date of this Agreement or as of any other date.
Section 9.7 Governing Law. This Agreement shall be governed by, and construed in accordance with the
laws of the State of Delaware, without giving effect to any choice or conflict of laws
provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the Laws of any jurisdiction other than the State of Delaware.
Section 9.8 Specific Performance. The parties agree that irreparable damage for which monetary damages,
even if available, would not be an adequate remedy, would occur in the event that the
parties hereto do not perform the provisions of this Agreement (including failing to take such actions as are required of it hereunder to consummate this Agreement) in accordance with its specified
terms or otherwise breach such provisions. The parties acknowledge and agree that the parties shall be entitled to an injunction, specific performance and other equitable relief to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof without the posting of a bond, in addition to any other remedy to which they are entitled at law or in equity. Each of the
parties agrees that it will not oppose the granting of an injunction, specific performance and other equitable relief on the basis that any other party has an adequate remedy at law or that an award
of specific performance is not an appropriate remedy for any reason at law or in equity.
Section 9.9 Consent to Jurisdiction.
(a) Each
of Parent, Acquisition Sub and the Company hereby submits to the nonexclusive jurisdiction of the Delaware Court of Chancery (or, if (but only if) the Delaware
Court of Chancery shall be unavailable, any other court of the State of Delaware or any federal court sitting in the State of Delaware), for the purpose of any action or proceeding arising out of or
relating to
51
this
Agreement, and each of the parties hereto hereby irrevocably agrees that all claims in respect to such action or proceeding may be heard and determined in any such court.
(b) Each
of the parties hereto (i) irrevocably consents to the service of the summons and complaint and any other process in any action or proceeding relating to the
transactions contemplated by this
Agreement, on behalf of itself or its property, by personal delivery of copies of such process to such party, and nothing in this Section 9.9
shall affect the right of any party to serve legal process in any other manner permitted by applicable Law, (ii) consents to submit itself to the personal jurisdiction of the Delaware Court of
Chancery, any other court of the State of Delaware and any federal court sitting in the State of Delaware in the event any dispute arises out of this Agreement or the transactions contemplated by this
Agreement and (iii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court. Each of Parent, Acquisition Sub and
the Company agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by
applicable Law.
Section 9.10 Counterparts. This Agreement may be executed and delivered (including by facsimile
transmission or by e-mail of a .pdf attachment) in two (2) or more counterparts, and
by the different parties hereto in separate counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall constitute one and the same
agreement.
Section 9.11 WAIVER OF JURY TRIAL. EACH OF PARENT, ACQUISITION SUB AND THE COMPANY HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON
CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF PARENT, ACQUISITION SUB OR THE COMPANY IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
THEREOF. EACH PARTY (A) MAKES THIS WAIVER VOLUNTARILY AND (B) ACKNOWLEDGES THAT SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
CONTAINED IN THIS SECTION 9.11.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
52
IN
WITNESS WHEREOF, Parent, Acquisition Sub and the Company have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly
authorized.
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AOL INC. |
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By: |
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/s/ TIM ARMSTRONG
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Name: |
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Tim Armstrong |
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Title: |
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CEO |
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MARS ACQUISITION SUB, INC. |
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By: |
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/s/ HOLYCE HESS
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Name: |
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Holyce Hess |
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Title: |
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VP, Assistant Treasurer |
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MILLENNIAL MEDIA, INC. |
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By: |
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/s/ MICHAEL BARRETT
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Name: |
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Michael Barrett |
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Title: |
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President & CEO |
[Agreement and Plan of Merger Signature Page]
Appendix A
DEFINITIONS
As
used in the Agreement, the following terms shall have the following meanings:
"Acceptable Confidentiality Agreement" shall have the meaning set forth in Section 6.4(b).
"Acceptance Time" shall have the meaning set forth in Section 2.2(c).
"Acquisition Sub" shall have the meaning set forth in the Recitals.
"Agreement" shall have the meaning set forth in the Recitals.
"Affiliate" shall mean a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is
under common control with, the person specified; provided, however, that for the avoidance of doubt,
neither Parent nor Acquisition Sub nor any of their respective Affiliates shall, prior to the Effective Time, be considered an Affiliate of the Company (or any of its Affiliates).
"Antitrust Laws" shall mean the HSR Act and any other applicable U.S. or foreign competition, antitrust, merger control or foreign
investment Laws.
"Blue Sky Laws" shall mean state securities or "blue sky" laws.
"Book-Entry Shares" shall have the meaning set forth in Section 3.1(b).
"Business Day" shall mean any day other than a Saturday, Sunday or a day on which all banking institutions in New York, New York are
authorized or obligated by applicable Law or executive order to close.
"By-laws" shall mean the Amended and Restated Bylaws of the Company.
"Certificates" shall have the meaning set forth in Section 3.1(b).
"Certificate of Incorporation" shall mean the Amended and Restated Certificate of Incorporation of the Company.
"Certificate of Merger" shall have the meaning set forth in Section 2.5(a).
"Change of Recommendation" shall have the meaning set forth in Section 6.4(c).
"Closing" shall have the meaning set forth in Section 2.4.
"Closing Date" shall have the meaning set forth in Section 2.4.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Common Stock" shall have the meaning set forth in the Recitals.
"Company" shall have the meaning set forth in the Recitals.
"Company Associate" shall mean any current or former employee, independent contractor, consultant or director of or to the Company or any
of its subsidiaries.
"Company Benefit Plan" shall mean each "employee pension benefit plan"(as defined in Section 3(2) of ERISA), each "employee welfare
benefit plan"(as defined in Section 3(1) of ERISA) (in each case, whether or not such plan is subject to ERISA), and each other plan, agreement, arrangement or policy (written or oral) relating
to stock options, stock purchases, deferred compensation, bonus, severance, retention, employment, change of control, fringe benefits, supplemental benefits or other employee benefits, in each case
maintained or contributed to, or required to be maintained or contributed to, by the Company or its subsidiaries, or with respect to
A-1
which
the Company or any of its subsidiaries has any current or contingent liability, other than any Multiemployer Plan and each plan or arrangement applicable to employees outside of the United
States that is mandated by applicable Law.
"Company Board" shall have the meaning set forth in the Recitals.
"Company Disclosure Letter" shall have the meaning set forth in Article IV.
"Company Intellectual Property" shall have the meaning set forth in Section 4.14(a).
"Company Intellectual Property Rights" shall mean any and all Intellectual Property Rights that are owned (solely or jointly) by, or
exclusively licensed to, the Company or any of its subsidiaries (or that the Company or any of its subsidiaries claims or purports to own).
"Company Leases" shall have the meaning set forth in Section 4.19(b).
"Company Material Adverse Effect" shall mean any change, effect, fact, development, or circumstance that, individually or in the
aggregate, (a) has a material adverse effect on the business, results of operations or financial condition of the Company and its subsidiaries taken as a whole, or (b) would reasonably
be expected to prevent, materially impair or materially delay the ability of the Company to consummate the Merger and the other transactions contemplated by this Agreement, other than with respect to
clause (a) only, to the extent attributable to: (i) changes after the date hereof in general economic or political conditions or financial, credit or securities markets in general
(including changes in interest or exchange rates) in any country or region in which the Company or any of its subsidiaries conducts business; (ii) any events, circumstances, changes or effects
after the date hereof that affect the industries in which the Company or any of the Company's subsidiaries operate; (iii) any changes after the date hereof in Laws applicable to the Company or
any of the Company's subsidiaries or any of their respective properties or assets or changes after the date hereof in GAAP; (iv) acts of war, armed hostilities, sabotage or terrorism, or any
escalation or worsening of any acts of war, armed hostilities, sabotage or terrorism; (v) the negotiation or announcement of, or any action taken that is required or expressly contemplated by
this Agreement (including the impact thereon on relationships (contractual or otherwise) with customers, vendors, lenders, employees or other business partners), or any action taken at the request of
or with the written consent of Parent; (vi) any changes in the credit rating of the Company or any of its subsidiaries, the market price or trading volume of shares of Common Stock or any
failure by the Company to meet internal or published projections, forecasts or revenue or earnings predictions for any period, it being understood that any underlying event causing such changes or
failures in whole or in part may be taken into account in determining whether a Company Material Adverse Effect has occurred; or (vii) any litigation arising from allegations of a breach of
fiduciary duty relating to this Agreement or the transactions contemplated hereby; in each case of clauses (i), (ii), (iii), or (iv), to the extent such change, effect, fact, development,
circumstance, act, escalation, or worsening does not have a disproportionate impact on the Company and its subsidiaries relative to other companies in similar industries to those in which the Company
and its subsidiaries operate.
"Company Material Contracts" shall have the meaning set forth in Section 4.16(a).
"Company Option" shall mean each option to purchase shares of Common Stock granted under any of the Company Plans.
"Company Permits" shall have the meaning set forth in Section 4.6.
"Company Plans" shall mean any equity or equity-based incentive plan or arrangement of the Company, including, (a) the 2006 Equity
Incentive Plan, effective July 21, 2006, (b) the 2012 Equity Incentive Plan, effective March 28, 2012, (c) the Amended and Restated 2005 Stock Option and Grant Plan, and
(d) the 2014 Equity Inducement Plan, effective December 4, 2014.
A-2
"Company Product" small mean any current product or service offered or distributed by the Company or any of its subsidiaries.
"Company Recommendation" shall have the meaning set forth in Section 4.4(b).
"Company RSU Award" shall mean each award designated as an award of restricted stock units under any of the Company Plans subject solely
to time-based vesting terms, including each such award granted to non-employee directors of the Company.
"Company RSU Award Cash Payment" shall have the meaning set forth in Section 3.3(b)(i).
"Company SEC Documents" shall have the meaning set forth in Section 4.7(a).
"Company Software" shall mean any Software, in whole or in part, in which the Copyrights are owned (or claimed or purported to be owned)
by the Company or any of its subsidiaries.
"Company Termination Fee" shall have the meaning set forth in Section 8.3.
"Competing Proposal" shall have the meaning set forth in Section 6.4(g).
"Confidentiality Agreement" shall mean the Confidential Non-Disclosure Agreement, dated as of January 16, 2015, as amended on
May 18, 2015, by and between Parent, Verizon Communications Inc. and the Company.
"Continuing Employee" shall have the meaning set forth in Section 6.8(a).
"control"(including the terms "controlled by" and "under common control with") shall mean the possession, directly or indirectly, or as
trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, as trustee or executor, by contract
or credit arrangement or otherwise.
"Copyrights" shall mean any and all U.S. and foreign copyrights and all other rights with respect to Works of Authorship and all
registrations thereof, applications therefor, and renewals, extensions and reversions thereof (including moral and economic rights, however denominated).
"Credit Agreement" shall mean that certain Amended and Restated Loan and Security Agreement, dated as of November 21, 2014, between
Silicon Valley Bank and the Company.
"DAA" shall have the meaning set forth in Section 4.14(n).
"Databases" shall have the meaning set forth in the definition of Intellectual Property.
"Data Room" shall have the meaning set forth in Section 9.3.
"D&O Insurance" shall have the meaning set forth in Section 6.5(c).
"DGCL" shall have the meaning set forth in the Recitals.
"Dissenting Shares" shall have the meaning set forth in Section 3.5.
"Domain Names" shall have the meaning set forth in the definition of Intellectual Property.
"Effective Time" shall have the meaning set forth in Section 2.5(a).
"Environmental Claim" shall mean any letter, citation, report, investigation, pleading, oral statement or document alleging actual or
potential liability (including actual or potential liability for investigatory costs, cleanup costs, governmental response costs, natural resources damages, property damages, personal injuries,
attorneys' fees or penalties) or setting forth facts from which a reasonable person
would understand that there is a possibility of a claim, arising out of, based on or resulting from (a) the presence, or release into the environment, of, or exposure to, any Hazardous
Substances at any location (including the ambient indoor air or the drinking water), whether or not owned or operated by
A-3
the
Company or any of its subsidiaries, now or in the past, or (b) circumstances forming the basis of any violation, or alleged violation, of, or liability under any Environmental Law or Health
and Safety Law, and including any letter, citation, report, pleading, oral statement or document alleging or setting forth facts that indicate a violation of an Environmental Law, Environmental Permit
or Health and Safety Law brought, issued or asserted by any Person.
"Environmental Law" shall mean any Law or requirements of any applicable Governmental Authority, and applicable common law, relating to
(a) pollution, the protection of human health or the environment (including air, water vapor, surface water, groundwater, drinking water supply, surface or subsurface land or strata, and
natural resources), (b) the manufacture, generation, transportation, processing, handling, distribution, use, treatment, storage, containment (whether on or above ground or underground),
recycling or disposal of any Hazardous Substances, (c) emissions, discharges, releases or threatened releases of, or exposure to, Hazardous Substances, (d) recordkeeping, notification,
disclosure and reporting requirements regarding Hazardous Substances, (e) endangered or threatened species of fish, wildlife and plant and natural resources, (f) wetlands or coastal
protection; (g) energy use; or (h) emissions or control of greenhouse gases.
"Environmental Permit" shall mean all permits, licenses, approvals, authorizations, consents, orders or binding agreements required by or
issued by or entered into with any Governmental Authority under any applicable Environmental Law.
"Equity Award" shall have the meaning set forth in Section 4.3(a).
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as amended.
"ERISA Affiliate" shall mean, with respect to any entity, trade or business, any other entity, trade or business that is, or was at the
relevant time, a member of a group described in Section 414(b), (c), (m) or (o) of the Code or Section 4001(b)(1) of ERISA that includes or included the first entity, trade
or business, or that is, or was at the relevant time, a member of the same "controlled group" as the first entity, trade or business pursuant to Section 4001(a)(14) of ERISA.
"Exchange Act shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Exchange Fund" shall have the meaning set forth in Section 3.2(a).
"Existing Credit Facility Termination" shall have the meaning set forth in Section 6.16.
"Expense Reimbursement" shall have the meaning set forth in Section 8.6(b).
"Expiration Date" shall have the meaning set forth in Section 2.1(d).
"GAAP" shall mean the United States generally accepted accounting principles.
"Geolocation Data" means information used or intended to be used to determine the actual physical location of an individual or device with
reasonable specificity.
"Governmental Authority" shall mean any United States (federal, state or local) or foreign government, or any governmental, regulatory,
judicial or administrative authority, agency or commission.
"Hazardous Substance" shall mean chemical, pollutant, contaminant, waste, and any other substance or material that is regulated by any
Environmental Law including those listed, defined, designated, treated or classified as hazardous or toxic pursuant to applicable Environmental Laws, and including any petroleum or petroleum products,
wastes or derivatives, asbestos or asbestos-containing materials, urea formaldehyde or poly chlorinated biphenyls, greenhouse gases, lead or lead-based paints or materials, radon, and toxic or
hazardous mold. Hazardous Substances include any and all items that contain Hazardous Substances.
A-4
"Health and Safety Law" shall mean any Law or requirement of any applicable Governmental Authority, and applicable common law, relating to
the protection of the health or safety of any person including employees or persons performing activities on the behalf of the Company or any of its subsidiaries.
"HSR Act" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated
thereunder.
"Indemnitee" shall mean any individual who, on or prior to the Effective Time, was an officer or director of the Company or served on
behalf of the Company as an officer or director of any of the Company's subsidiaries or Affiliates or any of their predecessors in all of their capacities (including as stockholder, controlling or
otherwise) and the heirs, executors, trustees, fiduciaries and administrators of such officer or director.
"Initial Expiration Date" shall have the meaning set forth in Section 2.1(d).
"Intellectual Property" shall mean any and all: (a) Technology; (b) technical, engineering, manufacturing, product,
marketing, servicing, financial, supplier, personnel and other information and materials; (c) customer, vendor and distributor lists, contact and registration information and correspondence;
(e) models, devices, prototypes, schematics and development tools; (e) Software, websites, content, images, graphics, text, photographs, artwork, audiovisual works, sound recordings,
graphs, drawings, reports, analyses, writings, designs, mask works and other works of authorship and copyrightable subject matter ("Works of
Authorship"); (g) databases and other compilations and collections of data or information ("Databases"); (g) any
and all U.S. and foreign trademarks, service marks, logos and design marks, trade dress, trade names, fictitious and other business names, and brand names, together with all goodwill associated with
any of the foregoing ("Trademarks"); (h) domain names, uniform resource locators and other names and locators associated with the Internet
("Domain Names"); (i) information and materials not generally known to the public, including trade secrets and other confidential and proprietary
information ("Trade Secrets"); and (j) other tangible embodiments of any of the foregoing, in any form or media whether or not specifically
listed herein.
"Intellectual Property Rights" shall mean (a) any and all rights (anywhere in the world, whether statutory, common law or
otherwise) relating to, arising from, or associated with: (i) Patents; (ii) Copyrights; (iii) other rights with respect to Software, and all registrations thereof, applications
therefor and renewals and extensions of the foregoing; (iv) industrial design rights, and all registrations thereof, applications therefor and renewals and extensions of the foregoing,
(v) Trademarks, and all registrations thereof, applications therefor and renewals and extensions of the foregoing; (vi) Domain Names, and all registrations thereof, applications therefor
and renewals and extensions of the foregoing; (vii) Trade Secrets, including rights to limit the use or disclosure thereof by any person; (viii) Databases, and all registrations thereof,
applications therefor and renewals and extensions of the foregoing; and (ix) publicity and privacy rights, including all rights with respect to use of a person's name, signature, likeness,
image, photograph, voice, identity, personality, and biographical and personal information and materials; and (b) any rights equivalent or similar to any of the foregoing.
"IRS" shall mean the United States Internal Revenue Service.
"Knowledge" shall mean the actual knowledge, after due inquiry, of the following officers and employees of the Company and Parent, as
applicable: (a) for the Company: Michael Barrett, Ho Shin, Ernie Cormier, Andrew Jeanneret, Jason Kelly, Matt Gillis, Robin Eletto, Bob Hammond and Marc Theermann and (b) for Parent: Bob
Lord, Mark Roszkowski, Tom Lee and Matthew Garber.
"Law" shall mean any and all domestic (federal, state or local) or foreign laws, rules, regulations, orders, judgments or decrees
promulgated by any Governmental Authority.
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"Leased Real Property" shall mean the real property subject to the Company Leases and such other real property in respect of which the
Company has leases, subleases or other agreements in place, pursuant to which the Company uses or occupies or has the right to use or occupy such real property.
"Lien" shall mean liens, claims, mortgages, deeds of trust, encumbrances, encroachments, easements, covenants, restrictions, title
defects, conditions, pledges, options or other third party rights, security interests or charges of any kind, including agreements to use or lease real estate (oral or written), but shall not include
licenses to Intellectual Property Rights.
"Major Customer" shall have the meaning set forth in Section 4.22(a).
"Major Supplier" shall have the meaning set forth in Section 4.22(b).
"Merger" shall have the meaning set forth in the Recitals.
"Merger Consideration" shall have the meaning set forth in Section 3.1(b).
"Minimum Condition" shall have the meaning set forth in Section 2.1(a).
"Multiemployer Plan" shall mean any "multiemployer plan" within the meaning of Section 3(37) or 4001(a)(3) of ERISA.
"NAI" shall have the meaning set forth in Section 4.14(n).
"Non-PII" shall mean data that is linked or reasonably linkable to a particular computer or device, including Internet Protocol addresses,
unique device identifiers or other persistent identifiers, and also includes web browsing history that is linked or reasonably linkable to the foregoing. Non-PII includes information in any form,
including paper, electronic and other forms. Web browsing history includes searches conducted and web pages or content visited or viewed.
"NYSE" shall mean the New York Stock Exchange.
"Offer" shall have the meaning set forth in the Recitals.
"Offer Closing" shall have the meaning set forth in Section 2.9.
"Offer Conditions" shall have the meaning set forth in Section 2.1(a).
"Offer Documents" shall have the meaning set forth in Section 2.1(g).
"Offer Price" shall have the meaning set forth in the Recitals.
"Offer to Purchase" shall have the meaning set forth in Section 2.1(c).
"Open Source Software" shall mean any Software or similar subject matter that is distributed as "free software", "open source software" or
under similar licensing or distribution terms that require such Software (or any portion thereof), or other Software (or any portion thereof) incorporated into, derived from or distributed with such
Software, to be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributable at no charge; including Software
licensed under the GNU General Public License, GNU Lesser General Public License,
Apache License, New BSD License, MIT License, Common Public License and any other license identified as an open source license by the Open Source Initiative.
"Option Cash Payment" shall have the meaning set forth in Section 3.3(a)(i).
"Order" shall mean any decree, order, judgment, injunction, temporary restraining order or other order in any suit or proceeding by or
with any Governmental Authority.
"Outside Date" shall have the meaning set forth in Section 2.1(e).
"Owned Real Property" shall have the meaning set forth in Section 4.19(a).
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"Parent" shall have the meaning set forth in the Recitals.
"Parent Material Adverse Effect" shall mean any change, effect or circumstance that, individually or in the aggregate, would reasonably be
expected to prevent, materially impair or materially delay the ability of Parent to consummate the Merger and the other transactions contemplated by this Agreement.
"Parent Organizational Documents" shall have the meaning set forth in Section 5.2.
"Patents" shall mean any and all U.S. and foreign patent rights, including all: (a) patents (including utility, utility model,
plant and design patents, and certificates of invention); (b) patent applications, including all provisional applications, substitutions, continuations, continuations-in-part, divisions,
renewals and all patents granted thereon; (c) all patents-of-addition, reissues, reexaminations, confirmations, re-registrations, invalidations, and extensions or restorations by existing or
future extension or restoration mechanisms, including supplementary protection certificates or the equivalent thereof; and (d) all foreign counterparts and equivalents of any of the foregoing.
"Paying Agent" shall have the meaning set forth in Section 3.2(a).
"Permitted Lien" shall mean (a) any Lien for Taxes not yet due and payable or being contested in good faith through appropriate
proceedings and for which adequate reserves have been established in accordance with GAAP in the Company's financial statements included in the Company SEC Documents, (b) with respect to Owned
Real Property or Leased Real Property, easements or claims of easements, boundary line disputes, overlaps, encroachments, supplemental Taxes and assessments, rights of parties in possession, and title
to any portion of the premises lying within the right of way or boundary of any public road or private road, in each case that do not materially interfere with the business of the Company and its
subsidiaries as presently conducted, (c) Liens imposed or promulgated by Laws with respect to real property and improvements, including zoning regulations, that do not materially interfere with
the Company's business as presently conducted, (d) Liens disclosed on existing title reports or existing surveys provided to Parent prior to the date hereof, (e) mechanics', carriers',
workmen's, repairmen's and similar Liens incurred in the ordinary course of business, (f) Liens created under the Credit Agreement and (g) Liens that do not materially interfere with the
use, operation or transfer of, or any of the benefits of ownership of, the property of the Company and its subsidiaries taken as a whole.
"person" shall mean an individual, a corporation, a limited liability company, a partnership, an association, a trust or any other entity
or organization, including a Governmental Authority.
"Personal Information" means, in addition to any definition provided by the Company for any similar term (e.g., "personally
identifiable information" or "PII") in any Company privacy policy or other public-facing statement, all information associated with an individual person, including information that identifies, or is
associated with personally identifiable information, as defined in the Company's privacy policy, including name, physical address, telephone number, email address, financial account number, credit
card number or government-issued identifier (including Social Security number, driver's license number, passport number), medical, health or insurance information and any other data used or intended
to be used to identify or contact an individual. Personal Information may relate to any individual, including a current, prospective or former customer or employee. Personal Information includes
information in any form, including paper, electronic and other forms.
"Preferred Stock" shall have the meaning set forth in Section 4.3(a).
"Privacy Laws" means all Laws which govern the receipt, collection, compilation, use, storage, processing, sharing, safeguarding,
security, disposal, destruction, disclosure or transfer of Personal Information, Geolocation Data and Non-PII and all such Laws governing breach notification, penalties and compliance with Orders,
including Section 5 of the FTC Act, the Children's Online Privacy
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Protection
Act, the California Online Privacy Protection Act, the Video Privacy Protection Act, the EU Data Protection Directive, the Payment Card Industry Data Security Standard, the CAN-SPAM
Act and Canada's Anti-Spam Legislation, the Health Insurance Portability and Accountability Act and the EU Cookie Directive.
"Real Property" shall mean the Owned Real Property and the Leased Real Property, collectively.
"Registered IP" shall mean all Intellectual Property Rights that are registered, filed, issued or granted under the authority of, with or
by any Governmental Authority, including all Patents, registered Copyrights, registered Trademarks, Domain Names and all applications for any of the foregoing.
"Representatives" shall have the meaning set forth in Section 6.3(a).
"Sarbanes-Oxley Act" shall mean the Sarbanes-Oxley Act of 2002, as amended.
"Schedule 14D-9"shall have the meaning set forth in Section 2.2.
"Schedule TO" shall have the meaning set forth in Section 2.1(g).
"SEC" shall mean the Securities and Exchange Commission.
"Secretary of State" shall have the meaning set forth in Section 2.5(a).
"Securities Act" shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder.
"Software" shall mean all (a) computer programs and other software, including software implementations of algorithms, models and
methodologies, whether in source code, object code or other form, including libraries, subroutines and other components thereof; (b) computerized Databases,
including all data and information included in such Databases; (c) screens, user interfaces, command structures, report formats, templates, menus, buttons and icons; (d) descriptions,
flow-charts, architectures, development tools and other materials used to design, plan, organize and develop any of the foregoing; and (e) all documentation, including development, diagnostic,
support, user and training documentation, related to any of the foregoing.
"subsidiary" of any person, means any corporation, partnership, joint venture or other legal entity of which such person (either alone or
through or together with any other subsidiary), owns, directly or indirectly, more than 50% of the stock or other equity interests, the holders of which are generally entitled to vote for the election
of the board of directors or other governing body of such corporation or other legal entity.
"Superior Proposal" shall have the meaning set forth in Section 6.4(h).
"Superior Proposal Agreement" shall have the meaning set forth in Section 6.4(f).
"Surviving Corporation" shall have the meaning set forth in Section 2.3.
"Tax" or "Taxes" shall mean any and all taxes, fees, levies, duties, tariffs, imposts, and
other similar charges (together with any and all interest, penalties and additions thereto) imposed by any Governmental Authority, whether directly by a Governmental Authority or indirectly through
any other person, including taxes or other charges on or with respect to income, franchises, windfall or other profits, gross receipts, property, sales, use, alternative minimum, escheat, unclaimed
property, capital stock, payroll, employment, social security, workers' compensation, occupation, unemployment compensation, environmental, 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; customs' duties, tariffs, and similar charges.
"Tax Returns" shall mean returns, reports, claims for refund, and information statements, including any schedule or attachment thereto,
with respect to Taxes filed or required to be filed with the IRS or
A-8
any
other Governmental Authority, domestic or foreign, including consolidated, combined and unitary tax returns, and including any amendment thereto.
"Technology" shall mean all Software, information, designs, formulae, algorithms, procedures, methods, techniques, ideas, know-how,
research and development, technical data, programs, subroutines, tools, materials, specifications, processes, inventions (whether patentable or unpatentable and whether or not reduced to practice),
discoveries, apparatus, creations, improvements, works of authorship and other similar materials, and all recordings, graphs, drawings, reports, analyses, and other writings, and other tangible
embodiments of the foregoing, in any form whether or not specifically listed herein, and all related technology, that are used in, incorporated in, embodied in, displayed by or relate to, or are used
in connection with the foregoing.
"Termination Condition" shall have the meaning set forth in Section 2.1(a).
"Total Common Merger Consideration" shall mean the product of (a) the number of shares of Common Stock issued and outstanding
(other than those shares canceled, retired or converted pursuant to Section 3.1(a) and other than Dissenting Shares) immediately prior to the
Effective Time and (b) the Merger Consideration.
"Treasury Regulations" shall mean the regulations promulgated under the Code, as such regulations may be amended from time to time.
"Trade Secrets" shall have the meaning set forth in the definition of Intellectual Property.
"Trademarks" shall have the meaning set forth in the definition of Intellectual Property.
"WARN Act" shall mean the Worker Adjustment and Retraining Notification Act of 1988, as amended, and any comparable foreign, state or
local Law.
"Works of Authorship" shall have the meaning set forth in the definition of Intellectual Property.
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Annex I
CONDITIONS TO THE OFFER
THE CAPITALIZED TERMS USED HEREIN HAVE THE MEANINGS SET FORTH IN THE AGREEMENT AND PLAN OF MERGER TO WHICH THIS ANNEX I IS ATTACHED
Notwithstanding
any other provisions of the Offer and in addition to the Acquisition Sub's rights to extend, amend or terminate the Offer in accordance with the provisions of the
Agreement and applicable Law, Acquisition Sub shall not be required to accept for payment or, subject to any applicable rules and regulations of the SEC including Rule 14e-1(c) promulgated
under the Exchange Act, pay for any validly tendered shares of Common Stock and may delay the acceptance for payment of or, subject to the restrictions referred to above, the payment for, any validly
tendered shares of Common Stock, if (a) the Minimum Condition or the Termination Condition shall not have been satisfied at the Expiration Date, (b) any waiting period under the HSR Act
or any other applicable Antitrust Law applicable to the transactions contemplated by the Agreement has not expired or terminated at or prior to the Expiration Date, or (c) any of the following
conditions exist or has occurred and is continuing at the Expiration Date:
(i) any
Governmental Authority of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any Law or Order which is then in effect and has the
effect of making the Offer or the Merger illegal or otherwise prohibiting, restraining or preventing the consummation of the Offer or the Merger
(provided that Parent and Acquisition Sub have used its reasonable best efforts to oppose any such action by such Governmental Authority);
(ii) (A)
the representations and warranties of the Company contained in Section 4.3(a)-(d) (Capitalization) of the
Agreement shall not be true and correct in all respects when made and at and as of immediately prior to the expiration of the Offer as if made at and as of such time (other than such representations
and warranties that by their terms address matters only as of another specified time, which shall be required to be true and correct in all respects only as of such time) except for any failures to be
so true and correct that, individually or in the aggregate, are de minimis; (B) the representations and warranties of the Company contained in Section 4.1 (Organization and Qualification; Subsidiaries) (solely as it applies to the due incorporation and valid existence of the Company), Section 4.2
(Certificate of Incorporation and By-laws) (solely as it applies to the Certificate of Incorporation or the By-Laws) or Section 4.4 (Authority Relative to Agreement) of the Agreement shall not be
true and correct in all material respects when made and at and as of
immediately prior to the expiration of the Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified
time, which shall be required to be true and correct in all material respects only as of such time); (C) the representations and warranties of the Company contained in Section 4.9(a)(ii) (No
Company Material Adverse Effect) of the Agreement shall not be true and correct in all respects when made and at and as of
immediately prior to the expiration of the Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified
time, which shall be required to be true and correct in all respects only as of such time); and (D) all of the remaining representations and warranties of the Company set forth in the
Agreement, without giving effect to materiality or "Company Material Adverse Effect" qualifications, shall not be true and correct when made and at and as of immediately prior to the expiration of the
Offer as if made at and as of such time (other than such representations and warranties that by their terms address matters only as of another specified time, which shall be required to be true and
correct only as of such time), except with respect to this clause (D), where the failure of such representations and warranties to be so true and correct would not have, and would not
reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;
I-1
(iii) the
Company shall have breached or failed to perform or to comply with, in any material respect, any agreement or covenant to be performed or complied with by it under
the Agreement at or prior to the Acceptance Time (and such breach or failure shall not have been waived by Parent or Acquisition Sub or cured by the Company at or prior to the Acceptance Time);
(iv) since
the date of the Agreement, a Company Material Adverse Effect (or any event, development or circumstance that would reasonably be expected to have, individually or
in the aggregate, a Company Material Adverse Effect) shall have occurred and shall be continuing as of the Expiration Date;
(v) Acquisition
Sub shall have failed to receive a certificate of the Company, executed by the Chief Executive Officer or the Chief Financial Officer of the Company, dated
as of the Expiration Date, to
the effect that none of the conditions set forth in paragraphs (c)(ii), (c)(iii) or (c)(iv) of this Annex I have occurred; or
(vi) the
Company Board shall have withdrawn or modified (including by amendment of the Schedule 14D-9) in a manner adverse to Parent or Acquisition Sub the Company
Recommendation or shall have made a Change of Recommendation.
The
foregoing conditions, other than the Minimum Condition and the Termination Condition, are for the sole benefit of Parent and Acquisition Sub and may be asserted by Parent or
Acquisition Sub regardless of the circumstances giving rise to any such conditions and may be waived by Parent or Acquisition Sub in writing in whole or in part at any time and from time to time in
their sole discretion, in each case subject to the terms of the Agreement. Any reference in this Annex I or the Agreement to a condition or
requirement being satisfied shall be deemed to be satisfied if such condition or requirement is so waived. The foregoing conditions shall be in addition to, and not a limitation of, the rights of
Parent and Acquisition Sub to extend, terminate, amend and/or modify the Offer pursuant to the terms and conditions of the Agreement. The failure by Parent or Acquisition Sub at any time to exercise
any of the foregoing rights shall not be deemed a waiver of any such right and each such right shall be deemed an ongoing right which may be asserted at any time and from time to time.
I-2
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Exhibit 99.1
AOL TO DEEPEN ITS PROGRAMMATIC LEADERSHIP WITH
AGREEMENT TO ACQUIRE MILLENNIAL MEDIA
ONE by AOL Will be the Largest Open and
Mobile-First Programmatic
Platform in Market
AOL's Suite of Publisher Offerings Will be Enhanced with a Leading Monetization
Platform for App Developers with More than 65,000 Apps
NEW YORK, September 3, 2015AOL today announced its continued investment in cross platform programmatic technology for marketers and publishers
by signing an agreement to acquire Millennial Media, Inc. (NYSE: MM), a leading end-to-end mobile platform, for $1.75 per share of Millennial Media common stock.
Following
AOL's recent acquisition by Verizon, which operates the nation's largest and most reliable wireless network, and its global enterprise-level partnership with
Microsoft, today's announcement further strengthens AOL's mobile capabilities and underlines its position as the first global mobile
media technology company. AOL now operates scaled global content brands, a scaled global content delivery network, a scaled global programmatic advertising platform and a subscription services
platform.
With
the acquisition of Millennial Media, AOL will:
-
- Add a leading supply-side platform for app monetization with over 65,000 apps to its publisher suite of offerings
-
- Add significant mobile brand advertising scale across ONE by AOL
-
- Have access to approximately 1 billion global active unique users and robust addressable and cross-screen targeting
capabilities
-
- Accelerate its mobile position in key international markets, including Singapore, Japan, UK, France and Germany
-
- Add world-class engineering, sales and product talent that specialize in mobile to AOL
"AOL
is well positioned as consumers spend more and more time on mobile devices, and as advertisers, agencies and publishers become more reliant on programmatic monetization tools," said
Bob Lord, President, AOL. "As we continue to invest in our platforms and technology, the acquisition of Millennial Media accelerates our competitive mobile offering in ONE by AOL and enhances our
current publisher offering with an 'all in' monetization platform for app developers."
"By
joining AOL, we will be adding additional mobile expertise to AOL's growing technology assets," said Michael Barrett, President & CEO of Millennial Media. "I am
excited by what this acquisition means for our shareholders, our employees and our partners."
According
to eMarketer, 69% of mobile ad spend will be bought and sold programmatically (more than $14 billion), and programmatic video will reach $4 billion by 2016.*
Furthermore, Cowen & Company expects mobile display and video advertising to grow from approximately $3.8 billion in 2015 to $9.2 billion in 2018 at a compound annual growth rate
of 35%.**
Founded
in 2006, Millennial Media is headquartered in Baltimore, MD and has additional U.S. offices in Atlanta, Boston, New York and San Francisco, and international offices in Hamburg,
London, Paris, Singapore and Tokyo. Millennial Media's portfolio of assets includes acquisitions of TapMetrics, Condaptive, Metaresolver, Jumptap and Nexage.
- *
- eMarketer (October 2014)US Mobile Programmatic Display Ad Spending
- **
- Cowen and Company, "Annual Ad Buyer Survey III: 2015 Outlook," January 12, 2015
The
transaction will take the form of a tender offer followed by a merger, with Millennial Media becoming a wholly owned subsidiary of AOL upon completion. The transaction is subject to
customary regulatory approvals and other closing conditions, and is expected to close this fall.
Goldman,
Sachs & Co. served as AOL's financial advisor on the transaction, and Wachtell, Lipton, Rosen & Katz served as AOL's legal
advisor.
LUMA
Partners served as Millennial Media's financial advisor on the transaction, and Goodwin Procter LLP served as Millennial Media's legal advisor.
About AOL
AOL is a media technology company with a mission to simplify the internet for consumers and creators by unleashing the world's best
builders of culture and code. As one of the largest online properties with over 350 million monthly global consumers of its premium brands, AOL is at the center of disruption of how content is
being produced, distributed, consumed and monetized by connecting publishers with advertisers on its global, programmatic content and advertising platforms. AOL's opportunity lies in
shaping the future of the digitally connected world for decades to come. AOL is a subsidiary of Verizon.
About Millennial Media
Millennial Media (NYSE: MM) is the leading independent mobile ad marketplace, making mobile simple for the world's top brands, app
developers and mobile web publishers. The company's unique data and technology assets enable its advertising clients to connect
with their target audiences at scale. Millennial Media also drives monetization for its publisher and developer partners by connecting them to networks, advertisers and an RTB exchange. For more
information, visit www.millennialmedia.com.
Forward-Looking Statements
In this communication we have made forward-looking statements regarding the proposed transaction with
Millennial Media and other matters. These statements are based on our estimates and assumptions and are subject to risks and uncertainties, which could affect future results and could cause those
results to differ materially from those expressed in the forward-looking statements. Forward-looking statements include those preceded or followed by the words "anticipates," "believes," "estimates,"
"hopes" or similar expressions. Except as required by law, we are under no obligation to, and expressly disclaim any obligation to, update or alter any forward-looking statements whether as a result
of new information, subsequent events or otherwise.
Additional Information and Where to Find It
The tender offer for the outstanding shares of Millennial Media common stock has not yet commenced. This
communication is for informational purposes only and is neither an offer to purchase nor a solicitation of an offer to sell shares of Millennial Media common stock, nor is it a substitute for the
tender offer materials that AOL and its acquisition subsidiary will file with the SEC upon commencement of the tender offer. At the time the tender offer is commenced, AOL and its acquisition
subsidiary will file tender offer materials on Schedule TO, and Millennial Media will file a Solicitation/Recommendation Statement on Schedule 14D-9, with the SEC with respect to
the tender offer. The tender offer materials (including an Offer to Purchase, a related Letter of Transmittal and certain other tender offer documents) and the Solicitation/Recommendation Statement
will contain important information. Holders of shares of Millennial Media common stock are urged to read these documents when they become available (as each may be amended or supplemented from time to
time) because they will contain important information that holders of shares of Millennial Media common stock should consider before making any decision regarding tendering their shares. The Offer to
Purchase, the related Letter of Transmittal and certain other tender offer documents, as well as the Solicitation/Recommendation Statement, will be made available to all holders of shares of
Millennial Media common stock at no expense to them. The tender offer materials and the Solicitation/Recommendation Statement will be made available for free at the SEC's website at
www.sec.gov. Additional copies of the tender offer materials may be obtained for free at AOL's website
at http://ir.aol.com or by contacting AOL at 770 Broadway, New York, New York 10003, Attention: Corporate Secretary.
#
# #
Media Contact:
Caroline Campbell, AOL
c.campbell@teamaol.com
404-444-7970
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AOL TO DEEPEN ITS PROGRAMMATIC LEADERSHIP WITH AGREEMENT TO ACQUIRE MILLENNIAL MEDIA ONE by AOL Will be the Largest Open and Mobile-First Programmatic Platform in Market AOL 's Suite of Publisher Offerings Will
be Enhanced with a Leading Monetization Platform for App Developers with More than 65,000 Apps
Millenial (NYSE:MM)
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