Filed by the
Registrant ☒ Filed by a party other than the
Registrant ☐
A special meeting of stockholders of West Corporation, a Delaware corporation (which we refer to as
West
or the
Company
), will be held on [●], 2017, at [●] a.m. Central Time. This special meeting will be a completely virtual meeting of stockholders, which will be conducted solely
via webcast. You will be able to attend the special meeting online, vote your shares and submit your questions during the meeting by visiting
www.virtualshareholdermeeting.com/WSTC2017SM
. Please note that you will not be able to attend the
special meeting in person. The purpose of the meeting is to consider and vote on proposals relating to the proposed acquisition of West by Mount Olympus Holdings, Inc., a Delaware corporation (which we refer to as
Parent
),
for $23.50 per share in cash. Parent is an affiliate of certain funds managed by affiliates of Apollo Global Management, LLC. Regardless of whether you plan to attend the special meeting online, we encourage you to vote your shares by mail, by
telephone or through the Internet following the procedures outlined below.
On May 9, 2017, West entered into an Agreement and Plan
of Merger (which we refer to as the
merger agreement
) with Parent and Olympus Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of Parent (which we refer to as
Sub
), providing
for, subject to the satisfaction or waiver of specified conditions, the acquisition of West by Parent at a price of $23.50 per share in cash. Subject to the terms and conditions of the merger agreement, Sub will be merged into West (which we refer
to as the
merger
), with West surviving the merger as a wholly owned subsidiary of Parent. At the special meeting, West will ask you to adopt the merger agreement, among other proposals related to the merger.
At the effective time of the merger, each share of West common stock issued and outstanding immediately prior to the effective time (other
than (i) shares held by stockholders of West who have properly exercised and perfected appraisal rights under Delaware law, (ii) shares that are held in the treasury of West or (iii) shares that are owned of record by any wholly owned
subsidiary of West, Parent or any wholly owned subsidiary of Parent) will be converted into the right to receive $23.50 per share in cash, without interest, subject to any applicable withholding taxes.
The proxy statement accompanying this letter provides you with more specific information concerning the special meeting, the merger agreement,
the merger and the other transactions contemplated by the merger agreement. We encourage you to carefully read the accompanying proxy statement and the copy of the merger agreement attached as
Annex
A
to the proxy
statement.
After reading the accompanying proxy statement, please make sure to vote your shares promptly by completing, signing and
dating the accompanying proxy card and returning it in the enclosed prepaid envelope or by voting by telephone or through the Internet by following the instructions on the accompanying proxy card. Instructions regarding all three methods of voting
are provided on the proxy card. If you hold shares through an account with a bank, broker, trust or other nominee, please follow the instructions you receive from your bank, broker, trust or other nominee to vote your shares.
Thank you in advance for your continued support and your consideration of this matter.
Thomas B. Barker
Neither the United States Securities and Exchange Commission nor any state securities regulatory agency has approved or disapproved the
merger, passed upon the merits or fairness of the merger or passed upon the adequacy or accuracy of the disclosure in this document. Any representation to the contrary is a criminal offense.
The accompanying proxy statement is dated [●], 2017 and is first being mailed to West stockholders on or about [●], 2017.
THIS PROXY STATEMENT DOES NOT CONSTITUTE THE SOLICITATION OF A
PROXY IN ANY JURISDICTION TO OR FROM ANY PERSON TO WHOM OR FROM WHOM IT IS UNLAWFUL TO MAKE SUCH PROXY SOLICITATION IN THAT JURISDICTION. YOU SHOULD RELY ONLY ON THE INFORMATION CONTAINED OR INCORPORATED BY REFERENCE IN THIS PROXY STATEMENT TO VOTE
YOUR SHARES AT THE SPECIAL MEETING. WE HAVE NOT AUTHORIZED ANYONE TO PROVIDE YOU WITH INFORMATION THAT IS DIFFERENT FROM WHAT IS CONTAINED IN THIS PROXY STATEMENT. THIS PROXY STATEMENT IS DATED [●], 2017. YOU SHOULD NOT ASSUME THAT THE
INFORMATION CONTAINED IN THIS PROXY STATEMENT IS ACCURATE AS OF ANY DATE OTHER THAN THAT DATE, AND THE MAILING OF THIS PROXY STATEMENT TO STOCKHOLDERS SHALL NOT CREATE ANY IMPLICATION TO THE CONTRARY.
115
ANNEX A
EXECUTION VERSION
AGREEMENT AND PLAN OF MERGER
among
MOUNT OLYMPUS
HOLDINGS, INC.,
OLYMPUS MERGER SUB, INC.
and
WEST CORPORATION
Dated as of May 9, 2017
TABLE OF CONTENTS
ARTICLE I
THE MERGER
|
|
|
|
|
|
|
Section 1.01
|
|
The Merger
|
|
|
A-1
|
|
Section 1.02
|
|
Closing
|
|
|
A-2
|
|
Section 1.03
|
|
Effective Time
|
|
|
A-2
|
|
Section 1.04
|
|
Organizational Documents, Directors and Officers of the Surviving Corporation
|
|
|
A-2
|
|
|
ARTICLE II
|
|
EFFECT OF THE MERGER ON CAPITAL STOCK
|
|
|
|
|
Section 2.01
|
|
Conversion of Securities
|
|
|
A-3
|
|
Section 2.02
|
|
Exchange of Certificates; Payment for Shares
|
|
|
A-3
|
|
Section 2.03
|
|
Treatment of Company Options, Stock Units, Restricted Stock and Equity Plans
|
|
|
A-5
|
|
Section 2.04
|
|
Dissenting Shares
|
|
|
A-6
|
|
Section 2.05
|
|
Withholding Rights
|
|
|
A-7
|
|
Section 2.06
|
|
Further Actions
|
|
|
A-7
|
|
|
ARTICLE III
|
|
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
|
|
|
|
Section 3.01
|
|
Organization and Qualification; Subsidiaries
|
|
|
A-7
|
|
Section 3.02
|
|
Capitalization
|
|
|
A-8
|
|
Section 3.03
|
|
Authority
|
|
|
A-9
|
|
Section 3.04
|
|
No Conflict; Required Filings and Consents
|
|
|
A-9
|
|
Section 3.05
|
|
Permits; Compliance with Laws
|
|
|
A-10
|
|
Section 3.06
|
|
Company SEC Documents; Financial Statements
|
|
|
A-11
|
|
Section 3.07
|
|
Information Supplied
|
|
|
A-12
|
|
Section 3.08
|
|
Internal Controls and Disclosure Controls
|
|
|
A-12
|
|
Section 3.09
|
|
Absence of Certain Changes
|
|
|
A-12
|
|
Section 3.10
|
|
Undisclosed Liabilities
|
|
|
A-13
|
|
Section 3.11
|
|
Litigation
|
|
|
A-13
|
|
Section 3.12
|
|
Employee Benefits
|
|
|
A-13
|
|
Section 3.13
|
|
Labor Matters
|
|
|
A-14
|
|
Section 3.14
|
|
Tax Matters.
|
|
|
A-14
|
|
Section 3.15
|
|
Properties
|
|
|
A-15
|
|
Section 3.16
|
|
Environmental Matters
|
|
|
A-15
|
|
Section 3.17
|
|
Intellectual Property
|
|
|
A-16
|
|
Section 3.18
|
|
Material Contracts
|
|
|
A-17
|
|
Section 3.19
|
|
Insurance
|
|
|
A-19
|
|
Section 3.20
|
|
Opinion of Financial Advisor
|
|
|
A-19
|
|
Section 3.21
|
|
Takeover Statutes
|
|
|
A-19
|
|
Section 3.22
|
|
Vote Required
|
|
|
A-19
|
|
Section 3.23
|
|
Brokers
|
|
|
A-19
|
|
Section 3.24
|
|
Existing Indentures
|
|
|
A-20
|
|
Section 3.25
|
|
Certain Payments
|
|
|
A-20
|
|
Section 3.26
|
|
Data Privacy and Security Matters
|
|
|
A-21
|
|
Section 3.27
|
|
Customers and Suppliers
|
|
|
A-21
|
|
Section 3.28
|
|
Affiliate Transactions
|
|
|
A-21
|
|
Section 3.29
|
|
Acknowledgment of No Other Representations or Warranties
|
|
|
A-21
|
|
i
|
|
|
|
|
|
|
|
ARTICLE IV
|
|
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
|
|
|
|
|
Section 4.01
|
|
Organization
|
|
|
A-22
|
|
Section 4.02
|
|
Authority
|
|
|
A-22
|
|
Section 4.03
|
|
No Conflict; Required Filings and Consents
|
|
|
A-22
|
|
Section 4.04
|
|
Information Supplied
|
|
|
A-23
|
|
Section 4.05
|
|
Litigation
|
|
|
A-23
|
|
Section 4.06
|
|
Capitalization and Operations of Sub; No Ownership of Company Common Stock
|
|
|
A-23
|
|
Section 4.07
|
|
Financing
|
|
|
A-24
|
|
Section 4.08
|
|
Guarantee
|
|
|
A-25
|
|
Section 4.09
|
|
Brokers
|
|
|
A-25
|
|
Section 4.10
|
|
Solvency
|
|
|
A-25
|
|
Section 4.11
|
|
Absence of Certain Arrangements
|
|
|
A-26
|
|
Section 4.12
|
|
Entity Structure
|
|
|
A-26
|
|
Section 4.13
|
|
Acknowledgment of No Other Representations or Warranties
|
|
|
A-26
|
|
|
ARTICLE V
|
|
COVENANTS
|
|
|
|
|
Section 5.01
|
|
Conduct of Business by the Company Pending the Merger
|
|
|
A-27
|
|
Section 5.02
|
|
Agreements Concerning Parent and Sub
|
|
|
A-29
|
|
Section 5.03
|
|
Solicitation; Change of Company Recommendation.
|
|
|
A-29
|
|
Section 5.04
|
|
Preparation of the Proxy Statement; Company Stockholder Meeting
|
|
|
A-32
|
|
Section 5.05
|
|
Access to Information
|
|
|
A-33
|
|
Section 5.06
|
|
Appropriate Action; Consents; Filings
|
|
|
A-34
|
|
Section 5.07
|
|
Financing
|
|
|
A-35
|
|
Section 5.08
|
|
Treatment of Existing Notes.
|
|
|
A-41
|
|
Section 5.09
|
|
Public Announcements
|
|
|
A-43
|
|
Section 5.10
|
|
Directors & Officers Indemnification and Insurance
|
|
|
A-43
|
|
Section 5.11
|
|
Takeover Statutes
|
|
|
A-45
|
|
Section 5.12
|
|
Employee Benefit Matters
|
|
|
A-45
|
|
Section 5.13
|
|
Expenses
|
|
|
A-46
|
|
Section 5.14
|
|
Rule 16b-3
Matters
|
|
|
A-46
|
|
Section 5.15
|
|
Defense of Litigation
|
|
|
A-46
|
|
Section 5.16
|
|
Deregistration; Delisting
|
|
|
A-46
|
|
Section 5.17
|
|
Notification
|
|
|
A-46
|
|
|
ARTICLE VI
|
|
CONDITIONS TO THE MERGER
|
|
|
|
|
Section 6.01
|
|
Conditions to Obligations of Each Party to Effect the Merger
|
|
|
A-47
|
|
Section 6.02
|
|
Conditions to the Obligations of Parent and Sub
|
|
|
A-47
|
|
Section 6.03
|
|
Conditions to the Obligations of the Company
|
|
|
A-48
|
|
Section 6.04
|
|
Frustration of Closing Conditions
|
|
|
A-48
|
|
|
ARTICLE VII
|
|
TERMINATION, AMENDMENT AND WAIVER
|
|
|
|
|
Section 7.01
|
|
Termination
|
|
|
A-48
|
|
Section 7.02
|
|
Effect of Termination
|
|
|
A-50
|
|
Section 7.03
|
|
Amendment
|
|
|
A-52
|
|
Section 7.04
|
|
Waiver
|
|
|
A-52
|
|
ii
|
|
|
|
|
|
|
|
ARTICLE VIII
|
|
GENERAL PROVISIONS
|
|
|
|
|
Section 8.01
|
|
Non-Survival
of Representations and
Warranties
|
|
|
A-53
|
|
Section 8.02
|
|
Notices
|
|
|
A-53
|
|
Section 8.03
|
|
Severability
|
|
|
A-54
|
|
Section 8.04
|
|
Entire Agreement
|
|
|
A-54
|
|
Section 8.05
|
|
Assignment
|
|
|
A-54
|
|
Section 8.06
|
|
Parties in Interest
|
|
|
A-54
|
|
Section 8.07
|
|
Mutual Drafting; Interpretation; Headings
|
|
|
A-55
|
|
Section 8.08
|
|
Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury
|
|
|
A-55
|
|
Section 8.09
|
|
Counterparts
|
|
|
A-56
|
|
Section 8.10
|
|
Specific Performance
|
|
|
A-57
|
|
Section 8.11
|
|
Non-Recourse
|
|
|
A-57
|
|
|
|
|
Annex I
|
|
Defined Terms
|
|
|
|
|
Exhibit A
|
|
Form of Amended and Restated Certificate of Incorporation of the Surviving Corporation
|
|
|
|
|
iii
AGREEMENT AND PLAN OF MERGER
, dated as of May 9, 2017
(this
Agreement
), by and among Mount Olympus Holdings, Inc., a Delaware corporation (
Parent
), Olympus Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (
Sub
),
and West Corporation, a Delaware corporation (the
Company
). Certain capitalized terms used in this Agreement are defined in
Annex I
, and other capitalized terms used in this Agreement are defined in the Sections where such
terms first appear.
RECITALS
WHEREAS
, the respective boards of directors of Parent, Sub and the Company have each approved the merger of Sub with and into the
Company (the
Merger
and, together with the other transactions contemplated by this Agreement, the
Transactions
) upon the terms and subject to the conditions set forth in this Agreement and in accordance with the
Delaware General Corporation Law (the
DGCL
), whereby each issued and outstanding share of Common Stock, par value $0.001 per share, of the Company (the
Company Common Stock
), other than Excluded Shares, will be
converted into the right to receive the Merger Consideration;
WHEREAS
, the board of directors of Parent has determined that this
Agreement and the Transactions are advisable and in the best interests of Parent and has approved this Agreement and the Transactions;
WHEREAS
, the board of directors of each of the Company (the
Company Board
) and Sub has (a) determined that this
Agreement and the Merger are in the best interests of such corporation and its stockholders, (b) approved this Agreement and the Transactions and declared advisable this Agreement and the consummation by such corporation of the Merger and the
other Transactions and (c) on the terms and subject to the conditions set forth in this Agreement, resolved to recommend that its stockholders adopt this Agreement;
WHEREAS
, concurrently with the execution and delivery of this Agreement, and as a condition to the willingness of the Company to enter
into this Agreement, (a) Apollo Investment Fund VIII, L.P., Apollo Overseas Partners (Delaware 892) VIII, L.P., Apollo Overseas Partners (Delaware) VIII, L.P. and AOP VIII (AIV), L.P. (collectively, the
Guarantors
) are
entering into a guarantee pursuant to which the Guarantors are guaranteeing the performance and payment of certain of Parents and Subs obligations under this Agreement, subject to the terms and conditions set forth therein (the
Guarantee
) and (b) Parent has delivered the Financing Commitments to the Company;
WHEREAS
, concurrently
with the execution and delivery of this Agreement, and as a condition to the willingness of Parent and Sub to enter into this Agreement, certain stockholders of the Company are entering into voting and support agreements (the
Voting
Agreements
) with Parent to, among other things, provide for the voting of Shares in favor of the Transactions, on the terms and subject to the conditions set forth in the applicable Voting Agreements; and
WHEREAS
,
each of Parent, Sub and the Company desires to make certain representations, warranties, covenants and agreements in
connection with the Transactions and also to prescribe various conditions to the Transactions.
NOW, THEREFORE
, in consideration of
the foregoing and the mutual representations, warranties and covenants and subject to the conditions set forth in this Agreement, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
THE
MERGER
Section
1.01
The Merger
. Upon the terms and subject to the
conditions of this Agreement, and in accordance with the DGCL, at the Effective Time, Sub shall be merged with and into the Company, whereupon
the separate existence of Sub shall cease, and the Company shall continue as the surviving corporation (the
Surviving Corporation
) and shall succeed to and assume all the
rights and obligations of Sub and the Company in accordance with Section 259 of the DGCL. Without limiting the generality of the foregoing, at the Effective Time, all the properties, rights, privileges, powers and franchises of the Company and
Sub shall vest in the Surviving Corporation, and all debts, liabilities and duties of the Company and Sub shall become the debts, liabilities and duties of the Surviving Corporation by virtue of the Merger and without further act or deed by the
parties.
Section
1.02
Closing
. The closing of the Merger (the
Closing
) will take place at the offices of Wachtell, Lipton, Rosen & Katz, 51 West 52nd Street, New York, New York 10019, or at another place agreed to in writing by the parties, at 9:00 a.m. New York time on the second
(2nd) Business Day following the date on which each of the conditions set forth in
Article
VI
is satisfied, or to the extent permitted by applicable Law, waived by the party entitled to waive such condition (except in
any such case for any such conditions that by their nature can be satisfied only on the Closing Date, but subject to the satisfaction of such conditions or, to the extent permitted by applicable Law, waiver by the party entitled to waive such
conditions). Notwithstanding the foregoing, if the Marketing Period has not ended at the time of the satisfaction or waiver (to the extent permitted by applicable Law) of the last to be satisfied or waived of the conditions set forth in
Article
VI
, then the Closing will occur on the earlier of (i) any Business Day during the Marketing Period specified by Parent to the Company on no less than two (2) Business Days prior written notice to the
Company and (ii) the third (3
rd
) Business Day following the final day of the Marketing Period (subject, in the case of each of (i) and (ii), to the satisfaction or waiver (to the extent
permitted by applicable Law) of all of the conditions set forth in
Article
VI
at such time (except in any such case for any such conditions that by their nature can be satisfied only on the Closing Date, but subject to the
satisfaction of such conditions or, or to the extent permitted by applicable Law, waiver by the party entitled to waive such conditions). The date on which the Closing occurs is referred to herein as the
Closing Date
.
Section
1.03
Effective Time
. Concurrently with the Closing, Parent and the Company
shall file a certificate of merger with respect to the Merger (the
Certificate of Merger
) with the Secretary of State of the State of Delaware in such form as required by, and executed in accordance with, the applicable provisions
of 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 of the State of Delaware or at such other date and time as is agreed between the parties and
specified in the Certificate of Merger (such date and time, the
Effective Time
).
Section
1.04
Organizational Documents, Directors and Officers of the Surviving
Corporation
.
(a)
Organizational Documents
. At the Effective Time (i) the Company Charter, as in effect immediately
prior to the Effective Time, shall be amended and restated to read in its entirety as set forth in
Exhibit A
, and as so amended and restated shall be the certificate of incorporation of the Surviving Corporation, and (ii) the Company
By-laws shall be amended and restated in their entirety to read as the bylaws of Sub, as in effect immediately prior to the Effective Time, and as so amended and restated, shall be the
by-laws
of the Surviving
Corporation (except that references to the name of Sub shall be replaced by references to the name of the Surviving Corporation), in each case until thereafter amended in accordance with applicable Law and the applicable provisions of the
certificate of incorporation and
by-laws
of the Surviving Corporation.
(b)
Directors
. 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 Sub immediately prior to the Effective Time, to hold
office until their respective successors are duly elected or appointed and qualified or until their earlier death, resignation or removal in accordance with the certificate of incorporation and
by-laws
of the
Surviving Corporation.
(c)
Officers
. From and after the Effective Time, the officers of the Company immediately prior to
the Effective Time shall be the officers of the Surviving Corporation, to hold office until their respective successors
A-2
are duly appointed and qualified or until their earlier death, resignation or removal in accordance with the certificate of incorporation and
by-laws
of
the Surviving Corporation.
ARTICLE II
EFFECT OF THE MERGER ON CAPITAL STOCK
Section
2.01
Conversion of Securities
.
(a)
At the Effective Time, by virtue of the Merger and without any action on the part of Parent, Sub, the Company or the holders of any
capital stock of the Company or Sub:
(i)
Conversion of Company Common Stock
. Each share (each, a
Share
and collectively, the
Shares
) of Company Common Stock issued and outstanding immediately prior to the Effective Time, other than Excluded Shares, shall automatically be converted into the right to receive $23.50 in cash, without
interest (the
Merger Consideration
), and all of such Shares shall cease to be outstanding, shall cease to exist, and each certificate representing a Share (a
Certificate
) or
non-certificated
Share represented by book-entry (
Book-Entry Shares
) that formerly represented any of the Shares (other than Shares to be cancelled in accordance with
Section
2.01(a)(ii)
and other than Dissenting Shares) shall thereafter be cancelled and cease to have any rights with respect thereto, except the right to receive the Merger Consideration without interest thereon, subject
to
Section
2.05
.
(ii)
Cancellation of Company-Owned Shares and Parent-Owned Shares
. All Shares
that are held in the treasury of the Company or owned of record by any wholly-owned Company Subsidiary and all Shares owned of record by Parent or any of its wholly-owned Subsidiaries shall be cancelled and shall cease to exist, with no payment
being made with respect thereto.
(iii)
Capital Stock of Sub
. Each issued and outstanding share of capital stock of Sub
shall be automatically converted into and become one validly issued, fully paid and nonassessable share of common stock, par value $0.001 per share, of the Surviving Corporation.
(b)
Merger Consideration Adjustment
. If, from the date of this Agreement until the Effective Time, the number of outstanding
Shares shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization,
split-up,
combination,
exchange of shares, readjustment or other similar transaction, or a stock dividend or stock distribution thereon shall be declared with a record date within said period, the Merger Consideration shall be appropriately adjusted to provide Parent and
the holders of Shares the same economic effect as contemplated by this Agreement prior to such event;
provided
, that nothing in this
Section
2.01(b)
shall be construed to permit the Company or the Company
Subsidiaries to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
Section
2.02
Exchange of Certificates; Payment for Shares
.
(a)
Paying Agent
. Prior to the
Effective Time, Parent shall designate Wells Fargo Bank, N.A., or another U.S.-based nationally recognized financial institution reasonably acceptable to the Company to act as agent (the
Paying Agent
) for the holders of Shares to
receive the funds to which such holders shall become entitled pursuant to this Agreement. At or prior to the Effective Time, Parent shall deposit, or cause to be deposited, with the Paying Agent, by wire transfer of immediately available funds, an
amount in cash equal to the Aggregate Common Stock Consideration (the
Exchange Fund
). The Exchange Fund shall be for the benefit of the holders of Shares that are entitled to receive the Merger Consideration. In the event the
Exchange Fund shall be insufficient to make the payments contemplated by this
Section
2.02
, Parent shall promptly deposit, or cause to be deposited, with the Paying Agent by wire transfer of immediately available funds, an
amount in cash
A-3
sufficient to make such payments. Funds made available to the Paying Agent shall be invested by the Paying Agent, if and as directed by Parent, in short-term obligations of, or short-term
obligations fully guaranteed as to principal and interest by, the United States of America with maturities of no more than thirty (30) days, pending payment thereof by the Paying Agent to the holders of Shares pursuant to this
Section
2.02
;
provided
, that no investment of such deposited funds shall relieve Parent, the Surviving Corporation or the Paying Agent from promptly making the payments required by this
Section
2.02
, and following any losses from any such investment, Parent shall promptly deposit with the Paying Agent by wire transfer of immediately available funds, for the benefit of the holders of Shares, an amount in
cash equal to the amount of such losses, which additional funds will be held and disbursed in the same manner as funds initially deposited with the Paying Agent to make the payments contemplated by this
Section
2.02
. Any
interest or income produced by such investments will be payable to Sub or Parent, as Parent directs. Parent shall direct the Paying Agent to hold the Exchange Fund for the benefit of the former holders of Shares and to make payments from the
Exchange Fund in accordance with this
Section
2.02
. The Exchange Fund shall not be used for any purpose other than to fund payments pursuant to this
Section
2.02
, except as expressly provided for
in this Agreement.
(b)
Procedures for Surrender
.
(i)
Certificated Shares
. As promptly as practicable after the Effective Time (but in no event later than the third (3rd)
Business Day following the Effective Time), Parent shall cause the Paying Agent to mail to each holder of record of a Certificate whose Shares were converted into the right to receive the Merger Consideration pursuant to this Agreement: (i) a
letter of transmittal in customary form, which shall specify that delivery shall be effected, and risk of loss and title to the Certificate shall pass, only upon delivery of the Certificate (or affidavit of loss in lieu thereof in accordance with
Section
2.02(e)
to the Paying Agent) and shall otherwise be in such form and have such other provisions as Parent may reasonably specify and (ii) instructions for effecting the surrender of the Certificate in exchange
for payment of the Merger Consideration. Upon surrender of a Certificate (or affidavit of loss in lieu thereof in accordance with
Section
2.02(e)
) for cancellation to the Paying Agent, and upon delivery of a letter of
transmittal, duly executed and in proper form, with respect to such Certificate, the holder of such Certificate shall be entitled to receive in exchange therefor the Merger Consideration for each Share formerly represented by such Certificate, and
the Certificate so surrendered shall forthwith be cancelled. In the event of a transfer of ownership of Shares that was not registered in the transfer records of the Company, payment of the Merger Consideration may be made to a person other than the
person in whose name the Certificate so surrendered is registered,
provided
that it shall be a condition precedent of payment that (x) such Certificate shall be properly endorsed or shall otherwise be in proper form for transfer and
(y) the person requesting such payment shall have paid any and all transfer and other similar Taxes required by reason of the payment of the Merger Consideration to a person other than the registered holder of the Certificate so surrendered or
shall have established to the reasonable satisfaction of Parent that such Taxes either have been paid or are not required to be paid.
(ii)
Book-Entry Shares
. Any holder of Book-Entry Shares shall not be required to deliver a Certificate or an executed letter of
transmittal to the Paying Agent to receive the Merger Consideration that such holder is entitled to receive pursuant to this
Article
II
. In lieu thereof, each registered holder of one or more Book-Entry Shares shall
automatically upon the Effective Time be entitled to receive, and the Surviving Corporation shall cause the Paying Agent to pay and deliver as promptly as reasonably practicable after the Effective Time (but in no event more than three
(3) Business Days thereafter), the Merger Consideration for each Book-Entry Share. Payment of the Merger Consideration with respect to Book-Entry Shares shall only be made to the person in whose name such Book-Entry Shares are registered.
(iii)
No interest shall be paid or accrue on any portion of the Merger Consideration payable upon surrender of any Certificate (or
affidavit of loss in lieu thereof in accordance with
Section
2.02(e)
) or in respect of any Book-Entry Share.
(c)
Transfer Books; No Further Ownership Rights in Shares
. As of the Effective Time, the stock transfer books of the Company
shall be closed, and thereafter there shall be no further registration of transfers of Shares
A-4
on the records of the Company. The Merger Consideration paid in accordance with the terms of this
Article
II
shall be deemed to have been paid in full satisfaction of
all rights pertaining to such Shares. From and after the Effective Time, the holders of Shares outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such Shares except as otherwise provided for in this
Agreement or by applicable Law. If, after the Effective Time, Certificates are presented to the Surviving Corporation for any reason, they shall be cancelled and exchanged as provided in this Agreement.
(d)
Termination of Exchange Fund; Abandoned Property; No Liability
. At any time following the first anniversary of the Effective
Time, the Surviving Corporation shall be entitled to require the Paying Agent to deliver to it any portion of the Exchange Fund (including any interest received with respect thereto) not disbursed to or claimed by holders of Shares, and thereafter
such holders shall be entitled to look only to the Surviving Corporation (subject to abandoned property, escheat or other similar Laws) as general creditors thereof with respect to the Merger Consideration payable upon due surrender of their
Shares
and compliance with the procedures set forth in
Section
2.02(b)
, without interest. Any amounts remaining unclaimed by such holders at such time at which such amounts would otherwise escheat to or become
property of any Governmental Entity shall become, to the extent permitted by applicable Law, the property of the Surviving Corporation or its designee, free and clear of all claims or interest of any person previously entitled thereto.
Notwithstanding the foregoing, none of Parent, the Surviving Corporation or the Paying Agent shall be liable to any holder of a Share for Merger Consideration properly delivered to a public official in compliance with any applicable abandoned
property, escheat or similar Law.
(e)
Lost, Stolen or Destroyed Certificates
. If any Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit (in form and substance reasonably acceptable to the Paying Agent) of that fact by the person claiming such Certificate to be lost, stolen or destroyed, the Paying Agent or the Surviving
Corporation, as applicable, shall issue in exchange for such lost, stolen or destroyed Certificate the portion of the Aggregate Common Stock Consideration into which the Shares formerly represented by such Certificate were converted pursuant to
Section
2.01(a)(i)
;
provided
,
however
, that the Paying Agent may, in its reasonable discretion and as a condition precedent to the payment of such Merger Consideration, require the owner of such lost, stolen
or destroyed Certificate to provide a bond in a customary amount.
Section
2.03
Treatment of Company Options, Stock Units, Restricted Stock and Equity Plans
.
(a)
Treatment of Company Options
.
Prior to the Effective Time, the Company Board (or, if appropriate, any committee thereof) shall adopt appropriate resolutions to provide that, immediately prior to the Effective Time, each outstanding option to purchase Shares granted under a
Company Stock Plan (the
Company Options
) shall be fully vested and cancelled and, in exchange therefor, each holder of any such cancelled Company Option shall be entitled to receive, in consideration of the cancellation of such
Company Option and in settlement therefor, a payment in cash of an amount equal to the product of (i) the total number of Shares subject to such cancelled Company Option and (ii) the excess, if any, of (A) the Merger Consideration
over (B) the exercise price per Share subject to such cancelled Company Option, without interest (such amounts payable hereunder, the
Option Payments
);
provided
,
however
, that (x) any such Company Option
with respect to which the exercise price per Share subject thereto is equal to or greater than the Merger Consideration shall be cancelled in exchange for no consideration and (y) such Option Payments may be reduced by the amount of any
required Tax withholdings as provided in
Section
2.05
. From and after the Effective Time, no Company Option shall be exercisable, and each Company Option shall only entitle the holder thereof to the payment provided for in
this
Section
2.03(a)
.
(b)
Treatment of Stock Units
. Prior to the Effective Time, the Company
Board (or, if appropriate, any committee thereof) shall adopt appropriate resolutions to provide that, immediately prior to the Effective Time, each outstanding award of restricted stock units or deferred stock units (other than notional Shares
credited under the Deferred Compensation Plan) (
Stock Units
) with respect to Shares (each, a
Stock Unit Award
) granted pursuant to a Company Stock Plan shall be converted into a right to receive a payment in
cash of an amount equal to the sum of (i) the product of (A) the Merger Consideration multiplied by (B) the number of Stock Units
A-5
subject to such Stock Unit Award, without interest (such amounts payable hereunder, the
Stock Unit Payments
) and (ii) the dividend equivalents accrued on such Stock Unit
Award prior to the Closing Date, which shall be funded, and become vested and payable, in accordance with the terms and conditions of the applicable award agreement relating to such Stock Unit Award. In the case of a Stock Unit Award that is subject
to performance-based vesting conditions, the number of Shares subject to such Stock Unit Award that are earned based on performance shall be determined as of the Closing Date in accordance with the terms of the applicable award agreement, as such
agreement may be amended as permitted under
Section
5.01
.
(c)
Treatment of Restricted Stock
. Upon
the terms and subject to the conditions set forth in this Agreement and without any action on the part of Parent, Sub, the Company or any holder of an outstanding award of restricted stock (
Restricted Stock
) granted pursuant to a
Company Stock Plan (a
Restricted Stock Award
), as of the Effective Time each holder of Restricted Stock shall be entitled to receive an amount equal to the sum of (i) the Merger Consideration in accordance with
Sections
2.01
and
2.02
multiplied by the number of Shares subject to such Restricted Stock Award (less any required Tax withholdings as provided in
Section
2.05
) and (ii) the dividend equivalents accrued on such
Restricted Stock Award prior to the Closing Date, which Merger Consideration shall be funded, and become vested and payable, in accordance with the terms and conditions of the applicable award agreement relating to such Restricted Stock Award. In
the case of a Restricted Stock Award that is subject to performance-based vesting conditions, the number of Shares subject to such Restricted Stock Award that are deemed to have been earned shall be equal to the maximum number of shares subject to
such award, in accordance with the terms of the applicable award agreement.
(d)
Treatment of Stock Purchase Plan
. The
Company shall, prior to the Closing Date, take all actions necessary to terminate the Company Stock Purchase Plan and all outstanding rights thereunder as of immediately prior to the Effective Time;
provided
that from and after the date
hereof, the Company shall take all actions necessary to (i) ensure that the current offering period shall end on June 30, 2017 and the Company Stock Purchase Plan shall thereafter be suspended, such that no new offering period shall
commence after the date hereof, (ii) ensure that no new participants be permitted to participate in the Company Stock Purchase Plan and that the existing participants thereunder may not increase their elections with respect to the offering
period in effect on the date hereof (the
Final Payment Period
) and (iii) provide notice to participants describing the treatment of the Company Stock Purchase Plan pursuant to this
Section
2.03(d)
.
(e)
Deferred Compensation Plan
. Upon the terms and subject to the conditions set forth in this Agreement and without any
action on the part of Parent, Sub, the Company or any participant in the Companys Nonqualified Deferred Compensation Plan (the
Deferred Compensation Plan
), any participant accounts (or portions thereof) which are notionally
invested in Shares immediately prior to the Effective Time (
Notional Shares
) shall be notionally reinvested in one or more other Measurement Funds (as defined in Deferred Compensation Plan) as determined by the Company
prior to the Effective Time until such accounts are distributed to the participants in the Deferred Compensation Plan.
(f)
Termination of Share Rights under Company Stock Plans
. As of the Effective Time, no further Company Options, Stock Units, Restricted Stock, Notional Shares or other rights with respect to Shares shall be granted thereunder.
(g)
Parent Funding
. At the Effective Time, Parent shall deposit with the Surviving Corporation cash in the amount necessary to
make the payments required under this
Section
2.03(a)
, (b) and (c), as applicable, and Parent shall cause the Surviving Corporation to make the payments required under this
Section
2.03
through the
Companys payroll agent as promptly as practicable after the Effective Time (but in no event later than three (3) Business Days after the Effective Time), or at such later time as provided under the terms of the Stock Unit Awards
referenced in
Section
2.03(b)
or the terms of the Restricted Stock Awards referenced in
Section
2.03(c)
, as applicable, subject in all cases to
Section
2.05
and the
applicable terms of the Company Stock Plans.
Section
2.04
Dissenting Shares
.
Notwithstanding anything in this Agreement to the contrary, any issued and outstanding Shares held by a person (a
Dissenting Stockholder
) who is entitled to appraisal rights under
A-6
Section 262 of the DGCL and has complied with all the provisions of the DGCL concerning the right of holders of Shares to require appraisal of such Shares (
Dissenting
Shares
) shall, at the Effective Time, not be converted into the right to receive the Merger Consideration as described in
Section
2.01(a)(i)
, but shall rather become cancelled and cease to have any rights with
respect thereto, other than the right to receive such consideration as may be determined to be due to such Dissenting Stockholder pursuant to the procedures set forth in Section 262 of the DGCL. If such Dissenting Stockholder withdraws such
Dissenting Stockholders demand for appraisal or fails to perfect or otherwise loses such Dissenting Stockholders right of appraisal with respect to such Shares, in any case pursuant to the DGCL, such Shares shall be deemed not to be
Dissenting Shares and shall be deemed to be converted as of the Effective Time into the right to receive the Merger Consideration for each such Share, without interest and subject to
Section
2.05
. The Company shall give
Parent prompt notice of any written demands for appraisal of Shares received by the Company, withdrawals of such demands and any other instruments served on the Company pursuant to Section 262 of the DGCL and the opportunity to participate in
negotiations and proceedings with respect to demands for appraisal in respect of Dissenting Shares. The Company shall not, without the prior written consent of Parent, make any payment with respect to, or settle or offer to settle, any such demands.
Section
2.05
Withholding Rights
. Notwithstanding anything to the contrary
contained herein, each of Parent, 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 other applicable state, local or foreign Tax Law. To the extent that amounts are deducted and withheld in accordance with this
Section
2.05
by or on behalf of Parent, Sub,
the Surviving Corporation or the Paying Agent, as applicable, such deducted and withheld amounts (a) shall be remitted by Parent, Sub, the Surviving Corporation or the Paying Agent, as applicable, to the applicable Governmental Entity, and
(b) 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.
Section
2.06
Further Actions
. If, at any time after the Effective Time, any
further action is reasonably determined by Parent to be necessary or desirable to carry out the purposes of this Agreement or to vest the Surviving Corporation with full right, title and possession of and to all rights and property of Sub and the
Company, the officers and directors of the Surviving Corporation and Parent shall be fully authorized (in the name of Sub, the Company and otherwise) to take such action.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except (a) as disclosed in the Company SEC Documents filed or furnished prior to the date of this Agreement, other than disclosures in
the Risk Factors sections of any such filings and any disclosure of risks included in any forward-looking statements disclaimer contained in any such filings, or (b) as disclosed in the corresponding section of the
separate disclosure letter that has been delivered by the Company to Parent prior to the execution of this Agreement, including the documents attached to or incorporated by reference in such disclosure letter (the
Company Disclosure
Letter
) (it being agreed that disclosure of any item in any section or subsection of the Company Disclosure Letter shall also be deemed to be disclosed with respect to any other section or subsection in this Agreement to which the
relevance of such item is reasonably apparent), the Company hereby represents and warrants to Parent and Sub as follows:
Section
3.01
Organization and Qualification; Subsidiaries
.
(a)
The Company and each Company
Subsidiary is a corporation or other legal entity duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization (in the case of good standing, to the extent such
jurisdiction recognizes such concept) except, with respect to the Company Subsidiaries, where such failure, individually or in the aggregate, would not reasonably
A-7
be expected to be materially adverse to the Company. The Company and each Company Subsidiary has requisite corporate or other legal entity, as the case may be, power and authority to own, lease
and operate its properties and assets and to carry on its business as it is now being conducted, except where the failure to have such power and authority, individually or in the aggregate, would not reasonably be expected to have a Company Material
Adverse Effect. The Company and each Company Subsidiary is duly qualified to do business and is in good standing in each jurisdiction where the ownership, leasing or operation of its properties or assets or the conduct of its business requires such
qualification, except where the failure to be so qualified or in good standing, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(b)
The Company has made available to Parent true and complete copies of (i) the Amended and Restated Certificate of Incorporation
of the Company, as amended (the
Company Charter
), and (ii) the Third Amended and Restated Bylaws of the Company (the
Company By-laws
), in each case as amended through the date hereof. Each of the Company
Charter and the Company By-laws is in full force and effect, and the Company is in material compliance with the provisions thereof.
(c)
Section 3.01(c) of the Company Disclosure Letter sets forth for each Company Subsidiary (i) its name and jurisdiction of
organization, (ii) its form of organization and (iii) the holders of its equity ownership interests. Neither the Company nor any Company Subsidiary, directly or indirectly, owns any equity interest in any person other than the Company
Subsidiaries. The Company has delivered or made available to Parent accurate and complete in all material respects copies of the certificate of incorporation, bylaws and other charter and organizational documents of each of the Company Subsidiaries,
including all amendments thereto, as in effect on the date hereof.
Section
3.02
Capitalization
.
(a) The authorized capital stock of the Company consists of 475,000,000 Shares and 25,000,000 shares of the
Companys preferred stock, par value $0.001 per share (
Company Preferred Stock
). As of the close of business on May 4, 2017 (the
Specified Date
), (i) 85,154,906 Shares were issued and
outstanding (of which 1,590,627 Shares constitute Restricted Stock), all of which were duly authorized, validly issued, fully paid and nonassessable, and free of preemptive rights, (ii) no shares of Company Preferred Stock were issued and
outstanding, and (iii) 3,091,811 Shares were held in treasury. No Company Subsidiary owns any Shares or has any options, warrants, calls, subscriptions or other rights, convertible securities, agreements or commitments of any character
obligating the Company to issue any Shares or other equity interest (or to pay any amount based on the value of Shares or such other equity interest) in the Company to such Company Subsidiary.
(b) As of the close of business on the Specified Date, the Company had no Shares or Company Preferred Stock reserved for issuance, except for
11,327,947 Shares reserved for issuance pursuant to the Company Stock Plans (including 2,093,532 Shares for outstanding Company Options, 682,748 Shares for outstanding Stock Units, 1,530,610 Shares for outstanding Notional Shares, and 880,197 Shares
reserved for issuance pursuant to the Company Stock Purchase Plan) (calculated, with respect to outstanding Stock Unit Awards that are subject to performance-based vesting conditions, assuming that the performance goals have been satisfied at 100%
of the target level of performance). All Shares subject to issuance under the Company Stock Plans, upon issuance prior to the Effective Time on the terms and conditions specified in the instruments pursuant to which they are issuable, will be
duly authorized, validly issued, fully paid and nonassessable, and free of preemptive rights. All Company Options were granted with a per share exercise price at least equal to the fair market value of the underlying Shares on the date of
grant, as determined under Section 409A of the Code.
(c) As of the date of this Agreement, except for the Company Options, Stock Units
and Notional Shares, there are no outstanding or existing (i) options, warrants, calls, subscriptions or other rights, convertible securities, agreements or commitments of any kind to which the Company or any of the Company Subsidiaries is a
party, or by which it is bound, obligating the Company or any of the Company Subsidiaries to issue, transfer or sell any shares of capital stock or other equity interest in the Company or any of the Company Subsidiaries or
A-8
securities convertible into or exchangeable for such shares or equity interests relating to or based on the value of the equity securities of the Company or any Company Subsidiary,
(ii) obligations of the Company or any of the Company Subsidiaries to repurchase, redeem or otherwise acquire any capital stock or equity securities of the Company or any of the Company Subsidiaries, or (iii) voting trusts or similar
agreements or other Contracts to which the Company or any Company Subsidiary is a party, or by which it is bound, with respect to the voting or registration of securities of the Company or any Company Subsidiary. The Shares constitute the only
outstanding class of securities of the Company or the Company Subsidiaries registered under, or required to be registered under, the Securities Act.
(d) There are no outstanding bonds, debentures, notes or other Indebtedness of the Company or any Company Subsidiary having the right to vote
(or convertible into, or exchangeable for, securities having the right to vote) on any matter on which stockholders of the Company or any Company Subsidiary may vote.
(e) The Company or another Company Subsidiary owns, directly or indirectly, all of the issued and outstanding shares of capital stock or other
equity securities of each of the Company Subsidiaries, free and clear of any Liens (other than transfer and other restrictions under applicable federal and state securities Laws or applicable foreign Laws), and all of such outstanding shares of
capital stock or other equity securities have been duly authorized and validly issued and are fully paid, nonassessable and free of preemptive rights.
Section
3.03
Authority
.
(a)
The Company has the requisite corporate power and authority to execute, deliver and perform this Agreement and consummate the
Transactions. The execution, delivery and performance of this Agreement by the Company and the consummation by the Company of the Transactions have been duly authorized by all necessary corporate action on the part of the Company Board and, other
than the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, no additional corporate proceedings on the part of the Company are necessary to authorize the execution, delivery and performance by the Company of
this Agreement or the consummation by the Company of the Transactions, subject, in the case of the Merger, to receipt of the Company Stockholder Approval. This Agreement has been duly executed and delivered by the Company and (assuming the due
authorization, execution and delivery of this Agreement by Parent and Sub and assuming the accuracy of the representations and warranties contained in
Section
4.06(b)
) constitutes the valid and binding obligation of the
Company enforceable against the Company in accordance with its terms, except as such enforceability (i) may be limited by applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar Laws of general
application, now or hereafter in effect, affecting or relating to the enforcement of creditors rights generally and (ii) is subject to general principles of equity, whether considered in a proceeding at law or in equity (the
Bankruptcy and Equity Exception
).
(b)
The Company Board, at a meeting duly called and held, has unanimously
(i) determined that the Transactions are in the best interests of the Company and its stockholders, (ii) approved and declared advisable the execution, delivery and performance of this Agreement and, subject to receiving the Company
Stockholder Approval, the consummation by the Company of the Transactions, (iii) directed that this Agreement be submitted to the stockholders of the Company for its adoption at the Company Stockholder Meeting, and (iv) resolved to
recommend adoption by the stockholders of the Company of this Agreement, in each case, by resolutions duly adopted, which resolutions, subject to
Section
5.03
, have not been subsequently rescinded, withdrawn or modified in
a manner adverse to Parent.
Section
3.04
No Conflict; Required Filings and
Consents
.
(a)
Assuming the accuracy of the representations and warranties contained in
Section
4.06(b)
, none of the execution, delivery or performance of this Agreement by the Company or the consummation by the Company of the Transactions will (with or without notice or lapse of time, or both), directly or
indirectly: (i) subject to obtaining the Company Stockholder Approval, conflict with or violate any provision of the Company Charter or
A-9
Company By-laws or any equivalent organizational or governing documents of any Company Subsidiary; (ii) assuming that all consents, approvals and authorizations described in
Section
3.04(b)
have been obtained and all filings and notifications described in
Section
3.04(b)
have been made and any waiting periods thereunder have terminated or expired, conflict with or
violate any Law applicable to the Company or any Company Subsidiary or any of their respective properties or assets; or (iii) require any consent or approval under, violate, conflict with, result in any breach of or any loss of any benefit
under, or constitute a default under, or result in termination or give to others any right of termination, vesting, amendment, acceleration or cancellation of, or result in the creation of a Lien (other than a Permitted Lien) upon any of the
respective properties or assets of the Company or any Company Subsidiary pursuant to, any Contract to which the Company or any Company Subsidiary is a party (or by which any of their respective properties or assets are bound) or any Company Permit,
except, with respect to
clauses
(ii)
and
(iii)
, as contemplated by
Section
2.03
or for (A) any such consents and approvals the failure to obtain which, individually or in the aggregate,
would not reasonably be expected to have a Company Material Adverse Effect and (B) any such conflicts, violations, breaches, losses, defaults, terminations, rights of termination, vesting, amendment, acceleration or cancellation or Liens that,
individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(b)
None of the
execution, delivery or performance of this Agreement by the Company or the consummation by the Company of the Transactions will require (with or without notice or lapse of time, or both) any consent, approval, authorization or permit of, or filing
or registration with or notification to, any Governmental Entity with respect to the Company or any Company Subsidiary or any of their respective properties or assets, other than (i) the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware, (ii) the filing of a premerger notification and report form under the HSR Act and the receipt, termination or expiration, as applicable, of waivers, consents, approvals, waiting periods or agreements required
under the HSR Act or any other applicable U.S. or foreign competition, antitrust, merger control or investment Laws (together with the HSR Act,
Antitrust Laws
), (iii) compliance with the applicable requirements of the
Securities Act or the Exchange Act, (iv) filings as may be required under the rules and regulations of the NASDAQ, (v) compliance with any applicable international, federal or state securities or blue sky Laws, (vi) such
consents, approvals, authorizations, permits, actions, waivers, no action statements, filings, and/or notifications that are required to be made with or obtained from the FCC under the Communications Act of 1934 (the
Communications
Act
) and rules, regulations and written policies of the FCC and are set forth on
Section
3.04(b)(1)
of the Company Disclosure Letter (collectively, the
FCC Approvals
); (vii) such consents,
approvals, authorizations, permits, actions, waivers, no action statements, filings, and/or notifications that are required to be made with or obtained from State PSC and are set forth on
Section
3.04(b)(2)
of the Company
Disclosure Letter (collectively, the
State PSC Approvals
); and (viii) where the failure to obtain such consents, approvals, authorizations or permits of, or to make such filings, registrations with or notifications to, any
Governmental Entity, individually or in the aggregate, would not reasonably be expected have a Company Material Adverse Effect.
Section
3.05
Permits; Compliance with Laws
.
(a)
The Company and each Company Subsidiary is in
possession of all authorizations, licenses, permits, certificates, variances, exemptions, approvals, orders, registrations and clearances of any Governmental Entity (each, a
Permit
) necessary for the Company and each Company
Subsidiary to own, lease and operate its properties and assets, and to carry on and operate its businesses as currently conducted (the
Company Permits
), and all such Company Permits are in full force and effect, and are not
subject to any conditions except for those conditions appearing on the face of the Company Permits and conditions applicable to holders of substantially similar Permits generally, except where the failure to possess, or the failure to be in full
force and effect of, or the imposition of such conditions on, any Company Permits, individually or in the aggregate, would not reasonably be expected have a Company Material Adverse Effect. To the Companys knowledge and except as would not,
individually or in the aggregate, reasonably be expected have a Company Material Adverse Effect, (i) there exist no facts or circumstances that make it likely that any Company Permit will not be renewed or extended in the ordinary course of
business consistent with past practice on commercially reasonable terms, (ii) no Governmental Entity has commenced, or given written notice to the Company or any Company Subsidiary that it intends to
A-10
commence, a proceeding to revoke, or suspend, rescind, modify or not renew, or to impose any materially adverse condition on, any Company Permit, (iii) all reports and filings required to be
filed with the relevant Governmental Entity by the Company or any Company Subsidiary with respect to any Company Permit have been timely filed and are accurate and complete, (iv) all regulatory fees, contributions or surcharges required to be
paid by the Company and the Company Subsidiaries with respect to any Company permit have been timely paid, and (v) the Company and each Company Subsidiary are, and since January 1, 2015 have been, in compliance with the terms of all
Company Permits. The Company has no applications pending before the FCC or a State PSC relating to Company Permits or seeking the issuance of additional Company Permits. The Company is qualified under Law to transfer control of the Company Permits
to Parent, and to the knowledge of Company, there is no fact or circumstance relating to the Company Permits or the Company or its Subsidiaries that would cause the FCC to deny the grant of the FCC Approvals or a State PSC to deny grant of a State
PSC Approval.
(b)
Since January 1, 2015 (and with respect to Antitrust Laws, since May 1, 2012), the Company and each of
the Company Subsidiaries have been in compliance with all Laws applicable to the Company, the Company Subsidiaries and their respective businesses and activities, except for such
non-compliance
that,
individually or in the aggregate, have not and would not reasonably be expected to have a Company Material Adverse Effect. There is no outstanding notice of material liability, material forfeiture order or any other material sanction against the
Company or any Company Subsidiary issued by the FCC or any State PSC. To the knowledge of the Company, no investigation by any Governmental Entity with respect to the Company or any Company Subsidiary is pending, nor has any Governmental Entity
indicated to the Company or any Company Subsidiary in writing an intention to conduct any such investigation, except for such investigations the outcomes of which, individually or in the aggregate, would not reasonably be expected to have a Company
Material Adverse Effect.
(c)
This
Section
3.05
does not relate to the Company SEC Documents or financial
statements, which are the subject of
Section
3.06
; employee benefit matters, which are the subject of
Section
3.12
; Tax matters, which are the subject of
Section
3.14
;
environmental matters, which are the subject of
Section
3.16
; or intellectual property matters, which are the subject of
Section
3.17
.
Section
3.06
Company SEC Documents; Financial Statements
.
(a)
Since January 1, 2015, the Company has filed with or furnished to (as applicable) the SEC on a timely basis all registration
statements, prospectuses, forms, reports, definitive proxy statements, schedules, statements and other documents required to be filed or furnished by it under the Securities Act or the Exchange Act, as the case may be, together with all
certifications required pursuant to the Sarbanes-Oxley Act of 2002, as amended (the
Sarbanes-Oxley Act
) (such documents and any other documents filed or furnished by the Company with the SEC, as have been supplemented, modified or
amended since the time of filing, collectively, the
Company SEC Documents
). As of their respective filing dates (or, if supplemented, modified or amended since the time of filing and prior to the date of this Agreement, as of the
date of the most recent supplement, modification or amendment), the Company SEC Documents (i) did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make
the statements made therein, in light of the circumstances under which they were made, not misleading and (ii) complied as to form in all material respects with all applicable requirements of the Exchange Act or the Securities Act, as the case
may be, in each case as in effect on the date each such document was filed with or furnished to the SEC. None of the Company Subsidiaries is currently required to file periodic reports with the SEC. As of the date of this Agreement, there are no
outstanding or unresolved comments received from the SEC with respect to the Company SEC Documents. Since January 1, 2015, the Company has been and 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 NASDAQ.
(b)
The audited consolidated
financial statements and unaudited consolidated interim financial statements of the Company (including, in each case, any notes thereto) and the consolidated Company Subsidiaries included in or incorporated by reference into the Company SEC
Documents (collectively, the
Company Financial
A-11
Statements
) (x) were, except as may be indicated in the notes thereto, prepared in accordance with GAAP (as in effect in the United States on the date of such Company Financial
Statement) applied on a consistent basis in all material respects during the periods involved except, in the case of unaudited statements, as permitted by SEC rules and regulations and (y) present fairly, in all material respects, the financial
position of the Company and the consolidated Company Subsidiaries and the results of their operations and their cash flows as of the dates and for the periods referred to therein (except as may be indicated in the notes thereto or, in the case of
interim financial statements, for normal
year-end
adjustments that were not or will not be material in amount or effect).
(c)
As of the date hereof, other than as set forth in the Company Financial Statements, neither the Company nor any of the Company
Subsidiaries is a party to, or has any commitment to become a party to, any off balance sheet arrangements that would be required to be disclosed under Item 303(a) of Regulation
S-K
promulgated by the SEC.
Section
3.07
Information Supplied
. The Proxy
Statement will not, at the time the Proxy Statement is filed with the SEC, at any time the Proxy Statement is amended or supplemented, at the time the Proxy Statement is first mailed to the Companys stockholders or at the time of the Company
Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not
misleading. The Proxy Statement will comply as to form in all material respects with the provisions of the Exchange Act and the rules and regulations thereunder and other applicable Law. Notwithstanding the foregoing, no representation or warranty
is made by the Company with respect to statements made or incorporated by reference in the Proxy Statement based on information supplied by Parent or Sub or any of their representatives specifically for inclusion or incorporation by reference
therein.
Section
3.08
Internal Controls and Disclosure Controls
.
(a)
The Company has designed and maintains a system of internal control over financial reporting (as defined in Rules
13a-15(f)
and
15d-15(f)
of the Exchange Act) as required by
Rule 13a-15
under the Exchange Act and sufficient to provide
reasonable assurances regarding the reliability of financial reporting for the Company and the Company Subsidiaries for external purposes in accordance with GAAP. To the Companys knowledge, since January 1, 2015 neither the Company nor
the Companys independent registered accountant has identified or been made aware of: (1) any significant deficiency or material weakness in the design or operation of internal control over financial reporting utilized by the Company which
is reasonably likely to adversely affect the Companys ability to record, process, summarize and report financial information; or (2) any fraud, whether or not material, that involves the management or other employees of the Company or any
of the Company Subsidiaries who have a significant role in the Companys internal control over financial reporting.
(b)
The
Company has designed disclosure controls and procedures (as defined in Rules
13a-15(e)
and
15d-15(e)
of the Exchange Act) to provide reasonable assurance that material
information required to be disclosed by the Company in the reports that it files or submits under the Exchange Act is recorded, processed, summarized and reported within the time periods specified in the SECs rules and forms and is accumulated
and communicated to the Companys management as appropriate to allow timely decisions regarding required disclosure and to enable each of the principal executive officer and the principal financial officer of the Company to make the
certifications required under the Exchange Act with respect to such reports.
Section
3.09
Absence of Certain Changes
.
(a)
Except as otherwise expressly contemplated by this Agreement, from December 31, 2016 through the date of this Agreement,
(i) the businesses of the Company and the Company Subsidiaries have been conducted in the ordinary course of business in all material respects and (ii) the Company and the Company Subsidiaries have not taken or failed to take any action
that, had such action been taken or failed to have been taken after the date hereof, would (without Parents consent) have constituted a breach of any of the covenants set forth in
Section
5.01(a)-(s)
, other than
Section
5.01(b)
,
(j)
,
(m)
and
(q)
.
A-12
(b)
From December 31, 2016, there have not been any changes, circumstances,
events or effects that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect.
Section
3.10
Undisclosed Liabilities
. Neither the Company nor any of the Company Subsidiaries has, or is subject to, any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise)
required by GAAP to be set forth on a consolidated balance sheet of the Company and the Company Subsidiaries or in the notes thereto, other than liabilities and obligations (a) disclosed, reserved against or provided for in the audited
consolidated balance sheet of the Company as of December 31, 2016 or in the notes thereto, (b) incurred in the ordinary course of business since December 31, 2016, (c) in respect of transaction fees and expenses incurred pursuant
to the transactions contemplated by this Agreement, (d) that have been discharged or paid in full prior to the date of this Agreement or (e) that otherwise would not, individually or in the aggregate, reasonably be expected to have a
Company Material Adverse Effect.
Section
3.11
Litigation
. There is no suit,
claim, action, demand, inquiry, audit, notice of violation, litigation, citation, summons, subpoena, investigation, proceeding or arbitration (collectively,
Proceeding
) to which the Company or any Company Subsidiary, is a party
pending or, to the knowledge of the Company, threatened in writing that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect. Neither the Company nor any Company Subsidiary is subject to any
outstanding order, writ, injunction, judgment or decree of any Governmental Entity or arbitrator unrelated to this Agreement that, individually or in the aggregate, would reasonably be expected to have a Company Material Adverse Effect.
Section
3.12
Employee Benefits
.
(a)
Section
3.12(a)
of the Company Disclosure Letter sets forth a true and complete list as of the date
hereof of each material employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (
ERISA
), each vacation, deferred compensation, incentive compensation,
retention, severance, fringe benefits, tax
gross-up
and each other material compensation or benefit plan, policy, program or arrangement, in each case, maintained, contributed to or required to be contributed
to, by the Company or any Company Subsidiary, other than any plan, policy, program or arrangement which is required to be maintained by applicable Law, or with respect to which the Company or any Company Subsidiary has any liability (each of the
foregoing, whether or not material, a
Company Benefit Plan
). Each Company Benefit Plan that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter, and, to the knowledge of
the Company, there are no circumstances that would result in the revocation of such letter. The Company has either delivered or made available to Parent prior to the execution of this Agreement, with respect to each material Company Benefit Plan,
accurate and complete copies (as applicable) of: (i) the plan document; (ii) any related trust or other funding documents; and (iii) the most recent annual actuarial valuation, if any.
(b)
Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect:
(i) each Company Benefit Plan has been administered in compliance with its terms and all applicable Laws, including ERISA and the Code and (ii) there are no Proceedings (other than for routine claims for benefits) pending or, to the
knowledge of the Company, threatened with respect to any Company Benefit Plan. Each Company Benefit Plan which is intended to qualify under Section 401(a) of the Code has either received a favorable determination letter from the Internal
Revenue Service (
IRS
) as to its qualified status or has timely filed an application for a favorable determination letter, or may rely upon an opinion letter for a prototype or volume submitter plan.
(c)
Section
3.12(c)
of the Company Disclosure Letter lists each material Company Benefit Plan that as of the
date hereof provides health benefits after retirement or other termination of employment, other than (i) as required by Law or (ii) coverage or benefits the full cost of which is borne by the employee or former employee (or any beneficiary
of the employee or former employee).
(d)
At no time during the six (6)-year period prior to the date of this Agreement has the
Company, any Company Subsidiary or any of their respective ERISA Affiliates maintained, contributed to or had any
A-13
obligations or liabilities under any employee benefit subject to Section 302 or Title IV of ERISA or Section 412 of the Code, or any multiemployer pension plan (as defined in
Section 3(37) of ERISA).
(e)
The consummation of the transactions contemplated under this Agreement (including in combination
with other events or circumstances) will not (i) entitle any current or former director, employee or independent contractor to any cash or equity payment or other benefit, or acceleration, vesting or increase in the amount of any cash or equity
payment or other benefit, or require the funding of compensation or benefits due to any such individual or (ii) result in any payment or benefit that would reasonably be expected to constitute an excess parachute payment under
Section 280G of the Code. None of the Company or any Company Subsidiary has any obligation to compensate any individual for Taxes incurred pursuant to Sections 409A or 4999 of the Code.
(f)
Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, each
Company Benefit Plan that is required to be registered under the Laws of a jurisdiction outside the United States has been registered and has been maintained in good standing with the appropriate regulatory authorities.
Section
3.13
Labor Matters
.
(a)
As of the date of this Agreement, there is no labor strike or lockout, labor dispute, union organizing activity or, to the
knowledge of the Company, threat thereof, against the Company or any Company Subsidiary.
(b)
As of the date of this Agreement,
neither the Company nor any Company Subsidiary is a party to, or bound by, any collective bargaining agreement or similar agreement or arrangement with any labor union (collectively,
Union Contracts
).
Section
3.14
Tax Matters
.
(a)
Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect,
(i) the Company and each Company Subsidiary has timely filed (taking into account any extension of time within which to file) all Tax Returns required to be filed by any of them, (ii) all such Tax Returns are true, correct and complete in
all respects, (iii) the Company and each Company Subsidiary has paid all Taxes required to be paid by any of them, whether or not shown as due on any Tax Return and (iv) all Taxes which the Company or any Company Subsidiary has been
required by Law to withhold or to collect for payment have been duly withheld and collected and have been paid to the appropriate Governmental Entity.
(b)
Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect,
(i) there is no pending (or, to the knowledge of the Company, threatened in writing) Proceeding, audit, examination or investigation with respect to Taxes for which the Company or any Company Subsidiary may be liable, (ii) no deficiency
with respect to any amount of Tax has been assessed, or, to the knowledge of the Company, proposed or asserted, in each case, in writing against the Company or any Company Subsidiary, except for deficiencies that have been fully satisfied,
finally settled or otherwise adequately reserved in the Company Financial Statements filed as of the date hereof in accordance with GAAP, (iii) neither the Company nor any Company Subsidiary has waived any statute of limitations with respect to
any amount of Tax or agreed to any extension of time with respect to any Tax assessment or deficiency and (iv) no ruling, technical advice memorandum, or agreement has been entered into or issued by any Governmental Entity to, or with respect
to, the Company or any Company Subsidiary in respect of any amount of Tax.
(c)
Neither the Company nor any Company Subsidiary has
constituted either a distributing corporation or a controlled corporation within the meaning of Section 355(a)(1)(A) of the Code, in each case in the two (2) years prior to the date of this Agreement.
(d)
Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, other than
Permitted Liens, there are no Liens or other encumbrances with respect to
A-14
any Taxes on the assets of the Company or any Company Subsidiary. Neither the Company nor any Company Subsidiary (i) has 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 foreign Law), (ii) will be required to include any material item of income in, or to exclude any material 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 or (B) prepaid amount received on or prior
to the Closing Date outside of the ordinary course of business or (iii) has any material liability for the Taxes of another person (other than the Company or any Company Subsidiary) (A) under Treasury Regulations
Section 1.1502-6
(or any similar provision of state, local or foreign Law), (B) by reason of being or having been a member of an affiliated, consolidated, combined, unitary or similar group or (C) as a
transferee or successor. There are no Tax sharing, allocation or indemnification agreements with respect to or involving the Company or any Company Subsidiary (other than (x) any such agreements solely between the Company and any Company
Subsidiaries, (y) customary Tax indemnification provisions in commercial contracts entered into in the ordinary course of business and not primarily related to Taxes or (z) any such agreements or arrangements that are not material).
Notwithstanding any other provisions of this Agreement to the contrary, the representations and warranties made in
Section
3.02(b)
,
Section
3.06
,
Section
3.12
and in this
Section
3.14
are the sole and exclusive representations and warranties made by the Company in this Agreement with respect to Taxes.
Section
3.15
Properties
. Except as, individually or in the aggregate, would
not reasonably be expected to have a Company Material Adverse Effect, the Company or a Company Subsidiary has (a) good fee simple title to all real property owned by the Company or any of the Company Subsidiaries (the
Owned Real
Property
) and (b) a valid leasehold estate in all real property leased, subleased, licensed or otherwise occupied by the Company or any Company Subsidiary (the
Leased Real Property
), in each case free and clear of
all Liens except for Permitted Liens.
Section
3.15(a)
of the Company Disclosure Letter contains a complete and accurate list of the street address of each parcel of Owned Real Property.
Section
3.15(b)
of the Company Disclosure Letter contains a complete and accurate list of each Company Lease which requires annual rental payments in an amount in excess of $500,000. As of the date hereof, the Company has
delivered to or made available to Parent a true and complete copy of each material Company Lease. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) each Company Lease is
in full force and effect and is a valid and binding obligation of the Company or the Company Subsidiaries, as the case may be, except as enforcement may be limited by the Bankruptcy and Equity Exception, (ii) neither the Company nor any of the
Company Subsidiaries is, nor, to the Companys knowledge, is any other party (in each case, with or without notice or lapse of time, or both) in breach or default under any Company Lease and (iii) there is no pending or, to the
Companys knowledge, threatened appropriation, condemnation, eminent domain or similar Proceeding, or sale or other disposition in lieu of condemnation, affecting the Owned Real Property or, to the Companys knowledge, the Leased Real
Property.
Section
3.16
Environmental Matters
. Except as, individually or in
the aggregate, would not reasonably be expected to have a Company Material Adverse Effect:
(a)
The Company and each Company
Subsidiary is, and has been since January 1, 2015, in compliance with those Environmental Laws applicable to their respective operations (including possessing and complying with any required Environmental Permits), and there are no
administrative or judicial Proceedings pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary and since January 1, 2015, none of the Company or any Company Subsidiary has received any written
notice, demand, letter or claim, in each case, alleging that the Company or such Company Subsidiary is in violation of, or liable under, any Environmental Law;
(b)
Since January 1, 2015, neither the Company nor any Company Subsidiary has received any written notice of, and to the knowledge
of the Company, there has been no spill or other release of any Hazardous Substances at, on or under any of the Owned Real Property or Leased Real Property that would reasonably be
A-15
expected to result in liability under Environmental Laws on the part of the Company or any Company Subsidiary; and
(c)
Neither the Company nor any Company Subsidiary has entered into or agreed to any consent decree or order or is subject to any
judgment, decree or judicial order relating to compliance with Environmental Laws, Environmental Permits or the investigation, sampling, monitoring, treatment, remediation, removal or cleanup of Hazardous Substances.
Notwithstanding any other provisions of this Agreement to the contrary, the representations and warranties made in this
Section
3.16
are the sole and exclusive representations and warranties made by the Company in this Agreement with respect to Hazardous Substances, Environmental Laws, Environmental Permits and any other matter related to the environment or the protection of
occupational safety and health in respect of exposure to Hazardous Substances.
Section
3.17
Intellectual Property
.
(a)
Section
3.17(a)
of the Company Disclosure Letter lists all Patents, Trademarks, registered Copyrights,
and Internet domain name registrations owned by the Company or the Company Subsidiaries (the
Company Registered Intellectual Property
).
(b)
Material Company IP Agreements
means Company IP Agreements, other than
non-disclosure
agreements, employee and independent contractor agreements and nonexclusive license agreements for
off-the-shelf
software, or software licensed pursuant to click through or similar stock agreements, in each case that is generally commercially
available for a license fee of less than $500,000 per year, pursuant to which: (i) the Company or a Company Subsidiary is granted any license to any Intellectual Property of any third person that is material to the conduct of the business of
the Company or such Company Subsidiary, as currently conducted and which involved payments by the Company or a Company Subsidiary in excess of $1,500,000 for the twelve months ended December 31, 2016, or (ii) the Company or a Company
Subsidiary grants any third person any license in or to any Company Intellectual Property owned or exclusively licensed by the Company or a Company Subsidiary, other than
non-exclusive
licenses granted in the
ordinary course of business which do not impair the conduct of the business of the Company or such Company Subsidiary, as currently conducted. To the Companys knowledge, neither the Company nor any Company Subsidiary is in material breach of
or has provided or received any notice of material breach of any Material Company IP Agreement. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (i) to the Companys
knowledge, the Company and the Company Subsidiaries own or have the right to use in the manner currently used all of the Company Intellectual Property, and (ii) neither the Company nor any of the Company Subsidiaries has received, since
January 1, 2016, any written charge, complaint, claim, demand or notice challenging the validity or enforceability of any of the Company Registered Intellectual Property that has not been settled or otherwise fully resolved.
Section
3.17(b)
of the Company Disclosure Letter lists all Material Company IP Agreements involving payments by the Company or a Company Subsidiary in excess of $3,000,000 for the twelve months ended December 31, 2016
or that are otherwise material to the Company and its Subsidiaries, taken as a whole, and the Company has provided Parent true and complete copies of all such Material Company IP Agreements, including all material modifications, amendments and
supplements thereto and waivers thereunder. Each Material Company IP Agreement is valid and binding on the Company in accordance with its terms and is in full force and effect.
(c)
All Company Intellectual Property material to the Company and the Company Subsidiaries, taken as a whole, has been duly maintained
by the Company and the Company Subsidiaries, except for any such failure that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(d)
The Company and the Company Subsidiaries have taken commercially reasonable steps to protect and preserve all material Trade
Secrets included in the Company Intellectual Property owned by or exclusively licensed to the Company.
A-16
(e)
To the Companys knowledge, the conduct of the business of the Company and
the Company Subsidiaries as currently conducted does not infringe upon or misappropriate any Intellectual Property rights of any other person, except for any such infringement that, individually or in the aggregate, would not reasonably be expected
to have a Company Material Adverse Effect. None of the Company or any of the Company Subsidiaries has received, since January 1, 2015, any written charge, complaint, claim, demand or notice alleging any such infringement or misappropriation by
the Company or any of the Company Subsidiaries that has not been settled or otherwise fully resolved, except for any such infringement that, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse
Effect. To the Companys knowledge, since January 1, 2015, no person is infringing or misappropriating the Company Intellectual Property that is owned by the Company, except for any such infringement or misappropriation that, individually
or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect.
(f)
To the knowledge of the
Company, each Company or Company Subsidiary employee or consultant involved in the creation or development of any material Company Intellectual Property (owned by the Company or any Company Subsidiary) on behalf of the Company or any Company
Subsidiary has executed a written agreement to assign all such Intellectual Property resulting therefrom, to the Company or a Company Subsidiary, except for any failures to execute such a written agreement that, individually or in the aggregate,
would not reasonably be expected to have a Company Material Adverse Effect.
(g)
Notwithstanding any other provisions of this
Agreement to the contrary, the representations and warranties made in this
Section
3.17
are the sole and exclusive representations and warranties made by the Company in this Agreement with respect to Intellectual Property
matters.
Section
3.18
Material Contracts
.
(a)
All Contracts, including amendments thereto, required to be filed as an exhibit to any report of the Company filed pursuant to the
Exchange Act of the type described in Item 601(b)(10) of Regulation
S-K
promulgated by the SEC have been filed. True and complete copies of all such Contracts have been filed or made available to Parent.
(b)
Other than the Contracts described in
Section
3.18(a)
,
Section
3.18(b)
of
the Company Disclosure Letter sets forth a complete list, and the Company has made available to Parent true and complete copies, of each Contract to which the Company or any of the Company Subsidiaries is a party or by which it is bound or to which
any of their respective assets are subject (other than any of the foregoing solely between the Company and any of the wholly-owned Company Subsidiaries or solely between any wholly-owned Company Subsidiaries), as of the date of this Agreement, that:
(i)
relates to (x) the formation, creation, operation, management or control of a partnership, joint venture or similar
arrangement (where such partnership, joint venture or similar arrangement involves the formation of, or operation through, a legal entity that is not a wholly-owned Company Subsidiary) or (y) the ownership of any equity interest in any entity
or business other than the Company Subsidiaries, in each case that is material to the Company and the Company Subsidiaries, taken as a whole;
(ii)
contains any provision that limits or restricts (or purports to limit or restrict) the ability of the Company or any of the
Company Subsidiaries to make distributions or declare or pay dividends in respect of their capital stock, partnership interests, membership interests or other equity interests, as the case may be, in each case other than the certificate of
incorporation, bylaws or other charter or organizational or governing documents of the Company or any Company Subsidiary;
(iii)
relates to the creation, incurrence, assumption or guarantee of Indebtedness of the Company or any Company Subsidiary in an amount in excess of $25,000,000 (except for such Indebtedness between the Company and any of the wholly-owned Company
Subsidiaries or between the wholly-owned Company Subsidiaries,
A-17
guarantees by the Company of Indebtedness of any of the wholly-owned Company Subsidiaries and guarantees by any of the Company Subsidiaries of Indebtedness of the Company or any other
wholly-owned Company Subsidiary);
(iv)
relates to derivative instruments, including swaps, caps, floors and option agreements,
whether or not such obligations constitute Indebtedness, with a net present value as of March 31, 2017 greater than $2,000,000;
(v)
grants any rights of first refusal, rights of first negotiation or other similar rights to any person with respect to the sale of
any ownership interest of the Company or the Company Subsidiaries or any material business or assets of the Company and the Company Subsidiaries, taken as a whole;
(vi)
(A) would materially restrict or affect the ability of Parent or its Subsidiaries (including the Surviving Corporation and
its Subsidiaries) following the Effective Time to compete in any line of business or (B) contains most favored nation, exclusivity or similar covenants that, in each case, are material to or would materially restrict or affect the
future business activity of Parent or its Subsidiaries (including the Surviving Corporation and its Subsidiaries) following the Effective Time;
(vii)
obligates the Company or any Company Subsidiary to make any (or any series of related) capital commitment or capital expenditure
in excess of $5,000,000 individually after the date hereof through December 31, 2017 or $5,000,000 individually thereafter;
(viii)
(A) relates to any completed acquisition, divestiture, merger or similar business combination transaction (in each case
involving the acquisition, sale or disposition of any person, division, a substantial portion of the assets of any person, business or equity securities) and contains representations, covenants,
earn-out
obligations, indemnities or other obligations that remain in effect and that are material to the business of the Company and the Company Subsidiaries, taken as a whole, (B) relates to
any pending acquisition, divestiture, merger or similar business combination transaction (in each case involving the acquisition, sale or disposition of any person, division, a substantial portion of the assets of any person, business or equity
securities), in each case where the consideration is in excess of $1,000,000, or (C) gives any person the right to acquire any material equity interests, stock, assets or businesses of the Company or the Company Subsidiaries after the date
hereof;
(ix) is a Contract that is between the Company or any of the Company Subsidiaries, on the one hand, and any director or officer
of the Company or the Company Subsidiaries or any person beneficially owning 5% or more of the outstanding Shares, on the other hand (except for any Company Benefit Plan);
(x) is a Union Contract;
(xi)
is a Contract with any Significant Customer for the sale of goods or services by the Company or any Company Subsidiary or is a Contract with any Significant Supplier for the purchase of services, materials, supplies or equipment by the Company or
any Company Subsidiary (other than any
non-material
purchase or sale order, including any such purchase or sale order based on quoted or
pre-established
pricing or that
is processed in the ordinary course of business through an electronic transaction, or other immaterial Contract);
(xii) is a settlement
or similar agreement with any Governmental Entity or order or consent of a Governmental Entity to which the Company or any of the Company Subsidiaries is subject involving future performance by the Company or any of the Company Subsidiaries which is
material to the Company and the Company Subsidiaries, taken as a whole; or
(xiii) is a mortgage, pledge, security agreement, deed of
trust or other Contract in respect of any indebtedness for borrowed money granting a Lien, other than a Permitted Lien, on any material property or asset of the Company or any Company Subsidiary.
A-18
Each Contract described in
Section
3.18(a)
or
Section
3.18(b)
(whether or not listed on
Section 3.18(a)
or
Section 3.18(b)
of the Company Disclosure Letter) is referred to in this Agreement as a
Company Material Contract
.
(c) Neither the Company nor any Company Subsidiary is in breach of or default under the terms of any Company Material Contract, 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 the Company or any Company Subsidiary, where such breach or default, individually or together with other
such breaches or defaults, would reasonably be expected to have a Company Material Adverse Effect. To the knowledge of the Company, as of the date hereof, 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, individually or together with other such breaches or defaults, would reasonably be expected to have a Company Material Adverse Effect. As of the date of this Agreement, each Company
Material Contract is a valid and binding obligation of the Company or a Company Subsidiary that is a party thereto and, to the knowledge of the Company, is in full force and effect, except for such failures as, individually or in the aggregate,
would not reasonably be expected to have a Company Material Adverse Effect, subject to the Bankruptcy and Equity Exception.
Section
3.19
Insurance
.
Section
3.19
of the Company Disclosure Letter sets forth a correct and complete list of the Insurance Policies as of the date hereof. The Company has made available
to Parent true and correct copies of such Insurance Policies prior to the date hereof. Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, (a) all Insurance Policies
maintained by the Company and the Company Subsidiaries are in full force and effect and provide insurance in such amounts and against such risks as the management of the Company reasonably has determined to be prudent or as is required by Law or
regulation, and all premiums due and payable thereon have been paid; (b) neither the Company nor any Company Subsidiary is in breach of or default under any of the Insurance Policies; and (c) neither the Company nor any Company Subsidiary
has taken any action or failed to take any action which, with notice or the lapse of time or both, would constitute such a breach or default or permit termination or modification of any of the Insurance Policies. There are no material claims under
any of the Insurance Policies for which coverage has been denied or disputed by the applicable insurance carrier (other than a customary reservation of rights notice).
Section
3.20
Opinion of Financial Advisor
. The Company Board has received the
written opinion of Centerview Partners LLC, dated May 9, 2017, that as of the date of such opinion and based on and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the
review undertaken in preparing such opinion as set forth therein, $23.50 per share of Company Common Stock in cash to be paid to the holders of Shares (other than Excluded Shares and any Shares held by any affiliate of Parent prior to the Effective
Time) pursuant to this Agreement is fair, from a financial point of view, to such holders. An executed copy of such opinion will be delivered to Parent solely for informational purposes promptly after the execution of this Agreement, and it is
agreed and understood that such opinion may not be relied on by Parent or Sub.
Section
3.21
Takeover Statutes
. Assuming the accuracy of the representation
contained in
Section
4.06(b)
, no control share acquisition, fair price, moratorium, business combination or other state anti-takeover Law (including Section 203 of the
DGCL) or similar anti-takeover provision in the Company Charter or Company
By-laws
(a
Takeover Statute
) is, or as of the Effective Time will be, applicable to this Agreement or any of the
Transactions.
Section
3.22
Vote Required
. Assuming the accuracy of the
representations and warranties contained in
Section
4.06(b)
, the only vote of the holders of Shares required to adopt this Agreement or approve the Transactions is the adoption of this Agreement by the holders of a majority
of the outstanding shares of Company Common Stock (the
Company Stockholder Approval
).
Section
3.23
Brokers
. No broker, finder or investment banker other than
Centerview Partners LLC is entitled to any brokerage, finders or other fee or commission in connection with the Transactions based on
A-19
arrangements made by or on behalf of the Company or any of the Company Subsidiaries. Prior to the date hereof, the Company has provided a complete copy of Centerview Partners LLCs
engagement letter (and any amendments thereto) to Parent.
Section
3.24
Existing
Indentures
.
Section
3.24
of the Company Disclosure Letter sets forth, for each item included thereon, as of the date of this Agreement, the available amount or basket usage, as applicable, under each of the Indentures,
in the manner and to the extent set forth in the Disclosure Letter. There is no Default or Event of Default under either of the Indentures (as such terms are defined in the respective Indentures).
Section
3.25
Certain Payments
.
(a)
Except as, individually or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect, neither
the Company nor any of the Company Subsidiaries (nor, to the Companys knowledge, any of their respective directors, executives, representatives, agents or employees) has, directly or indirectly, (i) offered, authorized, provided or given
any payment or thing of value to any person for the purpose of influencing any act or decision of such person to unlawfully obtain or retain business or other advantage, (ii) has violated since January 1, 2012 or is violating any
applicable Anti-Corruption Laws, (iii) has established or maintained, or is maintaining, any unlawful fund of corporate monies or other properties or (iv) has taken any other action that would constitute an offer to pay, a promise to pay
or a payment of money or anything else of value, or an authorization of such offer, promise or payment, directly or indirectly, to any employee, agent or representative of another company or entity in the course of their business dealings with the
Company or any of the Company Subsidiaries, in order to unlawfully induce such person to act against the interest of his or her employer or principal. Except as, individually or in the aggregate, has not and would not reasonably be expected to have
a Company Material Adverse Effect, neither the Company nor any of the Company Subsidiaries, nor, to the Companys knowledge, any director, officer, agent, employee or affiliate of the Company or any of the Company Subsidiaries: (x) is, or
is owned or controlled by, a person or entity subject to the sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (
OFAC
) or included on the List of Specially Designated Nationals
and Blocked Persons or Foreign Sanctions Evaders, Denied Persons List, Entities List, Debarred Parties List, Excluded Parties List and Terrorism Exclusion List, or any other lists of known or suspected terrorists, terrorist organizations or other
prohibited persons made publicly available or provided to the Company or any of its Subsidiaries by any Governmental Entity (such entities, persons or organizations collectively, the
Restricted Parties
); or (y) has conducted
any business with or engaged in any transaction or arrangement with or involving, directly or indirectly, any Restricted Parties or countries subject to economic or trade sanctions imposed by the U.S. Governmental Entity, including Cuba, Iran, Iraq,
Libya, North Korea, Sudan and Syria, in violation of applicable Law, or has otherwise been in violation of any such sanctions, restrictions or any similar Law.
(b)
Except as, individually or in the aggregate, would not reasonably be expected to be material to the Company and the Company
Subsidiaries, taken as a whole, the Company and the Company Subsidiaries are currently, and have at all times since January 1, 2012 been, in compliance in all respects with all applicable Laws relating to export controls, trade embargoes, and
economic sanctions. To the Companys knowledge, the Company nor any of the Company Subsidiaries is subject to any pending or threatened action of any Governmental Entity that would restrict its ability to engage in export transactions, bar it
from exporting or otherwise limit in any material respect its exporting activities or sales to any Governmental Entity. Neither the Company nor any of the Company Subsidiaries has received any written notice of material deficiencies in connection
with any export controls, trade embargoes or economic sanctions matter from OFAC or any other Governmental Entity in its compliance efforts nor made any voluntary disclosures to OFAC or any other Governmental Entity of facts that could result in any
material action being taken or any material penalty being imposed by a Governmental Entity against the Company or any of the Company Subsidiaries.
A-20
Section
3.26
Data Privacy and
Security Matters
. Except as, individually or in the aggregate, would not reasonably be expected to be material to the Company and the Company Subsidiaries, taken as a whole:
(a)
Since January 1, 2015, the Company and each of the Company Subsidiaries have been in compliance with all Privacy and Security
Requirements applicable to the Company, the Company Subsidiaries and their respective businesses and activities. To the Companys knowledge, there are no current, pending, or threatened investigations or audits by any Governmental Entity
related to the Privacy and Security Requirements. As of the date of this Agreement, and to the Companys knowledge, none of the Company vendors, suppliers, and subcontractors, nor the Company or the Company Subsidiaries, have suffered any
breach that has resulted in any unauthorized access to, use of, disclosure of, or other loss of, any Personal Data or information relating to the Company or any Company Subsidiary or their respective customers (
Customer Data
).
(b)
The Company and the Company Subsidiaries have implemented and maintain reasonable and appropriate physical, technical,
organizational and administrative security measures and have in place hardware, software, systems, policies and procedures that, in each case, are reasonably calculated and consistent with customary industry standards to protect all Personal Data
and Customer Data under their control and/or in their possession from unauthorized access, use, disclosure, modification, deletion or other processing in accordance with the Privacy and Security Requirements.
(c)
The Company and the Company Subsidiaries have in place disaster recovery plans, procedures and facilities that satisfy applicable
Laws. The disaster recovery and security plans, procedures and facilities meet all representations made to, and obligations with, all customers, vendors, suppliers and subcontracts or the Company and the Company Subsidiaries, and the Company and the
Company Subsidiaries are in compliance therewith.
(d)
The Company and the Company Subsidiaries have in place (i) Business
Associate Agreements (as defined by HIPAA) with their customers and
(ii) so-called
downstream Business Associate Agreements with their vendors, suppliers and subcontractors, in each case to the extent
required by Law.
Section
3.27
Customers and Suppliers
.
Section
3.27
of the Company Disclosure Letter sets forth the ten (10) largest customers (by total aggregate annual revenue received by the Company and the Company Subsidiaries) (the
Significant
Customers
) and the ten (10) largest suppliers (by total aggregate annual spend amounts paid to such suppliers by, or on behalf of, the Company and the Company Subsidiaries) (the
Significant Suppliers
) of the Company
and the Company Subsidiaries for the twelve (12)-month period ending on December 31, 2016. As of the date hereof, to the Companys knowledge, no Significant Customer or Significant Supplier has cancelled or otherwise terminated, or, to the
Companys knowledge, threatened, in writing to cancel or otherwise to terminate, its relationship with the Company or the Company Subsidiaries.
Section
3.28
Affiliate Transactions
. Except for Company Benefit Plans,
Section
3.28
of the Company Disclosure Letter sets forth a true, correct and complete list of the Contracts (each, a
Company Affiliate Contract
) that are in existence as of the date of this Agreement
between the Company or any of the Company Subsidiaries and any (i) present executive officer or director of either the Company or any of the Company Subsidiaries or any person that has served as such an executive officer or director within the
last five years or, to the Companys knowledge, any of such officers or directors immediate family members; (ii) record or beneficial owner of more than 5% of the shares of Shares as of the date of this Agreement; or
(iii) to the Companys knowledge, any affiliate of any such officer, director or owner (other than the Company or any of the Company Subsidiaries), in each case that would be required to be disclosed under Item 404 of Regulation
S-K
under the Securities Act. Any Company Affiliate Contract as of the time it was entered into and as of the time of any amendment or renewal thereof contained such terms, provisions and conditions as were at least
as favorable to the Company or any of its Subsidiaries as would have been obtainable by the Company or the Company Subsidiaries in a similar transaction with an unaffiliated third party.
Section
3.29
Acknowledgment of No Other Representations or Warranties
. The
Company acknowledges and agrees that, except for the representations and warranties contained in
Article
IV
and in the Equity
A-21
Commitment Letter and the Guarantee, none of the Parent Related Parties or any of their respective affiliates or representatives makes or has made any representation or warranty, either express
or implied, concerning the Parent Related Parties or the Transactions. To the fullest extent permitted by applicable Law, except with respect to the representations and warranties contained in
Article IV
, the Equity Commitment Letter and the
Guarantee and in any certificate or other agreement provided pursuant to this Agreement or in any of the Transaction Documents or any breach of any covenant or other agreement of the Parent or Sub contained in this Agreement, the Equity Commitment
Letter, the Guarantee or in any of the Transaction Documents and except in the case of fraud (in each case, notwithstanding anything herein to the contrary, pursuant to the terms and conditions hereof and thereof, including
Section
7.02
,
Section
8.10
and
Section
8.11 of this Agreement
), none of the Parent Related Parties or any of their respective affiliates or representatives shall have any
liability to the Company, the Company Subsidiaries, the Company Related Parties, the Company Representatives or their respective affiliates or representatives on any basis (including in contract or tort, under federal or state securities Laws or
otherwise) based upon any other representation or warranty, either express or implied, included in any information or statements (or any omissions therefrom) provided or made available by the Parent Related Parties or any of their respective
affiliates or representatives in connection with the Transactions.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND SUB
Except as disclosed in the corresponding section of the separate disclosure letter that has been delivered by Parent and Sub to the Company
prior to the execution of this Agreement, including the documents attached to or incorporated by reference in such disclosure letter (the
Parent Disclosure Letter
) (it being agreed that disclosure of any item in any section or
subsection of the Parent Disclosure Letter shall also be deemed to be disclosed with respect to any other section or subsection in this Agreement to which the relevance of such item is reasonably apparent), Parent and Sub hereby jointly and
severally represent and warrant to the Company:
Section
4.01
Organization
.
Each of Parent and Sub is a corporation or other legal entity duly incorporated or organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation or organization. Each of Parent and Sub has requisite
corporate or other legal entity, as the case may be, power and authority to own, lease and operate its properties and assets and to carry on its business as it is now being conducted, except where any such failure to be so organized, existing, in
good standing or to have such power or authority, individually or in the aggregate, would not reasonably be expected to prevent or materially delay the consummation of the Transactions.
Section
4.02
Authority
. Each of Parent and Sub has the requisite corporate or
other legal entity power and authority to execute and deliver this Agreement and to consummate the Transactions. The execution, delivery and performance of this Agreement by Parent and Sub and the consummation by them of the Transactions have been
duly authorized by all necessary corporate or other legal entity action on the part of Parent and Sub, and no other corporate or other legal entity proceedings on the part of Parent or Sub are necessary to authorize the execution, delivery and
performance by Parent and Sub of this Agreement or the consummation by Parent or Sub of the Transactions other than the adoption of this Agreement by the sole stockholder of Sub (which adoption shall occur promptly following the execution of this
Agreement). This Agreement has been, and any other agreements or instruments to be delivered pursuant hereto by Parent or Sub will be, duly executed and delivered by Parent and Sub and (assuming the due authorization, execution and delivery of this
Agreement by the other parties thereto) this Agreement constitutes, and when executed and delivered such other agreements and instruments will constitute, the valid and binding obligation of Parent and Sub enforceable against each of them in
accordance with its terms, subject to the Bankruptcy and Equity Exception.
Section
4.03
No Conflict; Required Filings and Consents
.
(a)
None of the execution, delivery or performance of this Agreement by
Parent and Sub or the consummation by Parent and Sub of the Transactions will (with or without notice or lapse of time, or both),
A-22
directly or indirectly: (i) conflict with or violate any provision of the certificate of incorporation,
by-laws
or any equivalent organizational or
governing documents of Parent or Sub; (ii) assuming that all consents, approvals and authorizations described in
Section
4.03(b)
have been obtained and all filings and notifications described in
Section
4.03(b)
have been made and any waiting periods thereunder have terminated or expired, conflict with or violate any Law applicable to Parent or Sub or any of their respective properties or assets; or
(iii) require any consent or approval under, violate, conflict with, result in any breach of or any loss of any benefit under, or constitute a default under, or result in termination or give to others any right of termination, vesting,
amendment, acceleration or cancellation of, or result in the creation of a Lien (other than a Permitted Lien) upon any of the respective properties or assets of Parent or Sub pursuant to, any Contract to which Parent or Sub is a party (or by which
any of their respective properties or assets are bound) or any Permit held by it or them, except, with respect to
clauses
(ii)
and
(iii)
, for (A) any such consents and approvals, the failure to obtain which
would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Transactions and (B) any such conflicts, violations, breaches, losses, defaults, terminations, rights of termination,
vesting, amendment, acceleration or cancellation or Liens that would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Transactions.
(b)
None of the execution, delivery or performance of this Agreement by or on behalf of Parent or Sub or the consummation by Parent or
Sub or any of their respective affiliates of the Transactions will require (with or without notice or lapse of time, or both) any consent, approval, authorization or permit of, or filing or registration with or notification to, any Governmental
Entity, other than (i) the filing of the Certificate of Merger with the Secretary of State of the State of Delaware, (ii) the filing of a premerger notification and report form under the HSR Act and the receipt, termination or expiration,
as applicable, of waivers, consents, approvals, waiting periods or agreements required under any Antitrust Laws, (iii) compliance with the applicable requirements of the Securities Act or the Exchange Act; (iv) compliance with any
applicable international, federal or state securities blue sky Laws; (v) the FCC Approvals; (vi) the State PSC Approvals; and (vii) where the failure to obtain such consents, approvals, authorizations or permits of, or to
make such filings, registrations with or notifications to, any Governmental Entity would not, individually or in the aggregate, reasonably be expected to prevent or materially delay the consummation of the Transactions.
Section
4.04
Information Supplied
. None of the information supplied or to be
supplied by or on behalf of Parent or Sub or any of their respective affiliates expressly for inclusion or incorporation by reference in the Proxy Statement will, at the time the Proxy Statement is filed with the SEC, at any time the Proxy Statement
is amended or supplemented, at the time the Proxy Statement is first mailed to the Companys stockholders or at the time of the Company Stockholder Meeting, contain any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.
Section
4.05
Litigation
. As of the date of this Agreement, there is no Proceeding
to which Parent or any of its Subsidiaries is a party pending or, to the knowledge of Parent, threatened against Parent or any of its Subsidiaries that would reasonably be expected to prevent or materially delay the consummation of the Transactions.
As of the date of this Agreement, none of Parent or any of its Subsidiaries is subject to any outstanding order, writ, injunction, judgment or decree that, individually or in the aggregate, would reasonably be expected to prevent or materially delay
the consummation of the Transactions.
Section
4.06
Capitalization and Operations
of Sub; No Ownership of Company Common Stock
.
(a)
As of the date of this Agreement, the authorized equity capital of Sub
consists of 1,000 shares of common stock, par value $0.001 per share, 100 of which shares are validly issued and outstanding, and 100 shares of preferred stock, par value $0.001 per share, none of which are outstanding. All of the issued and
outstanding equity capital of Sub is, and at the Effective Time will be, owned directly or indirectly by Parent. Sub was formed solely for the purpose of engaging in the Transactions, and it has not conducted any business prior to the date of this
Agreement and has no, and prior to the Effective Time will have no, assets, liabilities or
A-23
obligations of any nature other than those incidental to its formation and pursuant to this Agreement or the Financing.
(b)
None of Parent, Sub or any of their respective Subsidiaries beneficially owns (as defined in
Rule 13d-3
under the Exchange Act) any Shares or any securities that are convertible into or exchangeable or exercisable for Shares, or holds any rights to acquire or vote any Shares, other than pursuant
to this Agreement. None of Parent, Sub, any of their respective Subsidiaries or the affiliates or Associates of any such entity is, and at no time during the last three (3) years has been, an Interested
Stockholder of the Company, in each case as defined in Section 203 of the DGCL.
Section
4.07
Financing
.
(a)
As of the date of this Agreement, Parent has delivered to the Company true and complete copies of (i) the executed commitment
letter, dated as of the date hereof (the
Equity Commitment Letter
), among Parent, Sub and the other parties thereto (the
Equity Financing Sources
), pursuant to which the Equity Financing Sources have committed,
subject to the terms and conditions thereof, to invest in Parent, directly or indirectly, the amounts set forth therein on the date on which the Closing should occur pursuant to
Section
1.02
and to which the Company is an
express third party beneficiary (the
Equity Financing
), and (ii) the executed commitment letter (together with the term sheet and any other annexes, exhibits, schedules and other attachments thereto), dated as of the date
hereof (the
Debt Commitment Letter
and, together with the Equity Commitment Letter, the
Financing Commitments
) among Parent, Sub and the financial institutions party thereto (the
Lenders
and,
together with the Equity Financing Sources, the
Financing Sources
), pursuant to which the Lenders have committed, subject to the terms and conditions thereof, to lend the amounts set forth therein for purposes of funding a portion
of the Transactions on the date on which the Closing should occur pursuant to
Section
1.02
(the
Debt Financing
and, together with the Equity Financing, the
Financing
). As of the date of
this Agreement, Parent has also delivered to the Company true and complete copies of any and all fee letter(s) (with only the fee amounts, flex terms and other economic terms redacted, none of which redacted terms, individually or in the
aggregate, would reduce the amount of the Debt Financing below the amount required to satisfy the Financing Uses on the Closing Date (after taking into account the amount of the Equity Financing and available cash of the Company and the Company
Subsidiaries) or adversely affect the conditionality, availability or termination of the Debt Financing or materially delay or prevent the Closing or make the funding of the Debt Financing less likely to occur) relating to the Debt Commitment Letter
(any such fee letter, a
Fee Letter
).
(b)
Assuming the Financing is funded in accordance with the Financing
Commitments, the aggregate net proceeds from the Financing when funded in accordance with the Financing Commitments, together with available cash of the Company and the Company Subsidiaries, are sufficient to fund all of the amounts required to be
provided by Parent or Sub under this Agreement for the consummation of the Transactions and are sufficient for the satisfaction when due of all of the obligations of Parent and Sub under this Agreement, including the payment of the Aggregate Merger
Consideration, the amounts payable by Parent or Sub pursuant to
Section
2.03
and the payment of all costs and expenses required to be paid at the Closing by Parent or Sub in connection with the Transactions and any
repayment or refinancing of Indebtedness required in connection therewith or contemplated by this Agreement (collectively, the
Financing Uses
).
(c)
As of the date hereof, all of the Financing Commitments are in full force and effect and have not been withdrawn, terminated or
rescinded or otherwise amended, supplemented or modified in any respect and, except as permitted by
Section
5.07
, no such amendment, supplement or modification is contemplated by Parent or Sub or, to the knowledge of
Parent, by the other parties thereto. As of the date hereof, each of the Financing Commitments, in the form delivered to the Company, is a legal, valid and binding obligation of Parent, Sub and, to the knowledge of Parent, the other parties thereto,
enforceable against Parent, Sub and, to the knowledge of Parent, such other parties thereto in accordance with its terms and conditions, subject to the Bankruptcy and Equity Exception. There are no side letters or other Contracts or arrangements to
which Parent, Sub, the Guarantors or their affiliates is a party relating to the funding or investing, as applicable, of the full amount of the
A-24
Financing, other than as expressly set forth in the Financing Commitments and other than the Fee Letters and customary engagement letters and customary fee credit letters, none of which Fee
Letters or engagement letters (i) reduce the amount of the Financing contemplated by the Financing Commitments below the amount required to satisfy the Financing Uses on the Closing Date (after taking into account the amount of the available
cash of the Company and the Company Subsidiaries), (ii) impose any new or additional conditions precedent or otherwise adversely amend, modify or expand any conditions precedent to the Financing Commitments, (iii) would materially delay or
prevent the Closing, (iv) make the funding of the Debt Financing or the Equity Financing less likely to occur or (v) adversely impact the ability of Parent or Sub to enforce its rights against the other parties to the Debt Commitment
Letter or the Equity Commitment Letter or the Definitive Debt Financing Agreements. As of the date hereof, to the knowledge of Parent, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach
on the part of Parent or Sub under any term, or a failure of any condition, of the Financing Commitments or otherwise result in any portion of the Financing necessary to satisfy the Financing Uses contemplated thereby being unavailable on the date
on which the Closing should occur pursuant to
Section
1.02
. As of the date hereof, assuming the satisfaction of the conditions set forth in
Section
6.01
and
Section
6.02
,
neither Parent nor Sub has reason to believe that it or any Equity Financing Source would be unable to satisfy on a timely basis any term or condition of the Financing Commitments required to be satisfied by it. As of the date hereof, Parent and Sub
have fully paid any and all commitment fees or other fees required by the Financing Commitments to be paid on or before the date of this Agreement. There are no conditions precedent or other contingencies related to the funding or investing, as
applicable, of the full amount of the Financing, other than as expressly set forth in the Financing Commitments.
(d)
None of
Parent, Sub, the Guarantors or any of their respective affiliates (which for purposes of this Section 4.07(d) shall be deemed to include each direct investor in Parent) has entered into any Contract prohibiting or seeking to prohibit any bank or
other potential provider of debt financing from providing or seeking to provide debt financing to any person other than Parent or Sub in connection with a transaction relating to the Company or the Company Subsidiaries (including in connection with
the making of any Competing Proposal) in connection with the Transactions.
Section
4.08
Guarantee
. Concurrently with the execution of this Agreement, Parent and Sub have caused the Guarantors to deliver the Guarantee, dated as of the date hereof, to the Company. The Guarantee is in full force and effect and has not been
withdrawn or terminated (other than termination in accordance with the express terms of the Guarantee) or otherwise amended, supplemented or modified (other than amendments, supplements or modifications made with the express written consent of
Parent) in any respect. The Guarantee is a legal and valid and binding obligation of the Guarantors, enforceable against the Guarantors in accordance with its terms, subject to the Bankruptcy and Equity Exception (other than as a result of a
termination of the Guarantee in accordance with the express terms of the Guarantee or as a result of amendments, supplements or modifications of the Guarantee made with the express written consent of Parent). No event has occurred which, with or
without notice, lapse of time or both, would constitute a default or breach on the part of the Guarantors under such Guarantee.
Section
4.09
Brokers
. No broker, finder or investment banker other than LionTree Advisors, LLC is entitled to any brokerage, finders or other fee or commission in connection with the Transactions based on
arrangements made by or on behalf of Parent, Sub or any of their respective affiliates.
Section
4.10
Solvency
. Assuming that (a) the conditions to the obligation of
Parent and Sub to consummate the Merger have been satisfied or waived, (b) the representations and warranties of the Company set forth in
Article III
are accurate in all material respects and (c) the most recent financial statements
included in a Quarterly Report on
Form 10-Q
or an Annual Report on Form 10-K filed by the Company with the SEC present fairly in all material respects the consolidated financial condition of the
Company and its consolidated Company Subsidiaries as at the end of the periods covered thereby and the consolidated results of operations of the Company and its consolidated Company Subsidiaries for the periods covered thereby in accordance with
GAAP, then immediately after giving effect to the consummation of the Transactions (including the funding of the
A-25
Financing being entered into in connection therewith and the Financing Uses), the Surviving Corporation and its Subsidiaries, on a consolidated basis, will be Solvent. Parent and Sub are not
entering into the Transactions with the intent to hinder, delay or defraud either present or future creditors of Parent, Sub, the Company, any Company Subsidiary or any affiliates thereof.
Section
4.11
Absence of Certain Arrangements
. Other than this Agreement and the
Voting Agreements, as of the date hereof, there are no Contracts or any commitments to enter into any Contract between Parent, Sub or any of their respective controlled affiliates, on the one hand, and any director, officer, employee or stockholder
of the Company, on the other hand, relating to the Transactions or the operations of the Surviving Corporation after the Effective Time. Neither Parent nor any of its affiliates has entered into any Contract or any commitments to enter into any
Contract pursuant to which: (i) any stockholder of the Company would be entitled to receive consideration of a different amount or nature than the Merger Consideration or (ii) other than the Voting Agreements, any stockholder of the
Company agrees to vote to adopt this Agreement or approve the Merger or agrees to vote against any Competing Proposal.
Section
4.12
Entity Structure
.
Section
4.12
of the Parent Disclosure Schedule sets forth a list of each person who, as of the date hereof, (a) holds a direct or indirect interest
(including aggregated interests) in Parent that is required to be disclosed pursuant to 47 C.F.R. § 63.04 and 63.24 or (b) exercises control over Parent as defined in 47 C.F.R. § 63.09(b) (each person covered by (a) or (b), a
Reportable Person
), including (i) the jurisdiction of organization of such person (if such person is not an individual) or the citizenship of such person (if such person is an individual) and (ii) the equity or voting
interests of Parent or such other Reportable Person that are held by such person if such direct or indirect interest is 10% or greater. As of the date hereof, all Reportable Persons who are individuals are solely U.S. citizens (i.e., not holding any
form of
non-U.S.
and/or dual citizenship) and all Reportable Persons that are entities are organized in United States. None of Parent nor any of its affiliates (within the meaning of 47 U.S.C. §
153(1)) (A) is a telecommunications provider pursuant to 47 C.F.R. § 63.03(b)(ii); (B) is an affiliate of a foreign carrier pursuant to 47 C.F.R. § 63.12(c)(1); or (C) is an affiliate of a dominant U.S. carrier pursuant to 47 C.F.R.
§ 63.12(c)(2). As of the date hereof, to the knowledge of Parent and pursuant to 47 C.F. R. s 63.03(c)(i)-(iv), (x) the applications to be filed by the parties for the FCC Approvals are not expected by Parent to include a
non-routine
request for waiver of the Commissions rule or, on their face, violate a Commission rule or the Communications Act; and (y) Parent expects to respond promptly to Commission inquiries assuming
timely cooperation by the Company to the extent required. To the knowledge of Parent, there is no fact or circumstance relating to the entity structure or ownership that would cause the FCC to deny the grant of the FCC Approvals or a State PSC to
deny the grant of a State PSC Approval.
Section
4.13
Acknowledgment of No Other
Representations or Warranties
. Each of Parent and Sub acknowledges that it has conducted its own independent investigation and analysis of the business, operations, assets, liabilities, results of operations, condition (financial or otherwise)
and prospects of the Company and the Company Subsidiaries. Each of Parent and Sub acknowledges and agrees that, except for the representations and warranties contained in
Article
III
and in any certificate or other
agreement provided pursuant to, or entered into in connection with, this Agreement or in any of the Transaction Documents and except in the case of fraud, none of the Company, the Company Subsidiaries or any of their respective affiliates or the
Company Representatives make or have made any other representation or warranty, either express or implied, concerning the Company or the Company Subsidiaries or any of their respective businesses, operations, assets, liabilities, results of
operations, condition (financial or otherwise) or prospects or the Transactions. To the fullest extent permitted by applicable Law, except with respect to the representations and warranties contained in
Article
III
and in
any certificate or other agreement provided pursuant to this Agreement or in any of the Transaction Documents or any breach of any covenant or other agreement of the Company contained in this Agreement or in any of the Transaction Documents and
except in the case of fraud or willful breach, none of the Company, the Company Subsidiaries or any of their respective affiliates or the Company Representatives shall have any liability to Parent or Sub or their respective affiliates or
representatives on any basis (including in contract or tort, under federal or state securities Laws or otherwise) based upon any other representation or warranty, either express or implied, included in any information or statements (or any omissions
therefrom) provided or made available by the
A-26
Company, the Company Subsidiaries or their respective affiliates or the Company Representatives to Parent, Sub or their respective affiliates or representatives in connection with the
Transactions.
ARTICLE V
COVENANTS
Section
5.01
Conduct of Business by the Company Pending the Merger
. The Company agrees that between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in
accordance with its terms, except as set forth in
Section
5.01
of the Company Disclosure Letter or to the extent required by any other provision of this Agreement, unless Parent shall otherwise agree in writing (which
agreement shall not be unreasonably withheld, delayed or conditioned), the Company will, and will cause each Company Subsidiary to, use commercially reasonable efforts to conduct its operations in all material respects in the ordinary course of
business and to (A) preserve intact its material assets, properties and Contracts; (B) keep available the services of its current officers and key employees; (C) preserve the current relationships with customers, suppliers,
distributors, lessors, licensors, licensees, creditors, contractors, Governmental Entities and other persons with whom the Company or any of the Company Subsidiaries has business relations; and (D) take the actions set forth on
Section
5.01(n)(2)
of the Company Disclosure Letter. Without limiting the foregoing, except as set forth in
Section
5.01
of the Company Disclosure Letter, or to the extent required by any other
provision of this Agreement, the Company shall not, and shall not permit any Company Subsidiary to, between the date of this Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, do any
of the following without the prior written consent of Parent (which consent shall not be unreasonably withheld, delayed or conditioned):
(a)
amend the Company Charter or the Company By-laws or any equivalent organizational or governing documents of any Company Subsidiary;
(b)
transfer, issue, sell, grant, encumber, deliver, pledge or authorize the transfer, issuance, sale, grant, encumbrance,
delivery or pledge of any equity securities in the Company or any Company Subsidiary, or securities convertible into, or exchangeable or exercisable for, any such equity securities, or any rights of any kind to acquire any such equity securities or
such convertible or exchangeable securities, other than the issuance of Shares upon the exercise of Company Options and options granted under the Company Stock Purchase Plan and the vesting or settlement of Stock Units or Notional Shares, in each
case in accordance with the terms thereof and outstanding as of the date of this Agreement (or otherwise permitted to be granted hereunder);
(c)
sell, assign, lease, license, sublicense, pledge, transfer, convey or otherwise dispose of, divest or spin off, abandon, waive,
relinquish or permit to lapse, exchange or swap, mortgage or otherwise encumber or subject to any Lien (other than any Permitted Lien) any properties or assets with a value in excess of $5,000,000 in the aggregate, except in each case (i) in
connection with any transaction solely between or among the Company and any of the wholly-owned Company Subsidiaries or solely between or among the wholly-owned Company Subsidiaries or (ii) sales or dispositions made in the ordinary course of
business (and not, for the avoidance of doubt, sales or dispositions of any person, division, a substantial portion of the assets of any person, business or equity securities);
(d)
declare, set aside, make or pay any dividend or other distribution with respect to the capital stock of the Company, whether
payable in cash, stock, property or a combination thereof;
(e)
other than in connection with the exercise of any outstanding
Company Options permitted by the terms of such Company Options, or the payment of related withholding Taxes, by net exercise or by the tendering of shares, or Tax withholdings on the vesting or payment of Stock Units, Restricted Stock or Notional
Shares, reclassify, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its equity securities or any options, warrants, securities or other rights exercisable for or convertible
into any such equity securities;
A-27
(f)
merge or consolidate any Company Subsidiary with any person or adopt a plan of
complete or partial liquidation or resolutions providing for a complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of the Company;
(g)
make or offer to make any acquisition of any interest in any person or any division, assets, properties, businesses or equity
securities thereof (including by merger, consolidation or acquisition of stock or assets), other than acquisitions of assets or properties (and not, for the avoidance of doubt, the acquisition of any person, division, substantially all of the assets
of any person, business or equity securities) in the ordinary course of operations;
(h)
incur any Indebtedness for borrowed money
or issue any debt securities, or assume or guarantee the obligations of any person (other than a wholly-owned Company Subsidiary) for borrowed money, except (i) in connection with refinancings of existing Indebtedness (other than Indebtedness
under the Credit Agreements or the Notes), (ii) for borrowings in the ordinary course of business not to exceed $5,000,000, (iii) Indebtedness among the Company and the wholly-owned Company Subsidiaries or among the wholly-owned Company
Subsidiaries, (iv) Indebtedness under any revolving credit facility of the Company in existence as of the date hereof and any credit facility of the Company hereafter created with revolving indebtedness on terms substantially the same as those
governing the Companys existing revolving credit facility as it may have been amended consistent with this
clause (h)
in an aggregate amount under this
clause (iv)
not to exceed the aggregate amount of commitments under
the revolving credit facility of the Company in existence as of the date hereof, (v) for any guarantee by the Company of Indebtedness of the wholly-owned Company Subsidiaries or guarantee by the Company Subsidiaries of Indebtedness of the
Company or any of the wholly-owned Company Subsidiaries;
(i)
make any loans, advances or capital contributions to, or investments
in, any other person (other than any wholly-owned Company Subsidiary) other than (i) loans made in the ordinary course of business not to exceed $5,000,000 in the aggregate and (ii) in connection with transactions permitted pursuant to
Section
5.01(g)
;
(j) except to the extent required by Law or the terms of any Company Benefit Plan or as
specifically contemplated by
Section
2.03
or
Section
5.12, and subject, for the avoidance of doubt, to the prohibitions otherwise set forth in Section
5.01
: (i) increase the
compensation or benefits payable or to become payable to its directors, officers or employees other than in the ordinary course of business with respect to members of the Company Board and employees whose annual rate of base pay is less than
$150,000; (ii) adopt or enter into any employment agreement or retention bonus or incentive plan, agreement or other arrangement; (iii) except as otherwise permitted by this
Section
5.01(j)
, establish, adopt,
enter into, amend or terminate any collective bargaining, bonus, profit sharing, thrift, pension, retirement, deferred compensation, employment, termination, severance or other plan or agreement; (iv) terminate any employees whose annual rate
of base pay is greater than $150,000, other than for cause or (v) take any action to amend or waive any performance or vesting criteria or accelerate vesting, exercisability, payment or funding under any Company Benefit Plan;
(k) make any material change in accounting policies or procedures, other than as required by GAAP, applicable Law or any Governmental Entity
with competent jurisdiction;
(l) enter into or amend any Company Affiliate Contract;
(m) except in the ordinary course of business, (i) terminate or fail to use commercially reasonable efforts to renew any Company Material
Contract or material Company Lease, (ii) modify, amend, waive, release or assign any material rights or claims under any Company Material Contract or material Company Lease or (iii) enter into any Contract that would have constituted a
Company Material Contract or material Company Lease if entered into prior to the date of this Agreement;
(n) make any capital
expenditures that in the aggregate exceed $5,000,000;
provided
,
however
, that notwithstanding the foregoing, the Company and any Company Subsidiary shall be permitted to make
capital
A-28
expenditures, with respect to capital expenditures prior to December 31, 2017, in accordance with the 2017 capital expenditure budget as set forth on, and subject to the terms and conditions
of, Schedule 5.01(n)(1) of the Company Disclosure Letter or, with respect to capital expenditures after January 1, 2018, in accordance with the 2018 capital expenditure budget, which budget (a true and complete copy of which shall be provided
to Parent upon approval thereof by the Company Board) shall be subject to Parents prior written approval (not to be unreasonably withheld, conditioned or delayed);
(o) enter into any Contract with respect to the voting or registration of the shares of the Companys or the Company Subsidiaries
capital stock or other securities, equity interests or ownership interests;
(p) cancel, settle or compromise any Proceeding or series of
Proceedings other than cancellations, settlements or compromises of Proceedings (i) that do not, individually or in the aggregate, involve the payment of more than $2,000,000
(net of any
amount covered by insurance or indemnification) in excess of the amount reserved on the latest consolidated balance sheet of the Company in respect of the applicable Proceeding, as set forth on Section 5.01(p) of the Company Disclosure Letter, and
do not involve any material injunction or nonmonetary relief on the Company or any of the Company Subsidiaries or (ii) permitted pursuant to
Section
5.15
;
(q) make, change or revoke any material Tax election; change any material method of Tax accounting; change any Tax accounting period; file any
material amended Tax Return; settle or compromise any Proceeding, audit, examination or investigation 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 foreign Law) with respect to any material amount of Tax; or surrender any claim for a refund of a material amount of Taxes, in each case except as required by Law;
(r) fail to use commercially reasonable efforts to prevent any material Company Permit from expiring or being revoked, suspended or adversely
modified, or knowingly take or fail to take any action that is reasonably likely to cause the FCC or any State PSC to institute proceedings for the suspension, revocation or adverse modification of any material Company Permit; or
(s) authorize or enter into any Contract to do any of the foregoing.
Nothing contained in this Agreement shall give Parent or Sub, directly or indirectly, the right to control or direct the operations of the
Company prior to the Effective Time.
Section
5.02
Agreements Concerning Parent
and Sub
. Parent covenants and agrees to take all actions necessary or advisable to ensure the due, prompt and faithful payment, performance and discharge by Sub of, and the compliance by Sub with, all of the covenants, agreements, obligations
and undertakings of Sub under this Agreement in accordance with the terms of this Agreement. Parent shall, immediately following execution of this Agreement, cause this Agreement to be adopted by the sole stockholder of Sub in accordance with
applicable Law and the certificate of incorporation and
by-laws
of Sub.
Section
5.03
Solicitation; Change of Company Recommendation
.
(a)
Except as permitted by this
Section
5.03
, (i) from and after the date of this Agreement, the Company shall, shall cause the Company Subsidiaries and its and their respective directors, officers and employees to, and shall use reasonable best
efforts to cause the other Company Representatives to, immediately cease any solicitations, discussions or negotiations with any persons that may be ongoing with respect to any Competing Proposal and to have destroyed or returned to the Company any
confidential information that has been provided to any person in connection with any Competing Proposal and will enforce and, except as otherwise prohibited by applicable Law, will not waive any provisions of, any confidentiality or standstill
agreement (or any similar agreement) to which the Company or any Company Subsidiary is a party relating to any such Competing
A-29
Proposal;
provided
, that the Company shall be permitted to grant a waiver of any standstill agreement, in response to a bona fide unsolicited request (and to permit such request) for such
waiver from the counterparty thereto, to permit a Competing Proposal to be made and (ii) from and after the date of this Agreement until the earlier of the Effective Time and the termination of this Agreement, the Company shall not, shall cause
the Company Subsidiaries and its and their respective directors, officers and employees not to, and shall use reasonable best efforts to cause any other Company Representative not to, directly or indirectly, (A) initiate, solicit or knowingly
encourage or facilitate (including by way of furnishing
non-public
information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the
submission of any Competing Proposal, (B) furnish any
non-public
information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal,
(C) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with, knowingly encourage or facilitate in any way any effort by, any third person with respect to any Competing Proposal,
(D) approve or recommend, or propose to approve or recommend, a Competing Proposal or (E) agree to do any of the foregoing. The Company shall not, and shall cause the Company Subsidiaries not to, enter into any Contract with any person
subsequent to the date of this Agreement, and none of the Company or any Company Subsidiary is party to any Contract, in each case, that prohibits the Company from complying with its obligations under this
Section
5.03
.
(b)
Notwithstanding anything to the contrary contained in this Agreement, but subject to the last sentence of this
Section
5.03(b)
, if, at any time following the date of this Agreement and prior to receipt of the Company Stockholder Approval, (i) the Company has received a
bona
fide
written Competing
Proposal from a person that did not result from a breach of this
Section
5.03
(other than a breach that is
de minimis
), (ii) the Company Board determines in good faith, after consultation with its financial
advisors and outside counsel, that such Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal and (iii) the Company provides prior written notice to Parent disclosing its receipt of the Competing Proposal
and including the name of the person making such Competing Proposal, the material terms and conditions of such Competing Proposal and a copy of any relevant Acquisition Agreement and any other relevant transaction documents, and disclosing its
intent to furnish information or enter into discussions or negotiations with such person pursuant to this
Section
5.03(b)
, then the Company may (A) furnish information with respect to the Company and the Company
Subsidiaries to the person making such Competing Proposal and its representatives and (B) participate in discussions or negotiations with the person making such Competing Proposal and its representatives regarding such Competing Proposal;
provided
,
however
, that the Company (x) will not, will not permit the Company Subsidiaries to, and will not authorize the Company Representatives to, disclose any material
non-public
information regarding the Company to such person without first entering into an Acceptable Confidentiality Agreement with such person; (y) will keep Parent reasonably informed, on a prompt basis (and in any event within twenty-four
(24) hours thereafter), of any material amendments or material developments with respect to such Competing Proposal (including any material changes thereto, and including by providing copies of any revised or new Acquisition Agreement and any
other relevant transaction documents) and (z) will provide to Parent any material information concerning the Company or the Company Subsidiaries to be provided or made available to such other person (or its representatives) that was not
previously provided or made available to Parent. None of the foregoing shall prohibit the Company or the Company Representatives from contacting any person or group of persons that has made a Competing Proposal after the date of this Agreement
solely to request clarification of the terms and conditions thereof so as to determine whether the Competing Proposal constitutes or could reasonably be expected to lead to a Superior Proposal, and any such actions shall not be a breach of this
Section
5.03
;
provided
,
however
, that the Company shall have provided to Parent the information in clause
(iii)
of the first sentence of this
Section 5.03(b)
.
(c)
Except as set forth in
Section
5.03(d)
or
Section
5.03(e)
, neither the Company
Board nor any committee thereof shall (i) adopt, authorize, approve or recommend, or publicly propose to adopt, authorize, approve or recommend, any Competing Proposal, (ii) withhold, withdraw, modify, qualify or amend, or publicly propose
to withhold, withdraw, modify, qualify or amend, in each case in a manner adverse to Parent, the Company Recommendation or fail to include the Company Recommendation in the Proxy Statement, (iii) take any formal
A-30
action or make any recommendation or public statement in connection with a tender offer or exchange offer other than a recommendation against such offer or a temporary stock, look and
listen communication by the Company Board pursuant to Rule
14d-9(f)
of the Exchange Act, (iv) fail to publicly recommend against any Competing Proposal, or fail to publicly reaffirm the Company
Board Recommendation, in each case within ten (10) days after the written request of Parent following a Competing Proposal that has been publicly announced (or such fewer number of days as remains prior to the Company Stockholder Meeting), (v)
resolve, propose or agree to do any of the foregoing (any action set forth in the foregoing
clause
(i),
(ii)
,
(iii)
,
(iv)
or
(v)
, a
Change of Company Recommendation
) or
(vi) allow the Company or any of the Company Subsidiaries to enter into any letter of intent, term sheet, memorandum of understanding, agreement in principle, merger agreement, acquisition agreement or other similar agreement relating to, or
that is intended to result in, or would reasonably be expected to lead to, any Competing Proposal (other than an Acceptable Confidentiality Agreement) (each an
Acquisition Agreement
) or requiring the Company to abandon, terminate
or fail to consummate the Transactions.
(d)
Notwithstanding anything to the contrary contained in this Agreement, at any time
prior to receipt of the Company Stockholder Approval, the Company Board may make a Change of Company Recommendation, solely in response to (1) a Superior Proposal or (2) an Intervening Event, if:
(i)
either (A) a Competing Proposal that did not result from a breach (other than a breach that is
de minimis
) of this
Section
5.03
is made to the Company by a third person and such Competing Proposal is not withdrawn or (B) an Intervening Event has occurred and is continuing;
(ii)
the Company Board determines in good faith, after consultation with its financial advisors and outside legal counsel, that
(x) in the case of a Competing Proposal, such Competing Proposal constitutes a Superior Proposal and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law;
(iii)
the Company provides Parent at least three (3) Business Days prior written notice of the Companys intention to
make a Change of Company Recommendation (a
Notice of Change of Recommendation
), which notice shall (x) state expressly that it has received a Superior Proposal or that an Intervening Event has occurred, (y) in the case
of a Superior Proposal, identify the person making such Superior Proposal and include the material terms and conditions of such Superior Proposal (and the Company shall contemporaneously provide a copy of any relevant Acquisition Agreement and any
other relevant transaction documents to Parent), or, in the case of an Intervening Event, the material facts and circumstances of such Intervening Event and (z) state expressly that the Company Board intends to make a Change of Company
Recommendation, and specifying, in reasonable detail, the reasons therefor;
(iv)
if requested by Parent, the Company has
negotiated in good faith with Parent with respect to any changes to the terms of this Agreement proposed by Parent for at least three (3) Business Days following receipt by Parent of such Notice of Change of Recommendation (it being understood
and agreed that any amendment to any material term of such Superior Proposal shall require a new Notice of Change of Recommendation and an additional two (2) Business Day period from the date of such notice);
(v)
taking into account any changes to the terms of this Agreement offered by Parent in writing, the Company Board has determined in
good faith, after consultation with its financial advisors and outside legal counsel, that (x) in the case of a Competing Proposal, such Competing Proposal would continue to constitute a Superior Proposal if such changes offered in writing by
Parent were to be given effect and (y) the failure to make a Change of Company Recommendation would be inconsistent with its fiduciary duties under applicable Law; and
(vi)
the Company shall have complied with this
Section
5.03
with respect to such Superior Proposal or
Intervening Event (other than with respect to any breach that is
de minimis
).
(e)
Notwithstanding any Change of Company
Recommendation, unless this Agreement shall have been terminated in accordance with
Article
VII
, (x) this Agreement shall be submitted to the stockholders of the
A-31
Company at the Company Stockholder Meeting for the purpose of obtaining the Company Stockholder Approval, and nothing contained herein shall be deemed to relieve the Company of such obligation
and (y) the Company Board shall not submit to the stockholders of the Company any Competing Proposal, or, except as permitted herein, propose to do so.
(f)
Nothing contained in this
Section
5.03
shall prohibit the Company Board from (i) disclosing to the
stockholders of the Company a position contemplated by
Rule 14e-2(a),
Rule 14d-9
or Item 1012(a) of Regulation
M-A
promulgated under the Exchange Act or (ii) making any disclosure to the stockholders of the Company if the Company Board determines in good faith, after consultation with outside counsel, that the failure to make such disclosure would be
inconsistent with its fiduciary duties under applicable Law to the stockholders of the Company (for the avoidance of doubt, it being agreed that the issuance by the Company or the Company Board of a stop, look and listen statement
pending disclosure of its position, as contemplated by Rules
14d-9
and
14e-2(a)
promulgated under the Exchange Act, shall not constitute a Change of Company
Recommendation);
provided
,
however
, that in any event, the Company Board shall not make a Change of Company Recommendation except in accordance with
Section
5.03(d)
.
(g)
Any violation of the restrictions set forth in this
Section
5.03
by any Company Representative shall be
deemed to be a breach of this
Section
5.03
by the Company.
Section
5.04
Preparation of the Proxy Statement; Company Stockholder Meeting
.
(a)
As promptly as reasonably practicable following the date of this Agreement, the Company shall prepare and file a preliminary
Proxy Statement with the SEC. Subject to
Section
5.03
, the Proxy Statement shall include the Company Recommendation and the written opinion of Centerview Partners LLC, dated May 9, 2017, that as of the date of such
opinion and based on and subject to the various assumptions made, procedures followed, matters considered and qualifications and limitations on the review undertaken in preparing such opinion as set forth therein, the Merger Consideration is fair,
from a financial point of view, to the holders of Company Common Stock (other than Excluded Shares and any Shares held by any affiliate of Parent prior to the Effective Time). Parent shall cooperate with the Company in the preparation of the Proxy
Statement, and shall furnish all information concerning it, Sub, the Guarantors, the Equity Financing Sources, any of their affiliates and any transaction any of them have or are contemplating entering into in connection with this Agreement that is
necessary in connection with the preparation of the Proxy Statement. The parties shall use their respective reasonable best efforts to have the Proxy Statement cleared by the SEC as promptly as reasonably practicable after such filing. Prior to
filing or mailing the Proxy Statement or any related documents (or in each case, any amendment or supplement thereto) or responding to any comments of the SEC with respect thereto, to the extent reasonably practicable, the Company shall provide
Parent with an opportunity to review and comment on such document or response and shall include any comments on such document or response reasonably proposed by Parent. The Company shall notify Parent promptly of the receipt of any written or oral
comments to the Proxy Statement from the SEC or its staff and of any written or oral request by the SEC or its staff for amendments or supplements to the Proxy Statement or for additional information and will supply Parent with copies of all
correspondence between the Company and the SEC or its staff with respect to the Proxy Statement or the Transactions (including a summary of any oral conversations).
(b)
If, at any time prior to the Company Stockholder Meeting, any information relating to the Company or Parent, Sub, the Guarantors,
the Equity Financing Sources, any of their affiliates or any transaction any of them have or are contemplating entering into in connection with this Agreement, is discovered by the Company or Parent that should be set forth in an amendment or
supplement to the Proxy Statement so that such document would not include any misstatement of a material fact or omit to state any material fact required to be stated therein or make the statements made therein, in light of the circumstances under
which they are made, not misleading, the party that discovers such information shall as promptly as practicable notify the other party. Following such notification, the Company shall file with the SEC an appropriate amendment or supplement
describing such information as promptly as reasonably practicable after Parent has had a reasonable opportunity
A-32
to review and comment thereon (and the Company will include any comments to such amendment or supplement reasonably proposed by Parent), and, to the extent the Company determines it is required
by applicable Law, the Company shall disseminate such amendment or supplement to the stockholders of the Company.
(c)
The Company
shall, as promptly as reasonably practicable after the Proxy Statement is cleared by the SEC for mailing to the Companys stockholders, mail the Proxy Statement to the Companys stockholders and duly call, give notice of, convene and hold
a meeting of its stockholders (the
Company Stockholder Meeting
) for the purpose of seeking the Company Stockholder Approval. Unless a Change of Company Recommendation has occurred, the Company shall use its reasonable best efforts
to obtain the Company Stockholder Approval. The Company agrees that, unless this Agreement shall have been terminated in accordance with
Article
VII
, its obligations pursuant to this
Section
5.04
shall not be affected by the commencement, public proposal, public disclosure or communication to the Company of any Competing Proposal or by the making of any Change of Company Recommendation.
(d)
Notwithstanding any provision of this Agreement to the contrary, the Company may, in its sole discretion, adjourn or postpone the
Company Stockholder Meeting to a date that is no later than thirty (30) days after the date on which the Company Stockholder Meeting was originally scheduled (provided that any adjournments or postponements required by applicable Law shall not
be subject to such limitation), and may change the record date thereof in connection therewith, in each case (i) to the extent necessary, in the judgment of the Company Board, to ensure that any required supplement or amendment to the Proxy
Statement is provided to the stockholders of the Company a reasonable amount of time in advance of the Company Stockholder Meeting, (ii) if as of the time for which the Company Stockholder Meeting is originally scheduled (as set forth in the
Proxy Statement) there are insufficient shares of Company Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct the business of the Company Stockholder Meeting or to the extent that at such time the
Company has not received proxies sufficient to allow the receipt of the Company Stockholder Approval at the Company Stockholder Meeting or (iii) to the extent the Company determines in good faith that failure to do so would be inconsistent with
the Companys obligations under applicable Law.
Section
5.05
Access to
Information
. From the date of this Agreement to the Effective Time, and notwithstanding anything to the contrary in the Confidentiality Agreement, the Company shall, and shall cause each Company Subsidiary to: (a) provide to Parent and Sub
and their respective representatives reasonable access during normal business hours in such a manner as not to interfere with the operation of any business conducted by the Company or any Company Subsidiary, upon prior written notice to the Company,
to the officers, employees, properties, offices and other facilities of the Company and the Company Subsidiaries and to the books and records (and any Tax Returns and Tax records) thereof; and (b) furnish promptly such information concerning
the business, properties, Contracts, Taxes, assets and liabilities of the Company and Company Subsidiaries as Parent or its representatives may reasonably request;
provided
,
however
, that the Company shall not be required to (or to
cause any Company Subsidiary to) afford such access or furnish such information to the extent that the Company believes in good faith that doing so would: (i) result in the loss of attorney-client privilege (
provided
that the Company
shall use its reasonable best efforts to allow for such access or disclosure in a manner that does not result in a loss of attorney-client privilege); (ii) violate any confidentiality obligations of the Company or any Company Subsidiary to any
third person or otherwise breach, contravene or violate any then effective Contract to which the Company or any Company Subsidiary is party (
provided
that the Company shall use commercially reasonable efforts to obtain the required consent to
provide such access or disclosure); or (iii) breach, contravene or violate any applicable Law (including the HSR Act or any other Antitrust Law). Parent shall, and shall cause each of its Subsidiaries to, and shall use reasonable best efforts
to cause its and their representatives to, hold all information provided or furnished pursuant to this
Section
5.05
confidential in accordance with the terms of the Confidentiality Agreement. During any visit to the
business or property sites of the Company or any of the Company Subsidiaries, each of Parent and Sub shall, and shall cause their respective representatives accessing such properties to, comply with all applicable Laws and all of the Companys
and the Company Subsidiaries safety and security procedures. Notwithstanding anything to the contrary contained in this
Section
5.05
, from the date of this Agreement to the Effective Time, none of Parent, Sub or any
of their
A-33
respective affiliates shall conduct, without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), any environmental investigation at any real
property owned or leased by the Company, and in no event may any environmental investigation include any sampling or other intrusive investigation of air, surface water, groundwater, soil or anything else at or in connection with any of such real
property.
Section
5.06
Appropriate Action; Consents; Filings
.
(a)
Subject to
Section
5.03
, each of Parent and the Company shall (and Parent shall cause each of its
affiliates to) use its reasonable best efforts to consummate the Transactions and to cause the conditions set forth in
Article
VI
to be satisfied. Without limiting the generality of the foregoing, Parent shall (and shall
cause Sub and each of Parents or Subs affiliates to) and the Company shall (and shall cause each of the Company Subsidiaries and each of their respective affiliates to) use its reasonable best efforts to (i) promptly obtain all
actions or nonactions, consents, Permits (including Environmental Permits), waivers, approvals, authorizations and orders from Governmental Entities or other persons necessary or advisable in connection with the consummation of the Transactions,
(ii) as promptly as practicable (and, (x) solely with respect to the filings required of the parties or their ultimate parent entities under the HSR Act, in any event within fifteen (15) Business Days after the date of
this Agreement and (y) solely with respect to the filings set forth on
Section 5.06(a)
of the Company Disclosure Letter, in any event within fifteen (15) calendar days after the date of this Agreement), make (or cause to be made)
all registrations and filings or, if consistent with agency practice, a draft of such a filing, with any Governmental Entity or other persons necessary or advisable in connection with the consummation of the Transactions, including the filings
required of the parties or their ultimate parent entities under the HSR Act or any other Antitrust Law, the FCC Approvals and the State PSC Approvals, and promptly make any further filings pursuant thereto that may be necessary or
advisable, including the furnishing to the FCC or any State PSCs of any documents, materials or other information requested, (iii) defend all lawsuits or other legal, regulatory, administrative or other Proceedings to which it or any of its
affiliates is a party challenging or affecting this Agreement or the consummation of the Transactions, in each case until the issuance of a final,
non-appealable
order with respect to each such lawsuit or
other Proceeding, (iv) seek to have lifted or rescinded any injunction or restraining order which may adversely affect the ability of the parties to consummate the Transactions, in each case until the issuance of a final,
non-appealable
order with respect thereto,
(v)
seek to resolve any objection or assertion by any Governmental Entity challenging this Agreement or the Transactions and (vi) execute and
deliver any additional instruments necessary or advisable to consummate the Transactions.
(b)
In furtherance of the obligations
set forth in
Section
5.06(a)
, Parent shall promptly take any and all actions necessary or advisable in order to avoid or eliminate each and every impediment to the consummation of the Transactions and to obtain all
approvals and consents, including approvals and consents under any Antitrust Laws, that may be required by any foreign or U.S. federal, state or local Governmental Entity, in each case with competent jurisdiction, so as to enable the parties to
consummate the Transactions as promptly as practicable, including accepting operational restrictions or limitations on, and committing to or effecting, by consent decree, hold separate orders, trust or otherwise, the sale, license, disposition or
holding separate of, such assets or businesses of Parent, Sub, the Company, the Surviving Corporation or any of their respective affiliates (and the entry into agreements with, and submission to decrees, judgments, injunctions or orders of the
relevant Governmental Entity), in each case, conditioned on the Closing, as may be required to obtain such approvals or consents of such Governmental Entities or to avoid the entry of, or to effect the dissolution of or vacate or lift, any decrees,
judgments, injunctions or orders that would otherwise have the effect of preventing or materially delaying the consummation of the Transactions. Neither Parent nor Sub shall take any action, including acquiring or making any investment in any person
or any division or assets thereof, that would reasonably be expected to prevent or cause a material delay in the satisfaction of the conditions contained in
Article
VI
or the consummation of the Transactions.
(c)
Without limiting the generality of anything contained in this
Section
5.06
, each party hereto shall:
(i) give the other parties prompt notice of the making or commencement of any request, inquiry, investigation or
A-34
legal Proceeding by or before any Governmental Entity with respect to the Transactions; (ii) keep the other parties informed as to the status of any such request, inquiry, investigation or
legal Proceeding; and (iii) promptly inform the other parties of any communication to or from the FTC, the Antitrust Division, the FCC, any State PSC or any other Governmental Entity regarding the Transactions. In addition, except as may be
prohibited by any Governmental Entity or by any Law, in connection with any such request, inquiry, investigation or legal Proceeding, each party hereto will permit authorized representatives of the other parties to be present, to the extent
practicable, at each meeting or conference relating to such request, inquiry, investigation or legal Proceeding and to have access to, be consulted in connection with and, to the extent practicable, provide the opportunity to review in advance any
document, opinion or proposal made or submitted to any Governmental Entity in connection with such request, inquiry, investigation or legal Proceeding. Each party hereto will consult and cooperate with the other parties and will consider in good
faith the views of the other parties in connection with any filing, analysis, appearance, presentation, memorandum, brief, argument, opinion or proposal made or submitted to any Governmental Entity in connection with the Transactions. The Company
shall, within five (5) Business Days of such request, provide all information reasonably requested by Parent to determine the necessity of any regulatory filing necessary to consummate the Transactions. With respect to each registration, filing
and submission made by any party hereto with the FTC, the Antitrust Division, the FCC, any State PSC, or any other Governmental Entity, each of Parent and the Company shall (i) provide the other with all information necessary for the
preparation of such registration, filing or submission on a timely basis, and shall work diligently to prosecute the applications for such approvals; and (ii) have the right to review, comment and approve such registration, filing, and
submission;
provided
,
however
, that materials provided to the other parties may be redacted to remove references to valuation and may, as each party deems advisable and necessary, reasonably designate any material provided to the other
under this
Section
5.06(c)
as
Antitrust Counsel Only Material
. Such materials and the information contained therein shall be given only to the outside antitrust counsel of the recipient and will
not be disclosed by such outside counsel to employees, officers, directors or managers of the recipient unless express permission is obtained in advance from the source of the materials (Parent or Company, as the case may be) or its legal counsel.
(d)
Notwithstanding anything to the contrary herein or otherwise, but subject to the obligation of Parent set forth in
Section
5.06(c)
, (i) Parent shall determine strategy and timing, lead all proceedings and coordinate all activities with respect to seeking any actions,
non-actions,
terminations or
expirations of waiting periods, consents, approvals or waivers of any Governmental Entity as contemplated hereby, after consultation with the Company, (ii) the Company shall, and shall cause each of its Subsidiaries to, use its reasonable best
efforts to take such actions as reasonably requested by Parent, after consultation with the Company, in connection with obtaining any such actions,
non-actions,
terminations or expirations of waiting periods,
consents, approvals or waivers, and (iii) Parent shall have the sole and exclusive right, after consultation with the Company, and subject to Parents obligations pursuant to
Section
5.06(a)
and
Section
5.06(b)
, to propose, negotiate, offer or commit to make or effect any divestitures, dispositions, or licenses of any assets, properties, products, rights, services or businesses, or to agree to any other remedy,
requirement, obligation, condition or restriction to resolve any Governmental Entitys objections to or concerns about the transactions contemplated by this Agreement.
Section
5.07
Financing
.
(a)
Parent and Sub shall use their reasonable best efforts to do (or cause to be done) all things necessary or advisable to arrange and
obtain the Financing not later than the date the Closing is required to be effected in accordance with
Section
1.02
, on the terms and conditions (including, to the extent applicable, the flex provisions)
described in the Financing Commitments and any related Fee Letter (or on other terms that, with respect to conditionality, are not less favorable to Parent or Sub than the terms and conditions (including any flex provisions) set forth in
the Financing Commitments so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in any of clauses (A) through (E) of the immediately succeeding sentence), including using
reasonable best efforts to (i) enter into definitive agreements (which, with respect to the bridge facility documentation, shall not be required until reasonably necessary in connection with the funding of the Debt Financing) with respect to
the Debt Financing on the terms
A-35
and conditions (as such terms may be modified or adjusted in accordance with the terms of, and within the limits of the flex provisions contained in any Fee Letter) contemplated by
the Debt Commitment Letter and the related Fee Letter (or on other terms that, with respect to conditionality, are not less favorable to Parent or Sub than the terms and conditions (including any flex provisions) set forth in the
Financing Commitments so long as such other terms would not (and would not reasonably be expected to) have any result, event or consequence described in any of clauses (A) through (E) of the immediately succeeding sentence) (the
Definitive Debt Financing Agreements
), (ii) satisfy on a timely basis all conditions to funding that are applicable to Parent or Sub in the Financing Commitments and the Definitive Debt Financing Agreements that are within
their control (or, if deemed advisable by Parent, seek the waiver of conditions applicable to Parent or Sub contained in the Financing Commitments or such Definitive Debt Financing Agreements) and comply with their obligations pursuant to the
Financing Commitments, including with respect to the payment of any commitment, engagement or placement fees, (iii) consummate the Financing at or prior to Closing and (iv) enforce their rights under the Financing Commitments and the
Definitive Debt Financing Agreements (including, for the avoidance of doubt, by instituting litigation in respect thereof). Parent and Sub shall not agree to any amendments or modifications to, or grant any waivers of, any condition or other
provision under the Financing Commitments or the definitive agreements relating to the Financing without the prior written consent of the Company (other than any amendment of the Debt Commitment Letter to add lenders, lead arrangers, bookrunners,
syndication agents or any person with similar roles or titles who had not executed the Debt Commitment Letter as of the date hereof) other than amendments, modifications or waivers to the Debt Commitment Letters or the Definitive Debt Financing
Agreements that would not (and would not be reasonably expected to) (A) reduce the aggregate amount of the Debt Financing to an amount below the amount necessary to satisfy the Financing Uses (after taking into account the amount of the Equity
Financing and available cash of the Company and the Company Subsidiaries) unless the Equity Financing is increased by a corresponding amount, (B) impose new or additional conditions or otherwise amend, modify or expand any conditions in a
manner adverse to Parent or Sub or which would not reasonably be expected to have the result, effect or consequence described in any of clauses (A), (B), (D) or (E) of this sentence, to the receipt of the Debt Financing or the Equity Financing,
(C) materially delay or prevent the Closing, (D) make the funding of the Debt Financing or the Equity Financing (or the satisfaction of the conditions to obtaining any of the Financing) less likely to occur or (E) adversely impact the
ability of Parent or Sub to enforce its rights against the other parties to the Debt Commitment Letter or the Equity Commitment Letter or the Definitive Debt Financing Agreements. Parent and Sub shall use their reasonable best efforts to maintain in
effect the Financing Commitments (including any Definitive Debt Financing Agreements that replace the Financing Commitments) until the Transactions to be consummated on the Closing Date are consummated and the repayment or refinancing of any
Indebtedness required in connection with the Transactions required hereunder or under the Financing Commitments has occurred. Neither Parent nor Sub shall release or consent to the termination of the obligations of the Lenders under the Debt
Commitment Letter or the Definitive Debt Financing Agreements.
(b)
In no event shall Parent, Sub, the Guarantors or any of their
respective affiliates (which for purposes of this
Section
5.07
shall be deemed to include each direct investor in Parent) enter into any Contract prohibiting or seeking to prohibit any bank or other potential provider of
debt financing from providing or seeking to provide debt financing to any person other than Parent or Sub in connection with a transaction relating to the Company or the Company Subsidiaries in connection with the Transactions (including in
connection with the making of any Competing Proposal).
(c)
If any portion of the Debt Financing becomes unavailable on the terms
and conditions (including any flex provisions) contemplated in the Debt Commitment Letter, Parent and Sub shall use their reasonable best efforts to, as promptly as practicable following the occurrence of such event, arrange and obtain
from alternative sources of debt financing an amount sufficient to satisfy the Financing Uses (after taking into account the amount of the Equity Financing and available cash of the Company and the Company Subsidiaries) or such unavailable portion
thereof, as the case may be, on terms and conditions (including any flex provisions) that are at least as favorable to Parent and Sub as those contained in the Debt Commitment Letter and the Fee Letter (including the flex
provisions), which shall not expand upon the conditions precedent to the funding on the Closing Date of
A-36
the Financing as set forth in the Financing Commitments in effect on the date hereof or otherwise adversely affect the ability or likelihood of Parent and Sub to timely consummate the
Transactions. The new debt commitment letter and fee letter entered into in connection with such alternative financing are referred to, respectively, as a
New Debt Commitment Letter
and a
New Fee Letter
. If
Parent or Sub enters into any such New Debt Commitment Letter, (i) Parent and Sub shall promptly provide the Company with true, correct and complete copies of such New Debt Commitment Letter and New Fee Letter (which, in the case of the New Fee
Letter, may be redacted in a manner consistent with the provisions of
Section
4.07(a)
), (ii) any reference in this Agreement to the Debt Financing (and any definition incorporating the term Debt
Financing) shall mean the debt financing contemplated by the Debt Commitment Letter as modified pursuant to
clause
(iii)
below, (iii) any reference in this Agreement to the Debt Commitment Letter (and
any definition incorporating the term Debt Commitment Letter) shall be deemed to include the Debt Commitment Letter to the extent not superseded by a New Debt Commitment Letter at the time in question and any New Debt Commitment Letter
to the extent then in effect and (iv) any reference in this Agreement to the Fee Letter (and any definition incorporating the term Fee Letter) shall be deemed to include the Fee Letter to the extent not superseded by a
New Fee Letter at the time in question and any New Fee Letter to the extent then in effect.
(d)
Upon the request of the Company,
Parent and Sub shall, and shall cause their representatives to, keep the Company informed as promptly as practicable (and in any event within two (2) Business Days) in reasonable detail of the status of their efforts to arrange the Financing.
As promptly as practicable (and in any event within two (2) Business Days) after the execution thereof, Parent and Sub shall provide copies of all executed Definitive Debt Financing Agreements to the Company. Without limiting the generality of
the foregoing, Parent shall (i) furnish the Company complete, correct and executed copies of any amendments, modifications or supplements to the Financing Commitments, any Fee Letter (which may be redacted in a manner consistent with the
redactions permitted by
Section
4.07
of this Agreement) and any Definitive Debt Financing Agreement promptly upon their execution and (ii) give the Company prompt written notice (A) of any default or breach (or
any event that, with or without notice, lapse of time or both, would (or could reasonably be expected to) give rise to any default or breach) by any party under any of the Financing Commitments or the definitive agreements relating to the Financing
of which Parent or Sub becomes aware, (B) of any termination of either of the Financing Commitments, (C) of the receipt by Parent or Sub or their respective affiliates of any written notice or other communication from any Financing Source
with respect to any (1) actual or potential default, breach, termination or repudiation of any Financing Commitment, any definitive agreement relating to the Financing or any provision of the Financing Commitments or the definitive agreements
relating to the Financing, in each case by any party thereto, or (2) dispute or disagreement between or among any parties to any Financing Commitment or the definitive agreements relating to the Financing that would reasonably be expected to
prevent or materially delay the Closing or make the funding of the Financing required to satisfy the Financing Uses on the Closing Date less likely to occur and (D) of the occurrence of an event or development that could reasonably be expected
to adversely impact the ability of Parent or Sub to obtain all or any portion of the Financing necessary to satisfy the Financing Uses on the terms, in the manner or from the sources contemplated by the Financing Commitments or the definitive
agreements relating to the Financing, as the case may be.
(e)
Notwithstanding anything to the contrary contained in this
Agreement, nothing contained in this
Section
5.07
will require, and in no event will the reasonable best efforts of Parent or Sub be deemed or construed to require, either Parent or Sub to (i) seek the Equity Financing
from any source other than a counterparty to, or in any amount in excess of that contemplated by, the Equity Commitment Letter or (ii) pay any material fees in excess of those contemplated by the Equity Commitment Letter or the Debt Commitment
Letter.
A-37
(f)
Prior to the Closing, at the Parents sole expense as contemplated by
Section 5.07(i)
below, the Company shall, and shall cause the Company Subsidiaries and the Company Representatives to, in each case, use their reasonable best efforts to provide to Parent and Sub all customary cooperation reasonably requested
by Parent or Sub in connection with the Debt Financing, including reasonable best efforts to:
(i)
prior to and during the Marketing
Period, participate (and cause management of the Company with appropriate seniority and expertise to participate) in a reasonable number of meetings, calls, presentations, road shows, due diligence sessions (including accounting due diligence
sessions), drafting sessions and sessions with rating agencies and assist Parent in obtaining ratings as contemplated by the Debt Financing;
(ii)
assist Parent and the Debt Financing Sources with the preparation of customary rating agency presentations, bank information
memoranda, lender presentations, offering documents, offering memoranda, investor presentations and similar documents required in connection with the Debt Financing;
(iii)
solely with respect to financial information and data derived from the Companys historical books and records, assist Parent
with the preparation of pro forma financial information and pro forma financial statements of the Company and its Subsidiaries to the extent required by SEC rules and regulations or necessary or reasonably required by Parent or the Debt Financing
Sources, it being agreed that the Company will not be required to actually prepare any such pro forma financial information or pro forma financial statements or provide any information or assistance relating to (A) the proposed debt and equity
capitalization or any assumed interest rates, dividends (if any) and fees and expenses relating to such debt or equity capitalization, (B) any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other pro forma
adjustments desired to be incorporated into any information used in connection with the Debt Financing or (C) any financial information related to Parent or any of its Subsidiaries or any adjustments that are not directly related to the
acquisition of the Company by Parent;
(iv)
execute and deliver as of the Closing (but not prior to the Closing) any pledge and
security documents, currency or interest hedging arrangements, other definitive financing documents, or other certificates or documents as may be reasonably requested by Parent or the Debt Financing Sources (including a certificate of the chief
financial officer of the Company with respect to solvency matters in the form set forth as an annex to the Debt Commitment Letter as in effect on the date hereof) and otherwise reasonably facilitate the pledging of collateral and the granting of
security interests in respect of the Debt Financing, it being understood that such documents will not take effect until the Effective Time;
(v)
(A) as soon as reasonably available, furnish Parent, Sub and the Debt Financing Sources with the Required Financing
Information, provided that no such Required Financing Information constituting material
non-public
information may be publicly disclosed until filed by the Company with the SEC or otherwise publicly disclosed
by the Company, and (B) as promptly as practicable, inform Parent if the chief executive officer, chief financial officer, treasurer or controller of the Company or any member of the Company Board shall have knowledge of any facts as a result
of which a restatement of any financial statements to comply with GAAP is probable or under consideration;
(vi)
upon reasonable
request of Parent, assist Parent to obtain customary and reasonable consents, landlord waivers and estoppels,
non-disturbance
agreements, environmental assessments, surveys and title insurance commitments;
(vii) at the request of Parent, (A) deliver notices of prepayment (which may be delivered at Parents request in advance of the
Closing Date so long as they are contingent upon the occurrence of the Closing) within the time periods reasonably requested by Parent and take any actions at or prior to the Effective Time reasonably requested by Parent to facilitate the prepayment
of all outstanding amounts under any of the Credit Agreements (it being understood and agreed that any prepayment is (and shall be) contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or
the Company Subsidiaries to
A-38
complete such prepayment prior to the occurrence of the Closing); (B) arrange for customary payoff letters, lien terminations and releases and instruments and acknowledgements of discharge in
respect of any of the Credit Agreements to be delivered to Parent on or prior to the Closing Date (with drafts to be delivered in advance as reasonably requested by Parent); (C) take all other reasonable actions (including, without limitation,
reasonable best efforts to use cash of the Company and Company Subsidiaries) to facilitate the payoff, discharge and termination in full at the Closing of all amounts outstanding under any of the Credit Agreements; and (D) unwind or novate or
assist Parent in connection with the unwinding or novation of any outstanding interest rate or other swaps or hedges at the Effective Time designated by Parent (notice of which may be delivered at Parents request in advance of the Closing Date
so long as permitted by the underlying swap or hedge documentation to be contingent upon the occurrence of the Closing and no actions shall be required which would obligate the Company or the Company Subsidiaries to complete such unwind or novation
prior to the occurrence of the Closing Date);
(viii) provide customary authorization letters to the Debt Financing Sources authorizing
the distribution of information to prospective lenders or investors and containing a customary representation to the Debt Financing Sources contemplated by the Debt Commitment Letter, including that the public side versions of such documents do not
include material
non-public
information about the Company or the Company Subsidiaries or their securities and the accuracy of the information contained in the disclosure and marketing materials related to the
Debt Financing;
(ix) furnish to Parent and the Debt Financing Sources (A) within 40 days after the end of any fiscal quarter that is
not a fiscal year end, the unaudited consolidated balance sheet of the Company as of the end of such quarter and the related unaudited statements of income and cash flows (which will have been reviewed by the Companys independent accountants
as provided in SAS 100) and (B) within 60 days after the end of any fiscal year, the audited consolidated balance sheet of the Company as of the end of such fiscal year and the related audited statements of income and cash flows;
(x) cause its independent auditors to (A) provide, consistent with customary practice, (x) customary auditors consents and customary
comfort letters (including negative assurance comfort and change period comfort) with respect to financial information relating to the Company and the Company Subsidiaries as reasonably requested by Parent or as necessary or
customary for financings similar to the Debt Financing (including any offering or private placement of debt securities pursuant to Rule 144A under the Securities Act) and (y) reasonable assistance to Parent in connection with Parents
preparation of pro forma financial statements and information required pursuant to
clause (f)(iii)
of this
Section
5.07
and (B) attend accounting due diligence sessions required pursuant to
clause (f)(i)
of this
Section
5.07
;
(xi) (A) promptly furnish Parent and the Debt Financing Sources at least three
(3) Business Days prior to the Closing Date with all documentation and other information required by bank regulatory authorities under applicable know-your-customer and anti-money laundering rules and regulations, including the USA
PATRIOT Act, relating to the Company or any of the Company Subsidiaries, in each case as reasonably requested by Parent at least eight (8) Business Days prior to the Closing Date and (B) cooperate reasonably with the Debt Financing
Sources customary securities offering and secured lending due diligence, to the extent customary and reasonable;
provided
,
however
,
that notwithstanding anything in this
Section
5.07
or
Section
5.08
to the contrary, (1) in no event shall the reasonable best efforts of the Company, its Subsidiaries or Company
Representatives be deemed or construed to require such Persons to, and such Persons shall not be required, to provide such cooperation to the extent it would (A) interfere unreasonably with the business or operations of the Company or any of
the Company Subsidiaries or (B) require the Company or any of its Subsidiaries to take any action that would reasonably be expected to (x) conflict with, or result in any violation or breach of, or default (with or without notice or lapse
of time, or both) under, the Company Charter or Company Bylaws or other comparable organizational documents of the Company Subsidiaries or any Applicable Laws or any material Contract,
A-39
(y) cause any condition to Closing set forth in this Agreement to fail to be satisfied or otherwise cause any breach of this Agreement that would provide Parent or Sub the right to terminate
this Agreement or seek indemnity under the terms hereof (unless, in each case, waived by Parent, Sub and, to the extent required, the Debt Financing Sources), or (z) result in any employee, officer or director of such Person incurring any
personal liability (as opposed to liability in his or her capacity as an officer of such Person) with respect to any matters related to the Debt Financing, (2) neither the Company nor any of its Subsidiaries shall be required to take any action
pursuant to any agreement, certificate or instrument (other than customary representation letters and authorization letters (including with respect to the presence or absence of material
non-public
information
and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing) contemplated by the Debt Commitment Letter) that is not contingent upon the occurrence of the Closing or that would be effective
prior to the Effective Time, (3) neither the Company Board nor any of the Company Subsidiaries boards of directors (or equivalent bodies) shall be required to approve or adopt any Financing or agreements related thereto (or any
alternative financing) prior to the Effective Time (and no such directors that shall not be continuing directors shall be required to take such action), (4) neither the Company nor any of the Company Subsidiaries shall be required to execute or
deliver any agreements, certificates or instruments in connection with any Financing (or any alternative financing) (other than customary representation letters and authorization letters (including with respect to the presence or absence of material
non-public
information and the accuracy of the information contained in the disclosure and marketing materials related to the Debt Financing)) that is not contingent on the Effective Time, (5) neither the
Company nor any of the Company Subsidiaries shall be responsible for any adjustments to any pro forma financial information required to be provided in accordance with the Debt Commitment Letter, (6) unless it has received prior
reimbursement, neither the Company nor any of its Subsidiaries shall be required to pay any commitment or other similar fee or make any other payment (other than for reasonable
out-of-pocket
costs or expenses that are reimbursed by Parent as provided below in
Section 5.07(i)
) or incur any other liability (other than customary
representation letters and authorization letters (including with respect to the presence or absence of material
non-public
information and the accuracy of the information contained in the disclosure and
marketing materials related to the Debt Financing) contemplated by the Debt Commitment Letter) or provide or agree to provide any indemnity in connection with the Financing or any of the foregoing prior to the Effective Time and (7) nothing
contained in this
5.07(i)
or otherwise shall require the Company or any of its Subsidiaries, prior to the Closing, to be an issuer or other obligor with respect to the Debt Financing.
(g) The Company will use its reasonable best efforts, and will cause each of the Company Subsidiaries to use its respective reasonable best
efforts, to update any Required Financing Information provided to Parent and the Debt Financing Sources as may be necessary so that such Required Financing Information (i) is Compliant and (ii) meets the applicable requirements set forth
in the definition of Required Financing Information. For the avoidance of doubt, Parent may, to most effectively access the financing markets, require the cooperation of the Company and the Company Subsidiaries under this
Section
5.07
at any time, and from time to time and on multiple occasions, between the date hereof and the Closing Date;
provided
, that, for the avoidance of doubt, the Marketing Period shall not be applicable as to
each attempt to access the markets. The Company agrees to (i) file all reports on Form
10-K
and Form
10-Q
and, to the extent required to include financial
information pursuant to Item 9.01 thereof, Form
8-K
and (ii) use reasonable best efforts to file all other Forms
8-K,
in each case, required to be filed with the
SEC pursuant to the Exchange Act prior to the Closing Date in accordance with the time periods required by the Exchange Act. In addition, if, in connection with a marketing effort contemplated by the Debt Commitment Letter, Parent reasonably
requests the Company to file a Current Report on Form
8-K
pursuant to the Exchange Act that contains material
non-public
information with respect to the Company and the
Company Subsidiaries, which Parent reasonably determines (and the Company does not unreasonably object) to include in a customary offering document for the Debt Financing, then, unless the Company reasonably objects, the Company shall file such
Current Report on Form
8-K.
(h) The Company hereby consents to the use of its and the Company
Subsidiaries logos in connection with the Debt Financing so long as such logos are used solely in a manner that is not intended or reasonably likely to
A-40
harm, disparage or otherwise adversely affect the Company or any of the Company Subsidiaries or the reputation or goodwill of the Company or any of the Company Subsidiaries.
(i) Parent shall, promptly upon request by the Company, reimburse the Company for all documented and reasonable
out-of-pocket
costs and expenses incurred by the Company or any of the Company Subsidiaries in connection with such cooperation contemplated by this
Section
5.07
. Parent shall indemnify and hold harmless the Company, the Company Subsidiaries and the Company Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest,
awards, judgments and penalties suffered or incurred by them in connection with the Financing (including any action taken in accordance with this
Section
5.07
) and any information utilized in connection therewith (other
than historical information provided in writing by the Company or the Company Subsidiaries specifically for use in connection therewith), in each case, except to the extent any of the foregoing was suffered or incurred as a result of bad faith,
gross negligence, willful misconduct or material breach of this
Section
5.07
by the Company, any of the Company Subsidiaries or the Company Representatives.
(j) Each of Parent and Sub acknowledges and agrees that neither the obtaining of the Financing or any alternative financing is a condition to
the Closing, and reaffirms its obligation to consummate the Transactions in accordance with the terms of this Agreement irrespective and independently of the availability of the Financing or any alternative financing, subject to the applicable
conditions set forth in
Section
6.01
and
Section
6.02
.
Section
5.08
Treatment of Existing Notes
.
(a)
Parent and Sub will be permitted to commence and conduct one or more offers to purchase, including any Change of Control
Offer (as such term is defined in the applicable Indenture) and any tender offer, or any exchange offer, and to conduct any consent solicitations (each, a
Debt Offer
and collectively, the
Debt Offers
),
with respect to any or all of the outstanding aggregate principal amount of the Companys senior secured notes (the
Secured Notes
) and the Companys senior unsecured notes (the
Unsecured Notes
and,
together with the Secured Notes, the
Notes
) identified by Parent to the Company in writing prior to, on, or after the date hereof on terms that are acceptable to Parent. Parent shall not be permitted to commence any applicable
Debt Offer until Parent shall have provided the Company with the necessary offer to purchase, letter of transmittal or other related documents in connection with the Debt Offer (collectively, the
Debt Offer Documents
) a reasonable
period of time in advance of Parent or Sub commencing the applicable Debt Offer to allow the Company and its counsel to review and comment on the related Debt Offer Documents. Parent will reasonably consult with the Company regarding the timing and
commencement of any Debt Offer and any relevant tender or consent deadlines. The closing (or, in the case of consent solicitations, operativeness) of the Debt Offers shall be expressly conditioned on the occurrence of the Closing, and the parties
shall use their reasonable best efforts to cause the Debt Offers to close on the Closing Date;
provided
, that the consummation of a Debt Offer with respect to any series of Notes shall not be a condition to Closing. The Debt Offers shall be
conducted in compliance with any applicable provisions of the applicable Indenture and with applicable Law, including SEC rules and regulations, and the Company shall not be required to cooperate with respect to any Debt Offer that is not in
compliance with the applicable Indenture and applicable Laws. Parent hereby covenants and agrees to provide (or to cause to be provided) immediately available funds for the full payment at the Effective Time of all Notes properly tendered and not
withdrawn and any related consent payments to the extent required pursuant to the terms of any applicable Debt Offer. The Company shall, and shall cause the Company Subsidiaries and the Company Representatives to, in each case, use their reasonable
best efforts, at Parents sole expense as contemplated by clause (d) below, to provide all cooperation reasonably requested by Parent in connection with any Debt Offer. To the extent that the provisions of any applicable Law conflict with
this
Section
5.08
, Parent and the Company shall comply with the applicable Law and shall not be deemed to have breached their obligations under this Agreement by such compliance.
(b)
Subject to the receipt of any requisite consents, the Company shall execute a supplemental indenture to each of (i) that
certain Indenture, dated as of July 1, 2014, among the Company, the guarantors party thereto and
A-41
The Bank of New York Mellon Trust Company, N.A, as trustee (as in effect on the date hereof, the
Unsecured Indenture
), and (ii) that certain Indenture dated as of
June 17, 2016, among the Company, the guarantors party thereto and U.S. Bank National Association, as trustee (as in effect on the date hereof (the
Secured Indenture
) and together with the Unsecured Indenture, the
Indentures
) governing each series of Notes identified by Parent to the Company in writing prior to, on, or after the date hereof in accordance with the applicable Indenture, amending the terms and provisions of each such Indenture
as described in the Debt Offer Documents as reasonably requested by Parent, which supplemental indenture shall become operative no earlier than the Effective Time, and shall use reasonable best efforts to cause the trustee under each such Indenture
to enter into such supplemental indenture prior to or substantially simultaneously with the Closing as determined by Parent;
provided
,
however
, that in no event shall the Company or any Company Representatives have any obligation to
authorize, adopt or execute any amendments or other agreement that would become operative prior to the Effective Time. The Company shall, and shall cause the Company Subsidiaries and the Company Representatives to, in each case, use their reasonable
best efforts to provide all cooperation reasonably requested by Parent in connection with the execution of the supplemental indentures. If requested by Parent, the Company shall use its reasonable best efforts to cause its legal counsel to provide
all customary legal opinions required in connection with the transactions contemplated by this
Section
5.08
to the extent such legal opinion is required to be delivered prior to the Closing Date. Notwithstanding the
foregoing, in no event shall the Company or its legal counsel be required to give an opinion as to compliance of a Debt Offer with an applicable Law or, if applicable, the provisions of the applicable Indenture, if in the reasonable opinion of the
Companys legal counsel, the Debt Offer does not comply with such applicable Law or the provisions of the applicable Indenture, as the case may be, or to give an opinion with respect to financing by the Parent.
(c)
If requested by Parent in writing, in lieu of or in addition to Parent commencing or closing a Debt Offer for any series of Notes,
the Company shall use its reasonable best efforts, to the extent permitted by such series of Notes and the applicable Indenture, to (A) issue a notice of redemption for all of the outstanding aggregate principal amount of such series of Notes,
pursuant to the redemption provisions of the applicable Indenture, which notice of redemption shall either be issued substantially simultaneously with the Effective Time or be expressly conditioned on the occurrence of the Closing and (B) take
any other actions prior to, at or after the Effective Time reasonably requested by Parent to facilitate the redemption and satisfaction and discharge of such series of Notes pursuant to the redemption and the satisfaction and discharge provisions of
the applicable Indenture and the other provisions of such Indenture applicable thereto and the satisfaction and release of any Liens on the assets of the Company or the Company Subsidiaries arising in connection with such redemption and satisfaction
and discharge;
provided
, that prior to the Company being required under
clause (A)
above to issue any notice of redemption to be issued substantially simultaneously with the Effective Time, Parent shall have, or shall have caused
to be, deposited with the trustee under the applicable Indenture sufficient funds to effect such redemption and satisfaction and discharge. If a conditional notice of redemption is given, Parent shall ensure that at the Effective Time, so long as
the applicable conditions of such redemption are satisfied, the Company has all funds necessary in connection with any such redemption and satisfaction and discharge. The redemption and satisfaction and discharge of any series of Notes pursuant to
the preceding sentence are referred to collectively as the Discharge of such series of Notes. The Company shall, and shall cause the Company Subsidiaries and the Company Representatives to, in each case, use their reasonable best
efforts, at Parents sole expense as contemplated by clause (d) below, to provide all cooperation reasonably requested by Parent in connection with the Discharge of any series of Notes identified to the Company by Parent in writing at any
time.
(d)
Parent shall promptly, upon request by the Company, reimburse the Company for (A) all reasonable and documented
out-of-pocket
costs and expenses (including reasonable outside attorneys fees and expenses) incurred by the Company, any of the Company Subsidiaries or the Company
Representatives in connection with the Debt Offers or Discharge in respect of any series of Notes and (B) any
out-of-pocket
costs incurred by the Company, any of
the Company Subsidiaries or the Company Representatives to the trustee or its counsel pursuant to the applicable Indenture in connection with the Debt Offers or Discharge in respect of any series of Notes. Parent shall indemnify and hold harmless
the Company, the Company Subsidiaries and the Company Representatives from and against any and all liabilities, losses, damages, claims, costs, expenses, interest,
A-42
awards, judgments and penalties suffered or incurred by them in connection with any action taken by them in connection with this
Section
5.08
except to the extent
suffered or incurred as a result of the bad faith, gross negligence, willful misconduct or material breach of this
Section
5.08
by the Company, any of the Company Subsidiaries or the Company Representatives.
(e)
Notwithstanding anything to the contrary in this Agreement, between the date of this Agreement and the earlier of the Effective
Time and the termination of this Agreement in accordance with its terms, the Company shall not, and shall not permit any Company Subsidiary to (i) utilize all or any portion of the amount available under Section 4.07(a)(3) of either Indenture
(other than amounts thereunder not to exceed $5,000,000), (ii) utilize any of the following baskets (excepting amounts outstanding pursuant to such baskets as of the date hereof): (a) Section 4.07(b)(11), 4.09(b)(1) (other than borrowings under any
revolving credit facility of the Company in existence as of the date hereof and permitted under Section 5.01(h) of this Agreement), 4.09(b)(12)(b) (other than amounts thereunder not to exceed $5,000,000) and clause (18) of Permitted
Liens (other than Liens securing obligations not to exceed $5,000,000), in each case of each Indenture, or (iii) reclassify any Liens, Indebtedness or Investment (in each case, as defined in the Indentures), or any portion
thereof, incurred under any provision or clause of either Indenture on the date hereof to Section 4.07(a)(3), Section 4.07(b)(11), Section 4.09(b)(1), Section 4.09(b)(12)(b), clause (18) of Permitted Liens (as defined in the Indentures) or, in
the case of the Secured Indenture, as a ratio Lien permitted pursuant to clause (35) of Permitted Liens, or, in the case of the Unsecured Indenture, as a ratio Lien permitted pursuant to Section 4.12(2)(B) thereof.
Section
5.09
Public Announcements
. The initial press release issued by Parent and
the Company concerning this Agreement and the Transactions shall be a joint press release, the contents of which have received prior approval from both such parties, and thereafter Parent and the Company shall consult with each other before issuing
any press release or otherwise making any public statements with respect to the Transactions and shall not issue any such press release or make any such public statement prior to such consultation;
provided
, that the restrictions set forth in
this
Section
5.09
shall not apply to any press release, public statement or other announcement issued or made, or proposed to be issued or made, (a) in connection with a Competing Proposal or Change of Company
Recommendation, (b) as may be required by applicable Law or by obligations pursuant to any listing agreement with any national securities exchange or (c) that is consistent in all material respects with previous press releases, public
disclosures or public statements made by a party hereto in accordance with this
Section
5.09
, including investor conference calls, filings with the SEC, Q&As or other publicly disclosed documents, in each case under
this
clause
(c)
to the extent such disclosure is still accurate. Nothing in this
Section
5.09
shall limit the ability of the Company to make any internal announcements to its employees that are
consistent in all material respects with the prior public disclosures regarding the transactions contemplated by this Agreement. For the avoidance of doubt, any public filings providing notice to or seeking approval from any Governmental Entity made
pursuant to
Section
5.06
shall be governed by
Section
5.06
and not this
Section
5.09
.
Section
5.10
Directors
& Officers Indemnification and
Insurance
.
(a)
Indemnification
.
From and after the Effective Time, Parent shall, and shall cause the Surviving
Corporation to, to the fullest extent permitted by applicable Law, indemnify, defend and hold harmless each current or former director or officer of the Company or any of the Company Subsidiaries (each, an
Indemnified Party
and
collectively, the
Indemnified Parties
) against (i) all losses, expenses (including reasonable attorneys fees and expenses), judgments, fines, claims, damages or liabilities or, subject to the proviso of the next
succeeding sentence, amounts paid in settlement, arising out of actions or omissions occurring at or prior to the Effective Time (and whether asserted or claimed prior to, at or after the Effective Time) to the extent that they are based on or arise
out of the fact that such person is or was a director or officer of the Company or any of the Company Subsidiaries (the
Indemnified Liabilities
), and (ii) all Indemnified Liabilities to the extent they are based on or arise
out of or pertain to the Transactions, whether asserted or claimed prior to, at or after the Effective Time, and including any expenses incurred in enforcing such persons rights under this
Section
5.10
. In the event
of any such Indemnified Liability (whether or not asserted before the Effective Time), the Surviving Corporation shall pay the reasonable fees and expenses of counsel selected by the Indemnified Parties promptly
A-43
after statements therefor are received and otherwise advance to such Indemnified Party upon request, reimbursement of documented expenses reasonably incurred (
provided
that the person to
whom expenses are advanced provides an undertaking to repay such advance if it is determined by a final and
non-appealable
judgment of a court of competent jurisdiction that such person is not legally entitled
to indemnification under Law).
(b)
Insurance
.
The Company shall be permitted to, prior to the Effective Time, and if
the Company fails to do so, Parent shall cause the Surviving Corporation to, obtain and fully pay the premium for an insurance and indemnification policy that provides coverage for a period of six (6) years from and after the Effective Time for
events occurring prior to the Effective Time (the
D&O Insurance
) that is substantially equivalent to and in any event not less favorable in the aggregate to the intended beneficiaries thereof than the Companys existing
directors and officers liability insurance policy;
provided
,
however
, that in no event shall Parent, the Company or the Surviving Corporation be required to expend for such policy an amount in excess of six (6) times
the Maximum Premium. If the Company and the Surviving Corporation for any reason fail to obtain such tail insurance policy as of the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to,
continue to maintain in effect for a period of at least six (6) years from and after the Effective Time (and for so long thereafter as any claims brought before the end of such six (6) year period thereunder are being adjudicated) the
D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Companys existing policies as of the date of this Agreement, or the
Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, purchase comparable D&O Insurance for such
six-year
period (and for so long thereafter as any claims brought before the end
of such
six-year
period thereunder are being adjudicated) with terms, conditions, retentions and limits of liability that are at least as favorable as provided in the Companys existing policies as of the
date of this Agreement;
provided
,
however
, that in no event shall Parent, the Company or the Surviving Corporation be required to expend an annual aggregate premium for such insurance in excess of 250% times the annual aggregate
premium currently paid by the Company for such insurance (the
Maximum Premium
).
(c)
Successors
.
In the event the Surviving Corporation, Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation
or merger or (ii) transfers all or substantially all of its properties and assets to any person, then and in either such case, Parent shall, and shall cause the Surviving Corporation to, require such successors, assigns or transferees of the
Surviving Corporation or Parent to assume the obligations set forth in this
Section
5.10
.
(d)
Continuation
. For not less than six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to ensure that the certificate of incorporation and
by-laws
of the Surviving Corporation and the certificate of incorporation and
by-laws
(or other similar documents) of each Company Subsidiary shall contain provisions no
less favorable with respect to exculpation, indemnification and advancement of expenses for periods at or prior to the Effective Time than are currently set forth in the Company Charter, the Company By-laws or the equivalent organizational documents
of any Company Subsidiary, as applicable. The contractual indemnification rights, if any, in existence on the date of this Agreement with any of the directors, officers or employees of the Company or any Company Subsidiary shall be assumed by the
Surviving Corporation, without any further action, and shall continue in full force and effect in accordance with their terms following the Effective Time.
(e)
Benefit
. The provisions of this
Section
5.10
are intended to be for the benefit of, and shall be
enforceable by, each Indemnified Party, each Indemnified Partys heirs, executors or administrators and each Indemnified Partys representatives, shall be binding on all successors and assigns of Parent, the Company and the Surviving
Corporation and shall not be amended in a manner that is adverse to any Indemnified Parties (including their successors, assigns and heirs) without the consent of the Indemnified Party (including the successors, assigns and heirs) affected thereby.
A-44
(f)
Non-Exclusivity
. The provisions of
this
Section
5.10
are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise. Nothing in this Agreement, including this
Section
5.10
, is intended to, shall be construed to or shall release, waive or impair any rights to directors and officers insurance claims under any policy that is or has been in existence with respect to the
Company, any of the Company Subsidiaries or the Indemnified Parties, it being understood and agreed that the indemnification provided for in this
Section
5.10
is not prior to, or in substitution for, any such claims under
any such policies.
Section
5.11
Takeover Statutes
. The parties shall use all
reasonable efforts (a) to take all action necessary so that no Takeover Statute is or becomes applicable to restrict or prohibit the Transactions and (b) if any Takeover Statute is or becomes applicable to restrict or prohibit any of the
Transactions, to take all action necessary so that such Transaction may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize (to the greatest extent practicable) the effects
of such Takeover Statute on such Transaction.
Section
5.12
Employee Benefit
Matters
.
(a)
From and after the Effective Time through the period ending on December 31, 2017, Parent shall provide or
cause its Subsidiaries, including the Surviving Corporation, to provide (i) base salary and wages to each individual who is an employee of the Company or a Company Subsidiary immediately prior to the Effective Time (each, a
Company
Employee
) at a rate that is no less favorable than the rate of base salary or wages provided to such Company Employee immediately prior to the Effective Time, (ii) an annual bonus opportunity or commission opportunity, as applicable,
to each Company Employee that is not less favorable than the annual bonus opportunity or commission opportunity, as applicable, provided to such Company Employee immediately prior to the Effective Time, (iii) severance benefits to each Company
Employee that are no less favorable than the severance benefits provided under the severance policy or agreement in effect for the benefit of such Company Employee immediately prior to the Effective Time and listed in
Section
3.12
of the Company Disclosure Letter, and (iv) other compensation and benefits (including paid-time off, but excluding long-term incentive compensation opportunities and deferred compensation benefits) to each
Company Employee that are substantially comparable, in the aggregate, to the other compensation and benefits provided to such Company Employee under a Company Benefit Plan set forth in
Section
3.12(a)
of the Company
Disclosure Letter immediately prior to the Effective Time.
(b)
Without limiting the generality of
Section
5.12(a)
, from and after the Effective Time, Parent shall, or shall cause its Subsidiaries, including the Surviving Corporation, to, assume, honor and continue all of the Companys and the Company
Subsidiaries employment, severance, retention and termination plans, policies, programs, agreements and arrangements (including any change in control or severance agreement between the Company or any Company Subsidiary and any Company
Employee), in each case, in accordance with their terms as in effect immediately prior to the Effective Time, including with respect to any payments, benefits or rights arising as a result of the Transactions (either alone or in combination with any
other event)
For the avoidance of doubt, nothing in this Section 5.12(b) shall prevent or prohibit the Surviving Corporation from amending or terminating any of the foregoing in accordance with the terms thereof.
(c)
For all purposes (including for purposes of determining eligibility to participate, level of benefits, vesting, and benefit
accruals) under any employee benefit plan (as such term is defined in Section 3(3) of ERISA, but without regard to whether the applicable plan is subject to ERISA) and any other employee benefit plan, program, policy or arrangement
maintained by Parent or any of its Subsidiaries, including the Surviving Corporation, including any vacation, paid time off and severance plans, each Company Employees service with or otherwise credited by the Company or any Company Subsidiary
shall be treated as service with Parent or any of its Subsidiaries, including the Surviving Corporation;
provided
,
however
, that such service need not be recognized to the extent that such recognition would result in any duplication of
benefits.
A-45
(d)
Parent shall, or shall cause its Subsidiaries, including the Surviving
Corporation, to waive, or cause to be waived, any
pre-existing
condition limitations, exclusions, actively at work requirements and waiting periods under any welfare benefit plan maintained by Parent or any of
its Subsidiaries, including the Surviving Corporation, in which Company Employees (and their eligible dependents) will be eligible to participate from and after the Effective Time, except to the extent that such
pre-existing
condition limitations, exclusions,
actively-at-work
requirements and waiting periods would not have been satisfied
or waived under the comparable Company Benefit Plan immediately prior to the Effective Time. Parent shall, or shall cause its Subsidiaries, including the Surviving Corporation, to recognize, or cause to be recognized, the dollar amount of all
co-payments,
deductibles and similar expenses incurred by each Company Employee (and his or her eligible dependents) during the calendar year in which the Effective Time occurs for purposes of satisfying such
years deductible and
co-payment
limitations under the relevant welfare benefit plans in which such Company Employee (and dependents) will be eligible to participate from and after the Effective Time.
(e)
Notwithstanding the foregoing, nothing contained in this Agreement shall (i) be treated as an amendment of any Company
Benefit Plan, (ii) give any employee or former employee or any other individual associated therewith or any employee benefit plan or trustee thereof or any other third person any right to enforce the provisions of this
Section
5.12
or (iii) obligate Parent, the Surviving Corporation or any of their affiliates to (A) maintain any particular benefit plan, except in accordance with the terms of such plan or (B) retain the
employment of any particular employee.
Section
5.13
Expenses
. Except as
otherwise provided in this Agreement, whether or not the Merger is consummated, all costs and expenses incurred in connection with this Agreement and the Merger and the other Transactions shall be paid by the party incurring such expense;
provided
, that whether or not the Merger is consummated, any filing fees required in connection with the FCC Approvals or the State PSC Approvals shall be shared equally by Parent and the Company.
Section
5.14
Rule
16b-3
Matters
. Notwithstanding anything to the contrary contained in this Agreement, the Company shall be permitted to take such actions as may be reasonably necessary or advisable to ensure that the dispositions of equity securities of the Company
(including derivative securities) by any officer or director of the Company who is subject to Section 16 of the Exchange Act pursuant to the Transactions are exempt under
Rule 16b-3
promulgated under
the Exchange Act.
Section
5.15
Defense of Litigation
. The Company shall
control, and to the extent reasonably practicable, the Company shall consult with Parent and keep Parent reasonably informed with respect to any material developments regarding, the defense of any Proceeding brought by stockholders of the Company
against the Company or its directors or officers arising out of or relating to the Transactions after the date hereof (
Transaction Litigation
);
provided
,
however
, notwithstanding anything herein to the contrary, that
the Company shall not settle any such Proceeding without the prior written consent of Parent (which consent shall not be unreasonably withheld, conditioned or delayed);
provided
,
further
, that the Company shall give Parent the
opportunity to participate in the defense or settlement of any Transaction Litigation. The Company shall promptly notify Parent in writing of any Transaction Litigation that is brought or, to the Companys knowledge, threatened, and shall keep
Parent reasonably informed on a current basis with respect to the status and terms thereof.
Section
5.16
Deregistration; Delisting
. Prior to the Effective Time, the Company
will cooperate with Parent and use its 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 pursuant to applicable Law to cause (a) the
delisting of the Shares from the NASDAQ as promptly as practicable after the Effective Time; and (b) the deregistration of the Shares pursuant to the Exchange Act as promptly as practicable after such delisting.
Section
5.17
Notification
. The Company agrees that between the date of this
Agreement and the earlier of the Effective Time and the termination of this Agreement in accordance with its terms, the Company will give
A-46
prompt notice to Parent of any failure or reasonably anticipated failure by the Company to comply with or satisfy in any respect any representation, warranty, covenant, condition or agreement to
be complied with or satisfied by it pursuant to this Agreement, in each case if and only to the extent that such untruth, inaccuracy or failure would reasonably be expected to cause any of the conditions to the obligations of Parent and Sub to
consummate the Merger set forth in
Article
VI
to fail to be satisfied at the Closing (
provided
,
however
, that the Companys unintentional failure to give any notice under this
Section
5.17
shall not be deemed a breach for purposes of the condition set forth in
Section
6.02(b)
). No such notification will affect or be deemed to modify any representation or warranty of
the Company set forth in this Agreement or the conditions to the obligations of Parent and Sub to consummate the Merger or the remedies available to the parties under this Agreement. Parent shall, and shall cause each of its Subsidiaries to, and
shall use reasonable best efforts to cause its and their representatives to, hold all information provided or furnished pursuant to this
Section
5.17
confidential in accordance with the terms of the Confidentiality
Agreement.
ARTICLE VI
CONDITIONS TO THE MERGER
Section
6.01
Conditions to Obligations of Each Party to Effect the Merger
. The
respective obligations of each party to effect the Merger shall be subject to the satisfaction (or to the extent permitted by Law, mutual waiver by both the Company and Parent) at or prior to the Effective Time of each of the following conditions:
(a)
Company Stockholder Approval
. The Company shall have obtained the Company Stockholder Approval.
(b)
Antitrust Approval
. The waiting period (and any extensions thereof) applicable to the Merger under the HSR Act shall have
expired or been terminated and the approvals or clearances under applicable Antitrust Law by the Governmental Entities set forth on
Schedule
6.01(b)
shall have been obtained or any applicable waiting period thereunder shall
have been terminated or shall have expired.
(c)
Regulatory Approval
. The approval of the FCC required in connection with
the Transactions shall have been received.
(d)
No Injunction
. No Governmental Entity of competent jurisdiction shall have
issued, enacted, entered, promulgated or enforced any Law that is in effect and renders the consummation of the Merger illegal, or prohibits, enjoins or otherwise prevents the Merger.
Section
6.02
Conditions to the Obligations of Parent and Sub
.
(a)
Representations and Warranties
. (i) The representations and warranties of the Company in
Section
3.02(a)
and
Section
3.02(b)
shall be true and correct in all respects, as of the date hereof and as of the Closing Date as though made on the Closing Date, except to the extent such
representations and warranties expressly relate to another date (in which case such representations and warranties shall be true and correct in all respects on and as of such other date), other than failures to be true and correct which,
individually or in the aggregate, are a
de minimis
inaccuracy. (ii) The representations and warranties of the Company in
Section
3.01(a)
and
Section
3.01(b)
;
Section
3.03
;
Section
3.21
and
Section
3.23
shall be true and correct in all material respects as of the date hereof and as of the Closing Date as though made on the
Closing Date, except to the extent such representations and warranties expressly relate to another date (in which case such representations and warranties shall be true and correct in all material respects on and as of such other date).
(iii) The representations and warranties of the Company in
Section
3.09(b)
shall be true and correct in all respects as of the Closing Date as though made on the Closing Date. (iv) The representations and
warranties of the Company in this Agreement (other than those in
Section
3.01(a)
,
Section
3.01(b)
,
Section
3.02(a)
,
Section
3.02(b)
,
Section
3.03
,
Section
3.09(b)
,
Section
3.21
and
Section
3.23
), without regard to materiality or Company Material Adverse Effect qualifiers
contained within such representations and warranties, shall be true and correct as of the date
A-47
hereof and as of the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to another date (in which case such representations
and warranties shall be true and correct on and as of such other date), other than such failures to be true and correct that, individually and in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. Parent shall
have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect set forth in the foregoing
clauses (i)
to
(iv)
.
(b)
Performance of Obligations of the Company
.
The Company shall have performed or complied in all material respects with
the obligations required by this Agreement to be performed or complied with by it at or before the Closing Date, and Parent shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect.
(c)
Company Material Adverse Effect
. Since the date of this Agreement, there shall not have been any Company Material Adverse
Effect.
(d)
Approvals
. The approvals or clearances set forth on
Schedule 6.02(d)
shall have been obtained pursuant to
orders from the applicable Governmental Entities that are in full force and effect.
Section
6.03
Conditions to the Obligations of the Company
.
(a)
Representations and Warranties
. The representations and warranties of Parent and Sub in this Agreement shall be true and
correct in all material respects on the date hereof and on the Closing Date as though made on the Closing Date, except to the extent such representations and warranties expressly relate to another date (in which case such representations and
warranties shall be true and correct in all material respects on and as of such other date). The Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent to such effect.
(b)
Performance of Obligations of Parent and Sub
. Parent and Sub shall have performed or complied in all material respects with
the obligations required by this Agreement to be performed or complied with by them at or before the Closing Date, and the Company shall have received a certificate signed on behalf of Parent by an executive officer of Parent to such effect.
Section
6.04
Frustration of Closing Conditions
. Neither the Company nor Parent or
Sub may rely, either as a basis for not consummating the Merger or the other Transactions or terminating this Agreement and abandoning the Merger, on the failure of any condition set forth in
Section
6.01
,
Section
6.02
or
Section
6.03
, as the case may be, to be satisfied if such failure was caused by such partys material breach of any provision of this Agreement or such partys failure to
comply with its obligations hereunder contributes in any material respect to the failure of such condition to be satisfied.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section
7.01
Termination
. This Agreement may be terminated, in the case of
clauses
(a)
through
(c)
and
clauses (e)
and
(g)
below, at any time prior to the Effective Time, whether before or after receipt of the Company Stockholder Approval or, in the case of
clauses
(d)
and
(f)
below, at any time prior to receipt of the Company Stockholder Approval, as follows:
(a)
by mutual written consent of Parent and the Company;
(b)
by either Parent or the Company:
(i)
if the Merger is not consummated on or before November 9, 2017 (the
Outside Date
);
provided
,
however
, that (w) if all of the conditions to Closing, other than the conditions set forth in
Section
6.01(c)
or
A-48
Section 6.02(d)
, shall have been satisfied or shall be capable of being satisfied at such time, the Outside Date may be extended by either Parent or the Company from time to time by
written notice to the other party to the date that is thirty (30) days after the Outside Date (the
First Extended Outside Date
), which date shall thereafter be deemed to be the Outside Date, (x) if all of the conditions
to Closing, other than the conditions set forth in
Section
6.01(c)
or
Section 6.02(d)
, shall have been satisfied or shall be capable of being satisfied at the First Extended Outside Date, the Outside Date may be
extended by either Parent or the Company from time to time by written notice to the other party to a date that is thirty (30) days after the First Extended Outside Date (the
Second Extended Outside Date
), which date shall
thereafter be deemed to be the Outside Date, and (y) if all of the conditions to Closing, other than the conditions set forth in
Section
6.01(c)
or
Section 6.02(d)
, shall have been satisfied or shall be capable
of being satisfied at the Second Extended Outside Date, the Outside Date may be extended by either Parent or the Company from time to time by written notice to the other party to a date that is thirty (30) days after the Second Extended Outside
Date, which date shall thereafter be deemed to be the Outside Date and (z) in the event the Marketing Period has commenced but has not completed as of the then applicable Outside Date, such Outside Date may be extended (or further extended) by
Parent in its sole discretion by providing written notice thereof to the Company at least one (1) Business Day prior to such Outside Date until four (4) Business Days after the then-scheduled expiration date of the Marketing Period;
provided
,
further
, that the right to terminate this Agreement under this
Section
7.01(b)(i)
shall not be available to any party if the failure of the Merger to be consummated by the Outside Date was primarily
caused by (A) such partys material breach of any provision of this Agreement or (B) such partys failure to comply in any material respect with its obligations hereunder;
(ii)
if any Governmental Entity issues any decision, order, directive, writ, injunction, judgment or decree permanently enjoining or
otherwise permanently prohibiting the Merger and such decision, order, directive, writ, injunction, judgment or decree shall have become final and nonappealable;
provided
, that the right to terminate this Agreement under this
Section
7.01(b)(ii)
shall not be available to any party that has failed to use its reasonable best efforts to contest, resolve or lift, as applicable, such decision, order, directive, writ, injunction, judgment or decree;
provided
,
further
, that the right to terminate this Agreement under this
Section
7.01(b)(ii)
shall not be available to any party if such decision, order, directive, writ, injunction, judgment or decree was
primarily caused by (A) such partys material breach of any provision of this Agreement or (B) such partys failure to comply in any material respect with its obligations hereunder; or
(iii)
if, upon a vote at a duly held meeting to obtain the Company Stockholder Approval at the Company Stockholder Meeting (including
any postponement or adjournment thereof), the Company Stockholder Approval is not obtained;
(c)
by Parent, if the Company breaches
or fails to perform or comply with its representations, warranties or covenants contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in
Section
6.02(a)
or
Section
6.02(b)
and (ii) cannot be or has not been cured within thirty (30) days after the giving of written notice to the Company of such breach (
provided
that
Parent is not then in breach of any representation, warranty or covenant contained in this Agreement that would give rise to the failure of a condition set forth in
Section
6.03(a)
or
Section
6.03(b)
);
(d)
by Parent, if the Company Board or any committee thereof makes a Change of Company
Recommendation;
(e)
by the Company, if Parent breaches or fails to perform or comply with its representations, warranties or
covenants contained in this Agreement, which breach or failure to perform (i) would give rise to the failure of a condition set forth in
Section
6.03(a)
or
Section
6.03(b)
and (ii) cannot
be or has not been cured within thirty (30) days after the giving of written notice to Parent of such breach (
provided
that the Company is not then in breach of any representation, warranty or covenant in this Agreement that would give
rise to the failure of a condition set forth in
Section
6.02(a)
or
Section
6.02(b)
);
A-49
(f)
by the Company, if (A) the Company has complied with its representations,
warranties or covenants contained in
Section
5.03
and
Section
5.04(c)
(other than any failure to comply that is
de minimis
), (B) the Company Board authorizes the Company to enter into an
Acquisition Agreement with respect to a Superior Proposal in accordance with
Section
5.03
, (C) substantially concurrently with the termination of this Agreement, the Company enters into an Acquisition Agreement
providing for such Superior Proposal and (D) prior to or concurrently with such termination, the Company pays to Parent in immediately available funds the Company Termination Fee;
(g)
by the Company, if (i) all of the conditions in
Section
6.01
and
Section
6.02
(other than those conditions that by their nature are to be satisfied at the Closing and that would be satisfied if there were a Closing) have been satisfied or waived, (ii) the Company has notified Parent
in writing at least three (3) Business Days prior to such termination that the Company is irrevocably ready, willing and able to consummate the Closing, and (iii) Parent and Sub have failed to consummate the Closing within three (3)
Business Days after the date by which the Closing is required to have occurred pursuant to
Section
1.02
.
Section
7.02
Effect of Termination
.
(a)
Notwithstanding anything to the contrary in this Agreement, in the event of the valid termination of this Agreement by either the
Company or Parent as provided in
Section
7.01
, this Agreement shall forthwith become void and there shall be no liability or obligation on the part of any party or any Related Party, except, (i) as provided
in
Section 5.07(i)
,
Section 5.08(d)
,
Section
5.13
, this
Section
7.02
and
Article
VIII
, each of which shall survive the termination of this Agreement, in
each case, in accordance with their respective terms and conditions and (ii) the Guarantee and the Confidentiality Agreement shall each survive the termination of this Agreement, in each case, in accordance with its respective terms;
provided
, that, subject in all respects to this
Section
7.02
,
Section
8.10
and
Section
8.11
, nothing in this Agreement will relieve (x) any party from any
liability for damages resulting from such partys fraud prior to the valid termination of this Agreement or (y) the Company from any liability for damages resulting from the Companys willful breach of any of its representations,
warranties, covenants or agreements set forth in this Agreement prior to the valid termination of this Agreement;
provided
,
however
, that in no event will the Parent Related Parties have any liability for monetary damages (including
damages for fraud, monetary damages in lieu of specific performance or otherwise) in the aggregate in excess of the Parent Termination Fee and subject in all respects to the limitations set forth in
Section 7.02(i)
;
provided
,
further
, that the parties acknowledge and agree that the immediately preceding proviso shall not apply to claims, if any, against any person that is party to, and solely pursuant to the terms and conditions of, the Confidentiality Agreement.
(b)
The Company shall pay to Parent (or its designee) the Company Termination Fee if: (i) the Company validly terminates this
Agreement pursuant to
Section
7.01(f)
, (ii) Parent validly terminates this Agreement pursuant to
Section
7.01(d)
, (iii) either party validly terminates this Agreement at such time as Parent
could have terminated this Agreement pursuant to
Section
7.01(d)
or (iv) (A) any person makes a Competing Proposal (substituting 50% for each reference in the definition of Competing
Proposal to 20%) (a
Qualifying Transaction
) that was publicly disclosed or otherwise made publicly known to the Companys stockholders before the Company Stockholder Meeting and not publicly withdrawn at
least one (1) Business Day prior to the date of the Company Stockholder Meeting, and thereafter this Agreement is validly terminated pursuant to
Section 7.01(b)(i)
(if the Company Stockholder Approval has not theretofore been obtained),
Section
7.01(b)(iii)
or
Section 7.01(c
) (with respect to a termination because the Company has breached or failed to perform or comply with its covenants contained in this Agreement) and (B) within twelve
(12) months of such termination the Company enters into a definitive agreement to consummate a Qualifying Transaction, and a Qualifying Transaction is subsequently consummated (which need not be the same Qualifying Transaction that was made,
disclosed or publicly known prior to the termination hereof). Any fee due under this
Section
7.02(b)
shall be paid by wire transfer to the account specified in writing by Parent of
same-day
funds on the date of termination pursuant to
clause
(i)
above; within two (2) Business Days after termination pursuant to
clause
(ii)
or
(iii)
above; or within two (2) Business Days after consummation of such transaction in the case of termination pursuant to
clause
(iv)
above.
A-50
(c)
Parent shall pay to the Company the Parent Termination Fee if the Company validly
terminates this Agreement pursuant to
Section
7.01(g)
. Any fee due under this
Section
7.02(c)
shall be paid by wire transfer to the account specified in writing by the Company of
same-day
funds within two (2) Business Days after such termination.
(d) If the Company fails to
promptly pay any amount due pursuant to
Section
7.02(b)
or Parent fails to promptly pay any amounts due pursuant to
Section
7.02(c)
, then the
non-paying
party will pay or cause to be paid to the other party (or its designee) the amount due, together with interest accruing daily on such amount at an annual rate equal to 8.0% from the date on which such payment was owed.
(e) Each of the Company, Parent and Sub acknowledges that (i) the agreements contained in this
Section
7.02
are
an integral part of the Transactions and (ii) without these agreements, Parent, Sub and the Company would not enter into this Agreement. The Parties acknowledge and hereby agree that each of the Parent Termination Fee and the Company
Termination Fee, as applicable, if, as and when required pursuant to this
Section
7.02
, shall not constitute a penalty but will be liquidated damages, in a reasonable amount that will compensate the party receiving such
amount in the circumstances in which it is payable for the efforts and resources expended and opportunities foregone while negotiating this Agreement and in reliance on this Agreement and on the expectation of the consummation of the Merger, which
amount would otherwise be impossible to calculate with precision. In no event shall the Company be required to pay to Parent (or its designee) more than one Company Termination Fee pursuant to
Section
7.02(b)
. In no event
shall Parent be required to pay to the Company more than one Parent Termination Fee pursuant to
Section
7.02(c)
.
(f) Notwithstanding anything to the contrary in this Agreement or any Transaction Document or any other agreement referenced herein or therein
or otherwise, but subject in all respects to this
Section
7.02
,
Section
8.10
and
Section
8.11
(including, in each case, the limitations set forth therein), if Parent or
Sub fails to effect the Closing when required by
Section
1.02
for any or no reason or otherwise breaches this Agreement or any Transaction Document (whether such breach is intentional, unintentional, willful or otherwise)
or fails to perform hereunder or thereunder or fails to perform any obligation under Law (in each case, whether such failure is intentional, unintentional, willful or otherwise), then the Companys right to (A) a decree or order of
specific performance or any injunction or injunctions or other equitable relief if and to the extent permitted by
Section
8.10
, (B) terminate the Agreement pursuant to
Section
7.01
and seek
monetary damages solely on the basis of fraud by Parent and (C) terminate the Agreement pursuant to
Section
7.01(g)
and if, as and when required pursuant to
Section 7.02(c)
, receive payment of the Parent
Termination Fee, shall, together with, if applicable, the rights of the Company to expense reimbursement or indemnification under
Section
5.07(i)
,
Section
5.08(d)
and
Section
5.13
and the rights of the Company under
Section
7.02(d)
, be the sole and exclusive remedies (whether at Law, in equity, in Contract, in tort or otherwise) of the Company Related Parties,
Company Representatives and any other person against the Parent Related Parties for any breach, liability, cost, expense, obligation, loss or damage suffered as a result thereof or in connection therewith or related thereto. Notwithstanding anything
to the contrary, under no circumstances can the Company receive both (i) an award of monetary damages, on the one hand, and (ii) the Parent Termination Fee, on the other hand.
(g) Except (A) as provided in
Section
7.02(f)
or (B) claims, if any, against any person that is party to,
and solely pursuant to the terms and conditions of, the Confidentiality Agreement, no Parent Related Party will have any liability or obligation to the Company Related Parties, the Company Representatives or any other person, including any multiple,
consequential, indirect, special, statutory, exemplary or punitive damages, relating to or arising out of this Agreement or any other Transaction Document or any documents or certificates referenced herein or therein or the transactions contemplated
hereby or thereby or any breach of any representation, warranty or covenant contained herein or therein, or the failure of such transactions to be consummated, or in respect of any other Contract, document or theory of Law or equity or in respect of
any representations made or alleged to be made in connection herewith or therewith, whether in equity or at Law, in Contract, in tort or otherwise. The Company acknowledges and agrees that none of the Financing Sources nor any of their former,
current and future equity holders, controlling persons, directors, officers, employees, agents, attorneys, affiliates,
A-51
members, managers, general or limited partners, stockholders or assignees shall have any liability or obligation to the Company Related Parties, the Company Representatives or any other person
arising out of their breach or failure to perform (whether willfully, intentionally, unintentionally or otherwise) any of their obligations under the Financing Commitments. Without limiting the foregoing, upon payment of the Parent Termination
Fee, if, as and when required pursuant to
Section
7.02(c)
and the amounts, if any, as and when due, pursuant to
Section
5.07(i)
,
Section
5.08(d)
,
Section
5.13
and
Section
7.02(d),
no Parent Related Party shall have any further liability or obligation to the Company Related Parties, the Company Representatives or any other person, including
any multiple, consequential, indirect, special, statutory, exemplary or punitive damages, relating to or arising out of this Agreement or any other Transaction Document or any documents referenced herein or therein or the transactions contemplated
hereby or thereby or in respect of any representation, warranty or covenant contained herein or therein, or the failure of such transactions to be consummated, or in respect of any other Contract, document or theory of Law or equity or in respect of
any representations made or alleged to be made in connection herewith or therewith, whether in equity or at Law, in Contract, in tort or otherwise.
(h) Notwithstanding anything to the contrary in this Agreement or any other Transaction Document or any other agreement referenced herein or
therein or otherwise, subject to
Section
8.10
, the maximum aggregate liability of the Parent Related Parties under the Transaction Documents or otherwise collectively (including monetary damages for fraud or breach, whether
willful, intentional, unintentional or otherwise, or monetary damages in lieu of specific performance), or in connection with the failure of the transactions contemplated hereby or thereby (including the Financing) to be consummated, or in respect
of any representation made or alleged to have been made in connection herewith or therewith, whether in equity or at Law, in Contract, in tort or otherwise, together with any payment of the Parent Termination Fee and any other payment in connection
with any Transaction Document or otherwise, shall not exceed under any circumstances an amount equal to the sum of (i) the Parent Termination Fee, if any, due and owing to the Company pursuant to
Section
7.02(c)
,
plus
(ii) the amounts, if any, due and owing to the Company pursuant to
Section
5.07(i)
,
Section
5.08(d)
,
Section
5.13
and
Section
7.02(d)
;
provided
, that (A) in no event shall the aggregate amount of Parents obligations described in
clause (i)
of this
Section
7.02(h)
together with the
aggregate amount of Parents obligations described in
clause (x)
of the first proviso in
Section
7.02(a)
exceed the amount of the Parent Termination Fee and (B) in no event shall the aggregate amount
of Parents obligations described in
clause (ii)
of this
Section
7.02(h)
exceed $1,000,000, and in no event shall the Company Related Parties and the Company Representatives seek, directly or indirectly, to
recover against the Parent Related Parties, or compel payment by the Parent Related Parties of, any damages or other payments whatsoever (including multiple, consequential, indirect, special, statutory, exemplary or punitive damages) in excess of
the Parent Termination Fee or any of the foregoing limitations (as applicable);
provided
,
further
, that the parties acknowledge and agree that the foregoing shall not apply to claims, if any, against any person that is party to, and
solely pursuant to the terms and conditions of, the Confidentiality Agreement.
Section
7.03
Amendment
. Subject to
Section
5.10(e)
,
this Agreement may be amended by the parties at any time before or after receipt of the Company Stockholder Approval;
provided
,
however
, that (a) after receipt of the Company Stockholder Approval, there shall be made no amendment
that by Law requires further approval by the stockholders of the Company without the further approval of such stockholders and (b) no amendment shall be made to this Agreement after the Effective Time. Except as required by Law, no amendment of
this Agreement by the Company shall require the approval of the stockholders of the Company. This Agreement may not be amended, except by an instrument in writing signed by each of the parties.
Section
7.04
Waiver
. At any time prior to the Effective Time, Parent and Sub, on
the one hand, and the Company, on the other hand, may (a) extend the time for the performance of any of the obligations or other acts of the other, (b) waive any breach or inaccuracy of the representations and warranties of the other
contained in this Agreement or in any document delivered pursuant hereto and (c) waive compliance by the other with any of the covenants or conditions contained in this Agreement;
provided
,
however
, that (i) after receipt of
the Company Stockholder Approval, there shall be made no waiver that by Law requires further approval by the stockholders of the Company without the further approval of such stockholders and (ii) no waiver shall be made under this
A-52
Agreement after the Effective Time. Except as required by Law, no extension or waiver by the Company shall require the approval of the stockholders of the Company. Any such extension or waiver
shall be valid only if set forth in an instrument in writing signed by the party or parties to be bound thereby, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
ARTICLE VIII
GENERAL PROVISIONS
Section
8.01
Non-Survival
of Representations and Warranties
. None of the representations and warranties contained in this Agreement or in any instrument delivered pursuant to
this Agreement (other than the Guarantee) shall survive the Effective Time. Except for any covenant or agreement that by its terms contemplates performance after the Effective Time, none of the covenants and agreements of the parties contained in
this Agreement shall survive the Effective Time.
Section
8.02
Notices
. All
notices or other communications required or permitted hereunder shall be in writing and shall be deemed to have been duly given (a) when delivered if delivered in person or when sent if sent by facsimile transmission or email (
provided
that telephonic confirmation of facsimile or e-mail transmission is obtained), (b) on the fifth (5th) Business Day after dispatch by registered or certified mail or (c) on the next Business Day if transmitted by national overnight
courier, in each case as follows (or at such other address for a party as shall be specified by like notice):
If to Parent or Sub:
Mount Olympus Holdings, Inc.
c/o
Apollo Management VIII, L.P.
9 West 57
th
Street
Facsimile: (646)
607-0546
Attention: Matthew Nord
Robert Kalsow-Ramos
with a copy to (which shall not constitute notice):
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York,
New York 10019
Telephone:
(212) 403-1000
Fax:
(212) 403-2000
Attention: Andrew J. Nussbaum and Karessa L. Cain
Email: AJNussbaum@wlrk.com and KLCain@wlrk.com
If to the Company:
West
Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
Attn:
David C. Mussman
Fax: (402)
963-1211
Email: DCMussman@West.com
A-53
with copies to (which shall not constitute notice):
Sidley Austin LLP
One South
Dearborn Street
Chicago, Illinois 60603
Telephone:
(312) 853-7000
Fax:
(312) 853-7036
Attention: Paul L. Choi
Email:
pchoi@sidley.com
Section
8.03
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 Transactions 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 shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the Transactions are fulfilled to the extent possible.
Section
8.04
Entire Agreement
. This Agreement (together with the Annexes,
Exhibits, Company Disclosure Letter, Parent Disclosure Letter and the other documents delivered pursuant hereto), the Guarantee, the Equity Commitment Letter, the Voting Agreements and the Confidentiality Agreement constitute the entire agreement of
the parties and supersede all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter of this Agreement;
provided
,
however
, that in the event of any inconsistency
between the Confidentiality Agreement and the terms of this Agreement, the terms of this Agreement shall prevail.
Section
8.05
Assignment
. Neither this Agreement nor any of the rights, interests or obligations under this Agreement shall be assigned or transferred, in whole or in part, by operation of Law or otherwise by any of
the parties without the prior written consent of the other parties, except that Parent and Sub will have the right to assign all or any portion of their respective rights and obligations pursuant to this Agreement (a) to any of their respective
affiliates; or (b) to any Debt Financing Source pursuant to the terms of the Debt Financing for purposes of creating a security interest herein or otherwise assigning as collateral in respect of the Debt Financing. Any assignment or transfer in
violation of the preceding sentence shall be void. No assignment by any party hereto will relieve such party of any of its obligations hereunder.
Section
8.06
Parties in Interest
. Except for
(a)
Article
II
, which, after the Closing, shall be for the benefit of any person entitled to payment thereunder, (b)
Section
5.10
, which, after the Closing, shall be for the benefit of
each Indemnified Party, such Indemnified Partys heirs, executors or administrators and each Indemnified Partys representatives, and (c) the right of the holders of Shares to pursue claims for damages (including damages based on the
loss of the economic benefits of the Merger, including the loss of the premium offered to such stockholders) and other relief, including equitable relief, for a breach by Parent or Sub of its obligations under this Agreement, each of whom shall be
an express third-party beneficiary of this Agreement, Parent, Sub and the Company hereby agree that their respective representations, warranties and covenants set forth in this Agreement are solely for the benefit of the other parties, in accordance
with and subject to the terms of this Agreement, and this Agreement is not intended to, and does not, confer upon any person other than the parties any rights or remedies hereunder, including the right to rely upon the representations and warranties
set forth in this Agreement;
provided
, that (i) the persons named in
clauses
(a)
and
(b)
of this sentence shall be entitled to enforce their rights under this Agreement and (ii) the rights
granted pursuant to
clause
(c)
of this sentence shall be enforceable on behalf of the holders of Shares only by the Company, in its sole and absolute discretion, and any amounts received by the Company in connection
therewith may be retained by the Company. The parties further agree that the rights of third-party beneficiaries under
clauses
(a)
and
(b)
of the preceding sentence shall not arise, unless and until the
Effective Time occurs. The representations and warranties in this Agreement are the
A-54
product of negotiations among the parties and are for the sole benefit of the parties. Any inaccuracies in such representations and warranties may be subject to waiver by the parties in
accordance with
Section
7.04
without notice or liability to any other person. In some instances, the representations and warranties in this Agreement may represent an allocation among the parties of risks associated with
particular matters regardless of the knowledge of any of the parties. Consequently, persons other than the parties 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. Notwithstanding the foregoing,
Section
7.02
,
Section
8.08
,
Section
8.11
and this
Section
8.06
will inure to the benefit of the Debt Financing Sources and their successors and assigns, each of whom are intended to be third-party beneficiaries thereof (it being understood and agreed that the foregoing provisions may not be amended in a manner
adverse to the Debt Financing Sources in any material respect without their prior written consent).
Section
8.07
Mutual Drafting; Interpretation; Headings
. Each party hereto has
participated in the drafting of this Agreement, which each party acknowledges is the result of extensive negotiations between the parties. If an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if
drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision. For purposes of this Agreement, whenever the context requires: (a) the singular
number shall include the plural, and vice versa; (b) the masculine gender shall include the feminine and neuter genders; (c) the feminine gender shall include the masculine and neuter genders; and (d) the neuter gender shall include
masculine and feminine genders. As used in this Agreement, the words include and including, and words of similar meaning, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed by the words
without limitation. Except as otherwise indicated, all references in this Agreement to Sections, Annexes and Exhibits are intended to refer to Sections of this Agreement and the Annexes and Exhibits to
this Agreement. All references in this Agreement to $ are intended to refer to U.S. dollars. The term or shall not be deemed to be exclusive. The words hereof, herein and hereunder and
words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement. In this Agreement, references to as of the date hereof, as of the date of this
Agreement or words of similar import shall be deemed to mean as of immediately prior to the execution and delivery of this Agreement. The headings contained in this Agreement are for reference purposes only and shall not affect in
any way the meaning or interpretation of this Agreement. Notwithstanding anything in this Agreement to the contrary, the parties hereto agree that the Financing is the responsibility of Parent and Sub and not the Company or any Company Subsidiary
and that (i) the Company makes no representations or warranties relating to the Financing (including whether the Company has authorized the Financing or whether any of the transactions contemplated by the Financing conflict with or violate any
obligation of the Company or any Company Subsidiary or Contract to which the Company or any Company Subsidiary is a party), (ii) except for
Section 5.07(f)
and
(g)
and
Sections 5.08(a)
,
(b)
and
(c)
, none
of the covenants of the Company in this Agreement require the Company to take any action relating to the Financing and (iii) for purposes of the representations and warranties and covenants and obligations of the Company hereunder, the
Transactions shall not include the Financing.
Section
8.08
Governing Law;
Consent to Jurisdiction; Waiver of Trial by Jury
.
(a)
This Agreement shall be governed by, and construed in accordance with,
the Laws of the State of Delaware, without giving effect to the principles of conflicts of Law thereof.
(b)
Each of the parties
irrevocably agrees that any legal Proceeding arising out of or relating to this Agreement brought by any other party or its successors or assigns shall be brought and determined in the Delaware Court of Chancery and any state appellate court
therefrom within the State of Delaware (unless the Delaware Court of Chancery shall decline to accept jurisdiction over a particular matter, in which case, in any Delaware state or federal court within the State of Delaware), and each of the parties
hereby irrevocably submits to the exclusive jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such Proceeding arising out of or relating to this Agreement or the
A-55
Transactions. Each of the parties agrees not to commence any Proceeding relating thereto, except in the courts described above in Delaware, other than actions in any court of competent
jurisdiction to enforce any judgment, decree or award rendered by any such court in Delaware as described in this Agreement. Each of the parties further agrees that notice as provided in this Agreement shall constitute sufficient service of process,
and the parties further waive any argument that such service is insufficient. Each of the parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any Proceeding
arising out of or relating to this Agreement or the Transactions, (i) any claim that it is not personally subject to the jurisdiction of the courts in Delaware as described in this Agreement for any reason, (ii) that it or its property is
exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise)
and (iii) that (A) the Proceeding in any such court is brought in an inconvenient forum, (B) the venue of such Proceeding is improper or (C) this Agreement, or the subject matter of this Agreement, may not be enforced in or by
such courts.
(c)
Notwithstanding anything in this Agreement to the contrary, each of the parties acknowledges and irrevocably
agrees (i) that any legal Proceeding, whether at law or in equity, whether in contract or in tort or otherwise, involving the Debt Financing Sources arising out of, or relating to, the Transactions, the Debt Financing, the Debt Commitment
Letter, or the performance of services thereunder or related will be subject to the exclusive jurisdiction of any state or federal court sitting in the State of New York in the borough of Manhattan and any appellate court thereof, and each party
hereto submits for itself and its property with respect to any such legal Proceeding to the exclusive jurisdiction of such court; (ii) not to bring or permit any of their affiliates to bring or support anyone else in bringing any such legal
Proceeding in any other court; (iii) that service of process, summons, notice or document by registered mail addressed to them at their respective addresses provided in the Debt Commitment Letter will be effective service of process against
them for any such legal Proceeding brought in any such court; (iv) to waive and hereby waive, to the fullest extent permitted by applicable Law, any objection which any of them may now or hereafter have to the laying of venue of, and the
defense of an inconvenient forum to the maintenance of, any such legal Proceeding in any such court; and (v) that any such legal Proceeding will be governed and construed in accordance with the Laws of the State of New York.
(d)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND
DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OF THE TRANSACTIONS
(INCLUDING ANY SUCH LITIGATION RELATING TO THE DEBT FINANCING OR INVOLVING THE DEBT FINANCING SOURCES). EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR
OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THE FOREGOING WAIVER, (III) IT MAKES THE FOREGOING WAIVER VOLUNTARILY,
AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
Section
8.08(d)
.
Section
8.09
Counterparts
. This Agreement may be executed in two or more
counterparts, and by the different parties in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. The exchange of a fully executed
Agreement (in counterparts or otherwise) by facsimile or by electronic delivery in pdf format shall be sufficient to bind the parties to the terms and conditions of this Agreement.
A-56
Section
8.10
Specific
Performance
.
(a) The parties agree that irreparable damage would occur if any of the provisions of this Agreement were not performed,
or were threatened to be not performed, in accordance with their specific terms or were otherwise breached. Accordingly, the parties acknowledge and agree that, subject to this
Section
8.10
, the parties shall be entitled to
an injunction, specific performance and other equitable relief to prevent breaches or threatened breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement, this being in addition to any other remedy to which
they are entitled at law or in equity.
(b) Except as otherwise provided in this Agreement, and for the avoidance of doubt, subject in all
respects to this
Section
8.10
,
Section
7.02
and
Section
8.11
(and, in each case, the limitations set forth herein or therein), any and all remedies expressly conferred
upon a party will be deemed cumulative with and not exclusive of any other remedy conferred by this Agreement or by applicable Law on such party, and the exercise by a party of any one remedy will not preclude the exercise of any other remedy.
Notwithstanding anything else to the contrary in any Transaction Document or otherwise, for the avoidance of doubt, while the Company may, subject in all respects to
Section
7.02
, this
Section
8.10
and
Section
8.11
, concurrently seek (i) specific performance or other equitable relief, subject in all respects to this
Section
8.10
and (ii) payment of monetary damages pursuant to
clause (x)
of the first proviso in
Section
7.02(a)
or the Parent Termination Fee, if, as and when required pursuant to
Section
7.02(c)
, under no circumstances shall the Company,
directly or indirectly, be permitted or entitled to receive (1) both (A) a grant of specific performance to cause the Equity Financing to be funded (whether under this Agreement or the Equity Financing Commitment) or other equitable relief and
(B) payment of any monetary damages whatsoever and/or the payment of the Parent Termination Fee, or (2) both (A) payment of any monetary damages whatsoever and (B) payment of the Parent Termination Fee. Each of the parties agrees that
no party shall require the other to post any bond or other security as a condition to institute any Proceeding for specific performance under this
Section
8.10
.
(c)
Specific Performance in Respect of Financing
. Notwithstanding anything to the contrary in this Agreement or any other Transaction
Document or otherwise to the contrary, it is acknowledged and agreed that Parent has an obligation hereunder to cause the Equity Financing to be funded, including by exercising its rights under the Equity Commitment Letter, and such obligation of
Parent will be subject to the requirements set forth in clauses (A) and (B) below, and the right of the Company to specific performance in connection with enforcing (x) such obligation of Parent (whether under this Agreement or the Equity
Commitment Letter) and (y) the obligation of Parent to consummate the Merger, will be subject to the requirements that (A) all of the conditions set forth in
Section
6.01
and
Section
6.02
have been and continue to be satisfied or waived (other than those conditions that by their terms are to be satisfied at the Closing, each of which is capable of being satisfied at the Closing); (B) the Debt Financing has been funded or will be
funded in full at the Closing if the Equity Financing is funded at the Closing; (C) Parent and Sub fail to consummate the Merger on the date required pursuant to
Section
1.02
; and (D) the Company has irrevocably
confirmed in a written notice to Parent that if specific performance is granted and the Equity Financing and Debt Financing are funded, then it would take such actions that are required of it by this Agreement to cause the Closing to occur (and the
Company has not revoked, withdrawn, modified or conditioned such irrevocable confirmation), and Parent and Sub fail to complete the Closing within three (3) Business Days after delivery of the Companys irrevocable written confirmation. In
no event will the Company be entitled to enforce or seek to enforce specifically Parents obligation to cause the Equity Financing to be funded or to complete the Merger unless the Debt Financing has been funded in full or will be funded in
full at the Closing if the Equity Financing is funded at the Closing.
Section
8.11
Non-Recourse
.
(a)
Each party agrees, on behalf of itself and its Related
Parties, that all Proceedings, claims, obligations, liabilities or causes of action (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate,
limited partnership or limited liability company veil or any other theory or doctrine, including alter ego or otherwise) that may be based upon, in respect of, arise under, out or by reason of, be connected with, or relate to: (A) this
Agreement, any other
A-57
Transaction Document or any other agreement referenced herein or therein or the transactions contemplated hereunder or thereunder (including the Financing), (B) the negotiation, execution or
performance of this Agreement, any other Transaction Document or any other agreement referenced herein or therein (including any representation or warranty made in, in connection with, or as an inducement to, this Agreement, any other Transaction
Document or such other agreement), (C) any breach or violation of this Agreement, any other Transaction Document or any other agreement referenced herein or therein and (D) any failure of the transactions contemplated hereunder or under any
Transaction Document or any other agreement referenced herein or therein (including the Financing) to be consummated, in each case, may be made only against (and are those solely of) the persons that are expressly identified as parties to this
Agreement or the applicable Transaction Document and, in accordance with, and subject to the terms and conditions of this Agreement and the applicable Transaction Document. In furtherance and not in limitation of the foregoing, and
notwithstanding anything contained in this Agreement, any other Transaction Document or any other document or certificate referenced herein or therein or otherwise to the contrary, each party hereto covenants, agrees and acknowledges, on behalf of
itself and its respective Related Parties, that no recourse under this Agreement, any other Transaction Document or any other document or certificate referenced herein or therein or in connection with any transactions contemplated hereby or thereby
(including the Financing) shall be sought or had against any other person, including any Parent Related Party and any Company Related Party, and no other person, including any Parent Related Party and any Company Related Party, shall have any
liabilities or obligations (whether in Contract or in tort, in Law or in equity or otherwise, or granted by statute or otherwise, whether by or through attempted piercing of the corporate, limited partnership or limited liability company veil or any
other theory or doctrine, including alter ego or otherwise) for any claims, causes of action, obligations or liabilities arising under, out of, in connection with or related to the items in the immediately preceding
clauses (A)
through
(D)
, it being expressly agreed and acknowledged that no personal liability or losses whatsoever shall attach to, be imposed on or otherwise be incurred by any of the aforementioned, as such, arising under, out of, in connection with or
related to the items in the immediately preceding
clauses (A)
through
(D)
, in each case, except for claims that (1) the Company, Parent or Sub, as applicable, may assert (subject, with respect to the following
clauses
(ii)
and
(iii)
, in all respects to the limitations set forth in
Section
7.02
,
Section
8.10
and this
Section
8.11
): (i) against any person that is party to
the Confidentiality Agreement under, and subject to the terms and conditions of, the Confidentiality Agreement, (ii) against each Guarantor under, and subject to the terms and conditions of, the Guarantee, (iii) against the Equity
Financing Sources for specific performance of the obligation of the Equity Financing Sources to fund their committed portions of the Equity Financing under, and subject to the terms and conditions of, the Equity Financing Commitment,
(iv) against the Company, Parent or Sub, as applicable, under, and subject to the terms and conditions of, this Agreement or any other Transaction Document to which such person is a party, or (v) against any parties to the Voting
Agreements under, and subject to the terms and conditions of, the Voting Agreements, and (2) Parent and its affiliates may assert against the Financing Sources pursuant to the terms and conditions of the Financing Commitments.
(b)
Notwithstanding anything to the contrary herein or otherwise, (i) no Company Related Party shall have any rights or claims
against any Debt Financing Source in connection with this Agreement, the Transactions, the Debt Financing or any other transactions contemplated hereby or thereby, whether at law or equity, in contract, in tort or otherwise;
provided
that the
foregoing shall not in any way limit or modify the rights and obligations of Parent and its affiliates to assert claims against the Debt Financing Sources pursuant to the terms and conditions of the Debt Commitment Letter and (ii) no Parent
Related Party shall be responsible or liable for any multiple, consequential, indirect, special, statutory, exemplary or punitive damages which may be alleged as a result of this Agreement, the other Transaction Documents or any other agreement
referenced herein or therein or the transactions contemplated hereunder or thereunder (including the Financing), or the termination or abandonment of any of the foregoing.
* * * * * * * *
A-58
IN WITNESS WHEREOF
, Parent, Sub and the Company have caused this Agreement to be
signed by their respective officers thereunto duly authorized all as of the date first written above.
|
|
|
MOUNT OLYMPUS HOLDINGS, INC.
|
|
|
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
OLYMPUS MERGER SUB,
INC.
|
|
|
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
|
|
|
Name:
|
|
Thomas B. Barker
|
Title:
|
|
Chief Executive Officer and Chairman of the Board
|
Signature Page to Agreement and Plan of Merger
A-59
Annex I
Acceptable Confidentiality Agreement
means a confidentiality agreement that contains terms no less favorable to the Company
in all material respects than those contained in the Confidentiality Agreement;
provided
,
however
, that such confidentiality agreement shall not prohibit compliance by the Company with any of the provisions of
Section
5.03
and such confidentiality agreement need not include a standstill or similar provision.
affiliate
means, with respect to any person, any other person that directly or indirectly, through one or more
intermediaries, controls, is controlled by or is under common control with, the first-mentioned person;
provided
that in no event shall Parent, Sub or any of their Subsidiaries be considered an affiliate of any portfolio company or investment
fund (excluding investment funds focused on private equity) affiliated with Apollo Global Management, LLC, nor shall any portfolio company or investment fund (excluding investment funds focused on private equity) affiliated with Apollo Global
Management, LLC, be considered to be an affiliate of Parent, Sub or any of their Subsidiaries.
Aggregate Common Stock
Consideration
means the product of the Merger Consideration and the number of Shares issued and outstanding immediately prior to the Effective Time (other than Excluded Shares).
Aggregate Merger Consideration
means the sum of the Aggregate Common Stock Consideration, the aggregate Restricted Stock
payments payable under
Section
2.03(c)
, the aggregate Option Payments and the aggregate Stock Unit Payments.
Anti-Corruption Law
means any Law related to combating bribery and corruption, including, as applicable, the OECD
Convention on Combating Bribery of Foreign Officials in International Business Transactions and the UN Convention Against Corruption and any implementing legislation promulgated pursuant to such Conventions, the Foreign Corrupt Practices Act of 1977
and the U.K. Bribery Act 2010.
Antitrust Division
means the Antitrust Division of the Department of Justice.
Business Day
means any day, other than a Saturday or Sunday or a day on which banks are required or authorized by Law to
close in New York, New York.
Code
means the Internal Revenue Code of 1986, as amended.
Company Intellectual Property
means all Intellectual Property owned by, or licensed exclusively to, the Company or any
Company Subsidiary that is used by the Company and the Company Subsidiaries in conducting the business of the Company or any Company Subsidiary.
Company IP Agreements
means all written licenses, sublicenses, consent to use agreements, settlements, coexistence
agreements, covenants not to sue and other Contracts (including any right to receive or obligation to pay royalties or any other consideration), relating to Intellectual Property to which the Company or any Company Subsidiary is a party.
Company Lease
means any lease, sublease,
sub-sublease,
license and other agreement
under which the Company or a Company Subsidiary leases, subleases, licenses, uses or occupies (in each case whether as landlord, tenant, sublandlord, subtenant or by other occupancy arrangement), or has the right to use or occupy, now or in the
future, any real property.
Company Material Adverse Effect
means any change, circumstance, event or effect (each an
Effect
) that, (A) individually or in the aggregate together with all other Effects, has a material adverse effect on the business, financial condition or results of operations of the Company and the Company Subsidiaries,
taken as a
A-60
whole;
provided
,
however
, that none of the following, and no Effect arising out of or resulting from the following shall constitute or be taken into account in determining whether
there has been, a Company Material Adverse Effect: (a) the entry into or the announcement or pendency of this Agreement or the Transactions or the consummation of the Transactions, in each case, including (i) by reason of the
identity of, or any facts or circumstances relating to, Parent, Sub or any of their respective affiliates, (ii) by reason of any communication by Parent or any of its affiliates regarding the plans or intentions of Parent with respect to the
conduct of the business of the Company and the Company Subsidiaries following the Effective Time and (iii) the impact of any of the foregoing on any relationships with customers, suppliers, vendors, business partners, employees or regulators;
(b) the Companys November 1, 2016 announcement regarding the commencement of a process to explore the Companys range of financial and strategic alternatives, including, but not limited to, the sale or separation of one or more
of its operating businesses, or a sale of the Company; (c) any Effect generally affecting the economy or the financial, credit or securities markets in the United States or elsewhere in the world (including interest rates and exchange rates) or
any Effect generally affecting any business or industries in which the Company or any of the Company Subsidiaries operates; (d) the suspension of trading in securities generally on the NASDAQ; (e) any development or change after the date
hereof in applicable Law or GAAP; (f) any action taken by the Company or any of the Company Subsidiaries that is expressly required by this Agreement or taken with Parents prior written consent or at Parents written request, or the
failure by the Company or any of the Company Subsidiaries to take any action that is expressly prohibited by this Agreement (including under
Section
5.01(a))
to the extent Parent fails to provide its consent to such action
after receipt of a written request therefor and after the disclosure to Parent by the Company of all material and relevant facts and information known to the Company; (g) the commencement, occurrence, continuation or escalation of any armed
hostilities or acts of war (whether or not declared) or terrorism; (h) the existence, occurrence or continuation of any weather-related or force majeure events, including any earthquakes, floods, hurricanes, tropical storms, fires or other
natural disasters or any national, international or regional calamity; or (i) any changes in the market price or trading volume of the Shares, any changes in the ratings or the ratings outlook for the Company or any of the Company Subsidiaries
by any applicable rating agency, any changes in any analysts recommendations or ratings with respect to the Company or any of the Company Subsidiaries or any failure of the Company to meet any internal or external projections, budgets,
guidance, forecasts or estimates of revenues, earnings or other metrics for any period ending on or after the date of this Agreement (it being understood that the exceptions in this
clause
(i)
shall not prevent or otherwise
affect the underlying cause of any such change or failure referred to therein (to the extent not otherwise falling within any of the exceptions provided by
clauses
(a)
through
(h)
) from being taken into account in
determining whether a Company Material Adverse Effect has occurred;
provided
, that this
clause
(i)
shall not be construed as implying that the Company is making any representation or warranty with respect to any
internal or external projections, budgets, guidance, forecasts or estimates of revenues, earnings or other metrics for any period);
provided
, that with respect to
clauses
(c)
,
(d)
,
(e)
,
(g)
and
(h)
, such Effects shall be taken into account to the extent they materially and disproportionately adversely affect the Company and the Company Subsidiaries, taken as a whole, compared to other companies operating primarily in the same
industries in which the Company and the Company Subsidiaries operate or (B) prevents or materially impairs or delays the Company and the Company Subsidiaries from performing in any material respect their respective obligations under this
Agreement or consummating the Transactions.
Company Recommendation
means the recommendation of the Company Board that
the stockholders of the Company vote in favor of the Company Stockholder Approval.
Company Related Parties
means,
collectively, (A) the Company and (B) the former, current and future equity holders, controlling persons, directors, officers, employees, agents, attorneys, affiliates, members, managers, general or limited partners, stockholders and
assignees of the Company.
Company Representatives
means the directors, officers, advisors, affiliates,
representatives, employees, consultants, advisors, investment bankers, accountants and counsel of the Company and the Company Subsidiaries.
A-61
Company Stock Plans
means the West Corporation 2006 Executive Incentive
Plan, the Amended and Restated 2013 Long-Term Incentive Plan, the West Corporation Nonqualified Deferred Compensation Plan, the West Corporation Stock Deferral Plan and the Company Stock Purchase Plan.
Company Stock Purchase Plan
means the Companys 2013 Employee Stock Purchase Plan.
Company Subsidiaries
means the Subsidiaries of the Company.
Company Termination Fee
means an amount in cash equal to $72,000,000.
Competing Proposal
means, other than the Transactions, any proposal or offer from any person (other than Parent, Sub or any
of their respective affiliates) relating to (a) the acquisition (whether by merger, consolidation, equity investment, joint venture, recapitalization, reorganization, exchange offer, self-tender, recapitalization, liquidation or otherwise) by
any person of more than twenty percent (20%) of the consolidated assets of the Company and the Company Subsidiaries (measured by either book value or fair market value), taken as a whole, or to which more than twenty percent (20%) of the
Companys revenue on a consolidated basis is attributable or (b) the acquisition in any manner, directly or indirectly, by any person of beneficial ownership of more than twenty percent (20%) of the issued and outstanding Shares or any
other equity interest in the Company or securities convertible into or exchangeable for such Shares or equity interests.
Compliant
means, with respect to the Required Financing Information, that (i) such Required Financing Information does
not contain any untrue statement of a material fact regarding the Company and the Company Subsidiaries or omit to state any material fact regarding the Company and the Company Subsidiaries necessary in order to make such Required Financing
Information not misleading under the circumstances, (ii) such Required Financing Information complies in all material respects with all applicable requirements of Regulation
S-K
and Regulation
S-X
under the Securities Act for a registered public offering of
non-convertible
debt securities on Form
S-1
that are applicable to
such Required Financing Information (other than such provisions for which compliance is not customary in a Rule 144A offering of high yield debt securities) and (iii) the financial statements and other financial information included in such
Required Financing Information would not be deemed stale or otherwise be unusable under customary practices for offerings and private placements of high yield debt securities under Rule 144A promulgated under the Securities Act and are sufficient to
permit the Companys independent accountants to issue customary comfort letters to the Debt Financing Sources to the extent required as part of the Debt Financing, including as to customary negative assurances and change period, in order to
consummate any offering of debt securities on any day during the Marketing Period (and such accountants have confirmed they are prepared to issue a comfort letter subject to their completion of customary procedures).
Confidentiality Agreement
means the letter regarding confidentiality between the Company and Apollo Management VIII, L.P.
dated November 30, 2016.
Contract
means any agreement, contract, lease (whether for real or personal property),
power of attorney, note, bond, mortgage, indenture, deed of trust, loan, permit, evidence of Indebtedness, letter of credit, settlement agreement, franchise agreement, covenant not to compete, employment agreement, license or other legal commitment
(other than any purchase or sale order) to which a person is a party or to which the properties or assets of such person are subject, in each case whether written or oral.
Copyrights
means United States and
non-United
States copyrights and mask works (as
defined in 17 U.S.C. §901) and registrations and pending applications to register the same.
Credit
Agreements
means (i) the Amended and Restated Credit Agreement, dated as of October 5, 2010, among the Company, as borrower, the lenders from time to time party thereto and Wells Fargo Bank, National Association, as
administrative agent, as amended, restated, supplemented or otherwise modified from time to
A-62
time and (ii) the Receivables Purchase Agreement, dated as of August 28, 2009, among West Receivables LLC, as seller, the Company, as servicer, the purchasers party thereto and Wells
Fargo Bank, National Association, as administrative agent, as amended restated, supplement or otherwise modified from time to time.
Debt Financing Sources
means the Lenders and the other persons that have committed to provide the debt financing
contemplated by, or have otherwise entered into agreements in connection with, the Debt Commitment Letter, and any joinder agreements, indentures or credit agreements permitted under this Agreement and entered into pursuant thereto or relating
thereto, together with their affiliates, current or future officers, directors, employees, agents, representatives, stockholders, limited partners, managers, members or partners involved in the Debt Financing and their successors and assigns.
Environmental Laws
means all Laws that (a) regulate or relate to the protection or
clean-up
of the environment, occupational safety and health in respect of exposure to Hazardous Substances or the use, treatment, storage, transportation, handling, disposal or release of Hazardous Substances
or (b) impose liability (including for enforcement, investigatory costs, cleanup, removal or response costs, natural resource damages, contribution, injunctive relief) or standards of care with respect to any of the foregoing.
Environmental Permits
means any permit, registration, identification number, license or other authorization required under
any applicable Environmental Law.
ERISA Affiliate
means any entity that, together with another entity, would be
treated as a single employer under Section 414(b), (c), (m) or (o) of the Code or Section 4001 of ERISA.
Exchange
Act
means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
Excluded Shares
means Shares to be cancelled in accordance with
Section
2.01(a)(ii)
and
Dissenting Shares.
FCC
means the Federal Communications Commission.
FTC
means the Federal Trade Commission.
GAAP
means generally accepted accounting principles as applied in the United States.
Governmental Entity
means any national, federal, state, county, municipal or local government, or other governmental or
regulatory body or political subdivision thereof, and any entity exercising executive, legislative, judicial, regulatory, taxing or administrative functions of or pertaining to government.
Hazardous Substances
means any toxic, reactive, corrosive, ignitable or flammable chemical, or chemical compound, or
hazardous substance, material or waste, whether solid, liquid or gas, that is subject to regulation, control or remediation or for which liability or standards of care are imposed under any Environmental Law, including petroleum (including crude oil
or any fraction thereof), asbestos, radioactive materials and polychlorinated biphenyls.
HSR Act
means the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Indebtedness
means all (a) indebtedness of the
Company or any of the Company Subsidiaries for borrowed money (including the aggregate principal amount thereof and the aggregate amount of any accrued but unpaid interest thereon), other than indebtedness for borrowed money between the Company and
any of the wholly-owned Company Subsidiaries or between the wholly-owned Company Subsidiaries; (b) obligations of the Company or any of the Company Subsidiaries evidenced by bonds, notes, debentures, letters of credit or similar
A-63
instruments; (c) obligations of the Company or any of the Company Subsidiaries under capitalized leases; (d) obligations in respect of interest rate and currency obligation swaps,
hedges or similar arrangements (other than foreign exchange hedges entered into with respect to nonmonetary assets or liabilities reflected on the consolidated balance sheet of the Company and the Company Subsidiaries); and (e) obligations of
the Company or any of the Company Subsidiaries to guarantee any of the foregoing types of payment obligations on behalf of any person other than the Company or any of the Company Subsidiaries.
Intellectual Property
means all intellectual property and proprietary rights, including all (a) Patents, (b)
Trademarks and Internet domain names, (c) Copyrights, (d) computer software programs in both source code, or object code, including any and all software implementations of algorithms, models and methodologies, and documentation, related to any
of the foregoing, (e) mask works and industrial designs, and all applications and registrations in connection therewith, and (f) Trade Secrets
Insurance Policies
means all material insurance policies and arrangements held, as of the date of this Agreement, by or for
the benefit of the Company, any Company Subsidiary, or the business, assets or properties owned, leased or operated by the Company or any Company Subsidiary.
Intervening Event
means any material event, change, effect, development, state of facts, condition or occurrence that
occurs or arises after the date of this Agreement that (a) was not known, or reasonably foreseeable (or the material consequences were not known or reasonably foreseeable) to or by the Company Board as of or prior to the date of this Agreement
and did not result from a breach of this Agreement by the Company, any Company Subsidiary or any Company Representative, and (b) does not involve or relate to the receipt, existence or terms of a Competing Proposal.
knowledge
or
known
means, (a) with respect to the Company, the actual knowledge of the individuals
listed in
Section
1.01
of the Company Disclosure Letter (following reasonable inquiry consistent with their position and duties), and (b) with respect to Parent, the actual knowledge of the individuals listed in
Section
1.01
of the Parent Disclosure Letter (following reasonable inquiry).
Law
means any
federal, state, local or foreign law (including common law), statute, code, directive, ordinance, rule, regulation, order, judgment, writ, stipulation, award, injunction, decree, ruling, stock exchange listing requirement or other requirement
issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Entity and any order or decision of an applicable arbitrator or arbitration panel.
Lien
means any lien, mortgage, pledge, conditional or installment sale agreement, encumbrance, covenant, restriction,
option, right of first refusal, easement, security interest, deed of trust,
right-of-way,
encroachment, community property interest or other claim or restriction of any
nature, whether voluntarily incurred or arising by operation of Law.
Marketing Period
means the first period of 17
consecutive days after the date of this Agreement and throughout which and at the end of which (i) Parent has the Required Financing Information and the Required Financing Information is Compliant; (ii) the conditions set forth in
Sections
6.01
and
6.02
are satisfied (other than those conditions that by their nature can only be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of
such conditions) and (iii) nothing has occurred and no condition exists that would cause any of the conditions set forth in
Section
6.01
or
6.02
to fail to be satisfied (other than those conditions that by their
nature can only be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by applicable Law, waiver of such conditions), assuming that such conditions were applicable at any time during such 17 consecutive day period;
provided
, that (A) May 29, 2017, July 3, 2017 and July 4, 2017 shall not be considered calendar days for purposes of such 17 consecutive day period and (B) if such 17 consecutive days shall not have elapsed on or
prior to August 18, 2017, then such 17 consecutive day period shall commence no earlier than September 5, 2017. Notwithstanding the foregoing, (A) the Marketing Period will
A-64
end on any earlier date on which the Debt Financing is obtained and (B) the Marketing Period will not commence or be deemed to have commenced if, after the date of this Agreement and prior
to the completion of the consecutive day period referenced herein (1) the Companys independent accountant has withdrawn its audit opinion with respect to any financial statements contained in the Companys most recently filed Annual
Report on Form
10-K,
in which case the Marketing Period will not be deemed to commence unless and until a new unqualified audit opinion is issued with respect to the consolidated financial statements of the
Company for the applicable periods by the independent accountant or another Big Four or other nationally recognized independent public accounting firm or other public accounting firm reasonably acceptable to Parent, (2) the Company
issues a public statement indicating its intent to restate any historical financial statements of the Company or any such restatement is under active consideration, in which case the Marketing Period will not be deemed to commence unless and until
such restatement has been completed and the relevant Required Financing Information has been amended or the Company has announced that it has concluded that no restatement will be required in accordance with GAAP, (3) any Required Financing
Information would not be Compliant at any time during such consecutive day period (it being understood and agreed that if any Required Financing Information provided at the commencement of the Marketing Period ceases to be Compliant during such
consecutive day period, then the Marketing Period will be deemed not to have occurred) or otherwise does not include the Required Financing Information as defined or (4) the Company has failed to file any report on Form
10-K,
Form
10-Q
or Form
8-K
required to be filed with the SEC by the date required under the Exchange Act, in which case (a) in
the case of a failure to file a Form
10-K
or Form
10-Q,
the Marketing Period will not be deemed to commence unless and until such reports have been filed; and
(b) in the case of a failure to file a Form
8-K,
the Marketing Period will be tolled until such report has been filed;
provided
, that if the failure to file such report occurs during the final five
Business Days of the Marketing Period, the Marketing Period will be extended so that the final day of the Marketing Period will be no earlier than the fifth Business Day after such report has been filed.
NASDAQ
means the NASDAQ Global Select Market.
Parent Related Parties
means, collectively, (A) Parent, Sub, the Guarantors, (B) the former, current and future
equity holders, controlling persons, directors, officers, employees, agents, attorneys, Financing Sources, affiliates (other than Parent, Sub or the Guarantors), members, managers, general or limited partners, stockholders and assignees of each of
Parent, Sub and the Guarantors and (C) any portfolio company or investment fund affiliated with Apollo Global Management, LLC.
Parent Termination Fee
means an amount in cash equal to $134,000,000.
Patents
means United States and
non-United
States patents, provisional patent
applications, patent applications, continuations,
continuations-in-part,
divisions, reissues, patent disclosures, industrial designs and invention disclosure forms.
Permitted Liens
means (a) statutory Liens for Taxes, assessments or other charges by Governmental Entities not yet due
and payable or the amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established in the Company Financial Statements in accordance with GAAP, (b) mechanics,
materialmens, carriers, workmens, warehousemans, repairmens, landlords and similar Liens granted or that arise in the ordinary course of business that are not material individually or in the aggregate,
(c) Liens securing Indebtedness or liabilities that are reflected in the Company SEC Documents filed on or prior to the date of this Agreement as being secured as of the date of this Agreement, (d) easements that are disclosed in the real
estate title insurance policies, commitments and reports or in the surveys for the Owned Real Properties made available to Parent prior to the date hereof (other than such matters that, individually or in the aggregate, materially adversely impair
the current use of the subject real property), (e) Liens imposed or promulgated by Law with respect to real property and improvements, including building codes and zoning regulations that do not materially impair the existing use of the subject
real property and improvements, (f) easements, rights of way, restrictions, covenants or other similar matters that are not
A-65
material in amount or do not materially detract from the value or materially impair the existing use of the subject real property, (g) Liens that affect the underlying fee interest of any
real property that are not material in amount or do not materially detract from the value or materially impair the existing use of the subject real property and (h) such other Liens that are not material in amount or do not materially detract
from the value or materially impair the existing use of the property to which they relate.
Personal Data
means any
information relating to an identified or identifiable natural person, including an individuals name, address, social security number, financial account information, email address or medical record or health information.
person
means an individual, corporation, partnership, limited partnership, limited liability partnership, limited liability
company, joint venture, association, trust, unincorporated organization, Governmental Entity or other entity (including any person as defined in Section 13(d)(3) of the Exchange Act).
Privacy and Security Requirements
means all applicable Laws related to data privacy and data security, including, as
applicable, the Health Insurance Portability and Accountability Act of 1996, the Health Information Technology for Economic and Clinical Health Act of 2009, and all implementing regulations thereof (
HIPAA
) and the privacy and
security policies of the Company and the Company Subsidiaries.
Proxy Statement
means a proxy or information statement
relating to the approval of this Agreement by the Companys stockholders.
Related Party
means a Company Related
Party or a Parent Related Party, as applicable.
Required Financing Information
means (i) all financial
statements, financial data, audit reports and other information regarding the Company and the Company Subsidiaries of the type that would be required by Regulation
S-X
promulgated by the SEC and Regulation
S-K
promulgated by the SEC for a registered public offering of
non-convertible
debt securities on a registration statement on Form
S-1
under the Securities Act of the Company to consummate the offering(s) of high yield debt securities contemplated by the Debt Commitment Letter, assuming that such offering(s) were consummated at the same time during the Companys fiscal year as
such offering(s) of debt securities will be made (including all audited financial statements and all unaudited financial statements (which will have been reviewed by the Companys independent accountants as provided in Statement on Auditing
Standards 100)); and (ii) (A) such other financial and other information regarding the Company and the Company Subsidiaries as may be reasonably requested by Parent (or the Debt Financing Sources) to the extent that such information is required
in connection with the Debt Commitment Letter or of the type and form customarily included in an offering memorandum for private placements of
non-convertible
high-yield bonds pursuant to Rule 144A promulgated
under the Securities Act; or (B) as otherwise necessary to receive from the Companys independent accountants (and any other accountant to the extent that financial statements audited or reviewed by such accountants are or would be
included in such offering memorandum), customary comfort (including negative assurance comfort and change period comfort), together with drafts of customary comfort letters that such independent public accountants are
prepared to deliver upon the pricing of any high-yield bonds being issued in lieu of any portion of the Debt Financing, with respect to the financial information to be included in such offering memorandum. Notwithstanding anything to the
contrary in
clauses (i)
and
(ii)
, nothing will require the Company to provide (or be deemed to require the Company to prepare) any (1) pro forma financial statements or pro forma financial information not required to be provided
by the Company or the Company Subsidiaries pursuant to
Section 5.07(f)(iii)
, (2) description of all or any portion of the Debt Financing, including any description of notes, (3) risk factors relating to all or any component of the
Debt Financing or (4) other information required by Rule
3-10
or Rule
3-16
of Regulation
S-X,
any Compensation Discussion
and Analysis required by Item 402(b) of Regulation
S-K
or any other information customarily excluded from an offering memorandum for private placements of
non-convertible
high-yield bonds pursuant to Rule 144A.
SEC
means the United
States Securities and Exchange Commission.
A-66
Securities Act
means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
Solvent
when used with respect to any person, means that, as of any date
of determination, (a) the fair value of the assets of such person and its subsidiaries on a consolidated basis, at a fair valuation, will exceed the debts and liabilities, direct, subordinated, contingent or otherwise, of such person and its
subsidiaries on a consolidated basis, (b) the present fair saleable value of the property of such person and its subsidiaries on a consolidated basis will be greater than the amount that will be required to pay the probable liability of such
person and its subsidiaries on a consolidated basis on their debts and other liabilities, direct, subordinated, contingent or otherwise, as such debts and other liabilities become absolute and matured, (c) such person and its subsidiaries on a
consolidated basis will be able to pay their debts and liabilities, direct, subordinated, contingent or otherwise, as such debts and liabilities become absolute and matured, and (d) such person and its subsidiaries on a consolidated basis will
not have unreasonably small capital with which to conduct the businesses in which they are engaged as such businesses are now conducted and are proposed to be conducted following the Closing Date.
State PSCs
means state telecommunications regulatory agencies.
Subsidiary
of any person means another person, of which at least a majority of the securities or ownership interests having
by their terms ordinary voting power to elect a majority of the board of directors or other persons performing similar functions is owned or controlled directly or indirectly by such first person or by one or more of its Subsidiaries.
Superior Proposal
means a
bona fide
written Competing Proposal (with all percentages in the definition of Competing
Proposal increased to seventy percent (70%)) made by any person on terms that the Company Board determines in good faith, after consultation with the Companys financial advisors and outside legal counsel, and considering all legal, financial,
tax, regulatory, timing and other aspects of the proposal and the person making such proposal (including any
break-up
fees, expense reimbursement provisions, the conditionality and the timing and likelihood of
consummation of such proposal), that (a) if consummated, would result in a transaction that is more favorable, including from a financial point of view, to the Company and its stockholders than the Transactions and (b) is reasonably
capable of being completed on the terms proposed.
Tax
and
Taxes
means any federal, state, local or
foreign income, gross receipts, windfall profit, gains, net worth, severance, property, production, sales, use, value added, license, excise, stamp, transfer, franchise, employment, payroll, withholding, social security, alternative or
add-on
minimum or any other similar tax, levy, tariff, impost, customs duty or similar charge, together with any and all interest, penalties or additions thereto, imposed directly or indirectly by any Governmental
Entity.
Tax Return
means any return, report or similar statement filed or required to be filed with respect to any Tax
including any information return, claim for refund, amended return or declaration of estimated Tax.
Trademarks
means
United States, state and
non-United
States trademarks, service marks, trade names, designs, logos, slogans, and pending registrations and applications to register the foregoing and all of the goodwill of the
Company associated with the foregoing.
Trade Secrets
means trade secrets and confidential ideas,
know-how,
concepts, methods, processes, formulae, technology, algorithms, models, reports, data, customer lists, supplier lists, mailing lists, business plans and other proprietary information, all of which derive
value, monetary or otherwise, from being maintained in confidence.
Transaction Documents
means, collectively, this
Agreement, the Confidentiality Agreement, the Guarantee, the Financing Commitments, the Voting Agreements and any other document contemplated thereby or any document or instrument delivered in connection hereunder or thereunder.
A-67
Each of the following terms is defined in the Section set forth opposite such term:
|
|
|
Term
|
|
Section
|
Acquisition Agreement
|
|
Section 5.03(c)
|
Agreement
|
|
Preamble
|
Antitrust Counsel Only Material
|
|
Section 5.06(c)
|
Antitrust Laws
|
|
Section 3.04(b)
|
Bankruptcy and Equity Exception
|
|
Section 3.03(a)
|
Book-Entry Shares
|
|
Section 2.01(a)(i)
|
Certificate
|
|
Section 2.01(a)(i)
|
Certificate of Merger
|
|
Section 1.03
|
Change of Company Recommendation
|
|
Section 5.03(c)
|
Closing
|
|
Section 1.02
|
Closing Date
|
|
Section 1.02
|
Communications Act
|
|
Section 3.04(b)
|
Company
|
|
Preamble
|
Company Affiliate Transaction
|
|
Section 3.28
|
Company Benefit Plan
|
|
Section 3.12(a)
|
Company Board
|
|
Recitals
|
Company By-laws
|
|
Section 3.01(b)
|
Company Charter
|
|
Section 3.01(b)
|
Company Common Stock
|
|
Recitals
|
Company Disclosure Letter
|
|
Article III
|
Company Financial Statements
|
|
Section 3.06(b)
|
Company Material Contract
|
|
Section 3.18(b)(xiii)
|
Company Options
|
|
Section 2.03(a)
|
Company Permits
|
|
Section 3.05(a)
|
Company Preferred Stock
|
|
Section 3.02(a)
|
Company Registered Intellectual Property
|
|
Section 3.17(a)
|
Company SEC Documents
|
|
Section 3.06(a)
|
Company Stockholder Approval
|
|
Section 3.22
|
Company Stockholder Meeting
|
|
Section 5.04(c)
|
D&O Insurance
|
|
Section 5.10(b)
|
Debt Commitment Letter
|
|
Section 4.07(a)
|
Debt Financing
|
|
Section 4.07(a)
|
Deferred Compensation Plan
|
|
Section 2.03(e)
|
Definitive Debt Financing Agreements
|
|
Section 5.07(a)
|
DGCL
|
|
Recitals
|
Dissenting Shares
|
|
Section 2.04
|
Dissenting Stockholder
|
|
Section 2.04
|
Effective Time
|
|
Section 1.03
|
Equity Commitment Letter
|
|
Section 4.07(a)
|
Equity Financing
|
|
Section 4.07(a)
|
Equity Financing Sources
|
|
Section 4.07(a)
|
ERISA
|
|
Section 3.12(a)
|
Exchange Fund
|
|
Section 2.02(a)
|
FCC Approvals
|
|
Section 3.04(b)
|
Fee Letter
|
|
Section 4.07(a)
|
Final Payment Period
|
|
Section 2.03(d)
|
Financing
|
|
Section 4.07(a)
|
Financing Commitments
|
|
Section 4.07(a)
|
Financing Sources
|
|
Section 4.07(a)
|
A-68
|
|
|
Term
|
|
Section
|
Financing Uses
|
|
Section 4.07(b)
|
Guarantee
|
|
Recitals
|
Guarantors
|
|
Recitals
|
Indemnified Liabilities
|
|
Section 5.10(a)
|
Indemnified Parties
|
|
Section 5.10(a)
|
Indemnified Party
|
|
Section 5.10(a)
|
Indenture
|
|
Section 5.08(b)
|
IRS
|
|
Section 3.12(c)
|
Leased Real Property
|
|
Section 3.15
|
Lenders
|
|
Section 4.07(a)
|
Maximum Premium
|
|
Section 5.10(b)
|
Merger
|
|
Recitals
|
Merger Consideration
|
|
Section 2.01(a)(i)
|
Notice of Change of Recommendation
|
|
Section 5.03(d)(iii)
|
Notional Shares
|
|
Section 2.03(e)
|
Option Payments
|
|
Section 2.03(a)
|
Outside Date
|
|
Section 7.01(b)(i)
|
Owned Real Property
|
|
Section 3.15
|
Parent
|
|
Preamble
|
Parent Disclosure Letter
|
|
Article IV
|
Paying Agent
|
|
Section 2.02(a)
|
Permit
|
|
Section 3.05(a)
|
Proceeding
|
|
Section 3.11
|
Qualifying Transaction
|
|
Section 7.02(b)
|
Reportable Person
|
|
Section 4.12
|
Restricted Stock
|
|
Section 2.03(c)
|
Restricted Stock Award
|
|
Section 2.03(c)
|
Sarbanes-Oxley Act
|
|
Section 3.06(a)
|
Secured Indenture
|
|
Section 5.08(b)
|
Share
|
|
Section 2.01(a)(i)
|
Shares
|
|
Section 2.01(a)(i)
|
Significant Customers
|
|
Section 3.27
|
Significant Suppliers
|
|
Section 3.27
|
Specified Date
|
|
Section 3.02(a)
|
State PSC Approvals
|
|
Section 3.04(b)
|
Stock Unit Award
|
|
Section 2.03(b)
|
Stock Unit Payments
|
|
Section 2.03(b)
|
Stock Units
|
|
Section 2.03(b)
|
Sub
|
|
Preamble
|
Surviving Corporation
|
|
Section 1.01
|
Takeover Statute
|
|
Section 3.21
|
Transaction Litigation
|
|
Section 5.15
|
Transactions
|
|
Recitals
|
Union Contracts
|
|
Section 3.13(b)
|
Unsecured Indenture
|
|
Section 5.08(b)
|
Voting Agreements
|
|
Recitals
|
A-69
ANNEX B
Centerview Partners LLC
31 West 52nd Street
New York, NY 10019
May 9, 2017
The Board
of Directors
West Corporation
11808 Miracle Hills Drive
Omaha, Nebraska 68154
The Board of Directors:
You have requested our opinion as to the fairness, from a financial point of view, to the holders of the outstanding shares of common stock,
par value $0.001 per share (the Shares) (other than Excluded Shares, as defined below), of West Corporation, a Delaware corporation (the Company), of the $23.50 per Share in cash, without interest, proposed to be paid to
such holders pursuant to the Agreement and Plan of Merger (the Agreement) proposed to be entered into by and among Mount Olympus Holdings, Inc., a Delaware corporation (Parent), Olympus Merger Sub, Inc., a Delaware
corporation and wholly owned subsidiary of Parent (Sub), and the Company. The Agreement provides that Sub will be merged with and into the Company (the Merger and, collectively with the other transactions contemplated by the
Agreement, the Transaction), as a result of which the Company will become a wholly owned subsidiary of Parent and each issued and outstanding Share immediately prior to the effective time of the Merger (other than (i) Shares that
are held in the treasury of the Company, (ii) Shares owned of record by any wholly owned Company subsidiary, (iii) Shares owned of record by Parent or any of its wholly owned subsidiaries and (iv) Dissenting Shares (as defined in the
Agreement) (the shares referred to in clauses (i), (ii), (iii) and (iv), together with any Shares held by any other affiliate of Parent, Excluded Shares)) shall be converted into the right to receive $23.50 per Share in cash, without
interest (the $23.50 per Share consideration to be paid in the Merger, the Consideration). The terms and conditions of the Transaction are more fully set forth in the Agreement.
We have acted as financial advisor to the Board of Directors of the Company in connection with the Transaction. We will receive a fee for our
services in connection with the Transaction, a portion of which is payable upon the rendering of this opinion and a substantial portion of which is contingent upon the consummation of the Merger. In addition, the Company has agreed to reimburse
certain of our expenses arising, and indemnify us against certain liabilities that may arise, out of our engagement.
We are a securities
firm engaged directly and through affiliates and related persons in a number of investment banking, financial advisory and merchant banking activities. In the past two years, we have been engaged to provide financial advisory services to the Company
but we have not received compensation from the Company for such services. In the past two years, we were engaged to provide financial advisory services unrelated to the Company or the Transaction to the Board of Directors of Clear Channel Outdoor
Holdings, Inc. (Clear Channel Outdoor), and we received compensation for such services. Clear Channel Outdoor is a publicly traded company that is controlled by iHeartMedia, Inc., another publicly traded company in which affiliates of
Thomas H. Lee Partners, L.P. (THL) (which owns approximately 21% of the Companys outstanding common stock), together with affiliates of Bain Capital Private Equity, L.P., collectively hold a
B-1
The Board of Directors
West Corporation
May 9, 2017
Page
2
majority ownership interest. In the past two years, we have not been engaged to provide financial advisory or other services to Parent or Sub and we have not received compensation from Parent or
Sub. In the past two years, we have been engaged to provide, and are currently providing, (i) financial advisory services unrelated to the Company or the Transaction to a portfolio company of Apollo Global Management, LLC (Apollo),
an affiliate of Parent, and (ii) financial advisory services to Apollo and/or its affiliates, as lenders under a
debtor-in-possession
facility entered into in
connection with a bankruptcy proceeding unrelated to the Company or the Transaction. We have received, and may in the future receive, compensation for certain of the foregoing services. In addition, in the past two years, we have been engaged to
provide, and in certain cases are currently providing, financial advisory services unrelated to the Company or the Transaction to financial creditor groups or ad hoc creditor committees (of which one or more affiliates of Apollo is a member) in
connection with restructurings or potential restructurings involving the relevant issuer, and we have received, and may in the future receive, compensation for such services. We also note that in the past two years we have been engaged to provide,
and are currently providing, financial advisory services to a committee of independent members of the Board of Directors of Caesars Entertainment Corporation, a publicly traded portfolio company of Apollo and TPG Capital, LP, in connection with a
merger transaction with Caesars Acquisition Corporation, another publicly traded portfolio company of Apollo and TPG Global, LLC, and other matters, and we have received, and may in the future receive, compensation for such services. We may provide
financial advisory and other services to or with respect to the Company, THL, Parent or Apollo or their respective affiliates, including portfolio companies of THL and Apollo, in the future, for which we may receive compensation. Certain (i) of
our and our affiliates directors, officers, members and employees, or family members of such persons, (ii) of our affiliates or related investment funds and (iii) investment funds or other persons in which any of the foregoing may
have financial interests or with which they may
co-invest,
may at any time acquire, hold, sell or trade, in debt, equity and other securities or financial instruments (including derivatives, bank loans or
other obligations) of, or investments in, the Company, THL, Parent, Apollo or any of their respective affiliates, including portfolio companies of THL and Apollo, or any other party that may be involved in the Transaction.
In connection with this opinion, we have reviewed, among other things: (i) a draft of the Agreement dated May 9, 2017 (the
Draft Agreement); (ii) Annual Reports on Form
10-K
of the Company for the years ended December 31, 2016, 2015 and 2014; (iii) certain interim reports to stockholders and Quarterly
Reports on
Form 10-Q
of the Company; (iv) certain publicly available research analyst reports for the Company; (v) certain other communications from the Company to its stockholders; and
(vi) certain internal information relating to the business, operations, earnings, cash flow, assets, liabilities and prospects of the Company, including certain financial forecasts, analyses and projections relating to the Company prepared by
management of the Company and furnished to us by the Company for purposes of our analysis (the Forecasts) (collectively, the Internal Data). We have also participated in discussions with members of the senior management and
representatives of the Company regarding their assessment of the Internal Data. In addition, we reviewed publicly available financial and stock market data, including valuation multiples, for the Company and compared that data with similar data for
certain other companies, the securities of which are publicly traded, in lines of business that we deemed relevant. We also compared certain of the proposed financial terms of the Transaction with the financial terms, to the extent publicly
available, of certain other transactions that we deemed relevant and conducted such other financial studies and analyses and took into account such other information as we deemed appropriate.
We have assumed, without independent verification or any responsibility therefor, the accuracy and completeness of the financial, legal,
regulatory, tax, accounting and other information supplied to, discussed with, or reviewed by us for purposes of this opinion and have, with your consent, relied upon such information as being complete and accurate. In that regard, we have assumed,
at your direction, that the Internal Data (including, without limitation, the Forecasts) has been reasonably prepared on bases reflecting the best currently available
B-2
The Board of Directors
West Corporation
May 9, 2017
Page
3
estimates and judgments of the management of the Company as to the matters covered thereby and we have relied, at your direction, on the Internal Data for purposes of our analysis and this
opinion. We express no view or opinion as to the Internal Data or the assumptions on which it is based. In addition, at your direction, we have not made any independent evaluation or appraisal of any of the assets or liabilities (contingent,
derivative,
off-balance-sheet
or otherwise) of the Company, nor have we been furnished with any such evaluation or appraisal, and we have not been asked to conduct, and did not conduct, a physical inspection
of the properties or assets of the Company. We have assumed, at your direction, that the final executed Agreement will not differ in any respect material to our analysis or this opinion from the Draft Agreement reviewed by us. We have also assumed,
at your direction, that the Transaction will be consummated on the terms set forth in the Agreement and in accordance with all applicable laws and other relevant documents or requirements, without delay or the waiver, modification or amendment of
any term, condition or agreement, the effect of which would be material to our analysis or this opinion and that, in the course of obtaining the necessary governmental, regulatory and other approvals, consents, releases and waivers for the
Transaction, no delay, limitation, restriction, condition or other change will be imposed, the effect of which would be material to our analysis or this opinion. We have not evaluated and do not express any opinion as to the solvency or fair value
of the Company or any other person, or the ability of the Company or any other person to pay its obligations when they come due, or as to the impact of the Transaction on such matters, under any state, federal or other laws relating to bankruptcy,
insolvency or similar matters. We are not legal, regulatory, tax or accounting advisors, and we express no opinion as to any legal, regulatory, tax or accounting matters.
We express no view as to, and our opinion does not address, the Companys underlying business decision to proceed with or effect the
Transaction, or the relative merits of the Transaction as compared to any alternative business strategies or transactions that might be available to the Company or in which the Company might engage. This opinion is limited to and addresses only the
fairness, from a financial point of view, as of the date hereof, to the holders of the Shares (other than Excluded Shares) of the Consideration to be paid to such holders pursuant to the Agreement. We have not been asked to, nor do we express any
view on, and our opinion does not address, any other term or aspect of the Agreement or the Transaction, including, without limitation, the structure or form of the Transaction, or any other agreements or arrangements contemplated by the Agreement
or entered into in connection with or otherwise contemplated by the Transaction, including, without limitation, the fairness of the Transaction or any other term or aspect of the Transaction to, or any consideration to be received in connection
therewith by, or the impact of the Transaction on, the holders of any other class of securities, creditors or other constituencies of the Company or any other party. In addition, we express no view or opinion as to the fairness (financial or
otherwise) of the amount, nature or any other aspect of any compensation to be paid or payable to any of the officers, directors or employees of the Company or any party, or class of such persons in connection with the Transaction, whether relative
to the Consideration to be paid to the holders of the Shares pursuant to the Agreement or otherwise. Our opinion is necessarily based on financial, economic, monetary, currency, market and other conditions and circumstances as in effect on, and the
information made available to us as of, the date hereof, and we do not have any obligation or responsibility to update, revise or reaffirm this opinion based on circumstances, developments or events occurring after the date hereof. Our opinion does
not constitute a recommendation to any stockholder of the Company or any other person as to how such stockholder or other person should vote with respect to the Merger or otherwise act with respect to the Transaction or any other matter.
Our financial advisory services and the opinion expressed herein are provided for the information and assistance of the Board of Directors of
the Company (in their capacity as directors and not in any other capacity) in connection with and for purposes of its consideration of the Transaction. The issuance of this opinion was approved by the Centerview Partners LLC Fairness Opinion
Committee.
B-3
The Board of Directors
West Corporation
May 9, 2017
Page
4
Based upon and subject to the foregoing, including the various assumptions made, procedures
followed, matters considered, and qualifications and limitations set forth herein, we are of the opinion, as of the date hereof, that the Consideration to be paid to the holders of Shares (other than Excluded Shares) pursuant to the Agreement is
fair, from a financial point of view, to such holders.
Very truly yours,
/s/ Centerview Partners LLC
CENTERVIEW PARTNERS LLC
B-4
Annex C
Section 262 of the Delaware General Corporation Law
§ 262. Appraisal rights.
(a)
Any stockholder of a corporation of this State who holds shares of stock on the date of the making of a demand pursuant to subsection (d) of this section with respect to such shares, who continuously holds such shares through the
effective date of the merger or consolidation, who has otherwise complied with subsection (d) of this section and who has neither voted in favor of the merger or consolidation nor consented thereto in writing pursuant to
§ 228 of this title shall be entitled to an appraisal by the Court of Chancery of the fair value of the stockholders shares of stock under the circumstances described in subsections (b) and (c) of this section. As used
in this section, the word stockholder means a holder of record of stock in a corporation; the words stock and share mean and include what is ordinarily meant by those words; and the words depository
receipt mean a receipt or other instrument issued by a depository representing an interest in 1 or more shares, or fractions thereof, solely of stock of a corporation, which stock is deposited with the depository.
(b) Appraisal rights shall be available for the shares of any class or series of stock of a constituent corporation in a merger or
consolidation to be effected pursuant to § 251 (other than a merger effected pursuant to § 251(g) of this title and, subject to paragraph (b)(3) of this section, § 251(h) of this title), § 252,
§ 254, § 255, § 256, § 257, § 258, § 263 or § 264 of this title:
(1) Provided, however, that, except as expressly provided in § 363(b) of this title, no appraisal rights under
this section shall be available for the shares of any class or series of stock, which stock, or depository receipts in respect thereof, at the record date fixed to determine the stockholders entitled to receive notice of the meeting of
stockholders to act upon the agreement of merger or consolidation, were either: (i) listed on a national securities exchange or (ii) held of record by more than 2,000 holders; and further provided that no appraisal rights shall be
available for any shares of stock of the constituent corporation surviving a merger if the merger did not require for its approval the vote of the stockholders of the surviving corporation as provided in § 251(f) of this title.
(2) Notwithstanding paragraph (b)(1) of this section, appraisal rights under this section shall be available for the
shares of any class or series of stock of a constituent corporation if the holders thereof are required by the terms of an agreement of merger or consolidation pursuant to §§ 251, 252, 254, 255, 256, 257, 258, 263 and 264 of this
title to accept for such stock anything except:
a. Shares of stock of the corporation surviving or resulting from such
merger or consolidation, or depository receipts in respect thereof;
b. Shares of stock of any other corporation, or
depository receipts in respect thereof, which shares of stock (or depository receipts in respect thereof) or depository receipts at the effective date of the merger or consolidation will be either listed on a national securities exchange or held of
record by more than 2,000 holders;
c. Cash in lieu of fractional shares or fractional depository receipts described in the
foregoing paragraphs (b)(2)a. and b. of this section; or
d. Any combination of the shares of stock, depository
receipts and cash in lieu of fractional shares or fractional depository receipts described in the foregoing paragraphs (b)(2)a., b. and c. of this section.
(3) In the event all of the stock of a subsidiary Delaware corporation party to a merger effected under § 251(h),
§ 253 or § 267 of this title is not owned by the parent immediately prior to the merger, appraisal rights shall be available for the shares of the subsidiary Delaware corporation.
(4) In the event of an amendment to a corporations certificate of incorporation contemplated by
§ 363(a) of this title, appraisal rights shall be available as contemplated by § 363(b) of this title, and the
C-1
procedures of this section, including those set forth in subsections (d) and (e) of this section, shall apply as nearly as practicable, with the word amendment
substituted for the words merger or consolidation, and the word corporation substituted for the words constituent corporation and/or surviving or resulting corporation.
(c) Any corporation may provide in its certificate of incorporation that appraisal rights under this section shall be available for the
shares of any class or series of its stock as a result of an amendment to its certificate of incorporation, any merger or consolidation in which the corporation is a constituent corporation or the sale of all or substantially all of the assets of
the corporation. If the certificate of incorporation contains such a provision, the provisions of this section, including those set forth in subsections (d), (e) and (g) of this section, shall apply as nearly as is practicable.
(d) Appraisal rights shall be perfected as follows:
(1) If a proposed merger or consolidation for which appraisal rights are provided under this section is to be submitted
for approval at a meeting of stockholders, the corporation, not less than 20 days prior to the meeting, shall notify each of its stockholders who was such on the record date for notice of such meeting (or such members who received notice in
accordance with §255(c) of this title) with respect to shares for which appraisal rights are available pursuant to subsection (b) or (c) of this section that appraisal rights are available for any or all of the shares
of the constituent corporations, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Each stockholder electing to demand the
appraisal of such stockholders shares shall deliver to the corporation, before the taking of the vote on the merger or consolidation, a written demand for appraisal of such stockholders shares. Such demand will be sufficient if it
reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the appraisal of such stockholders shares. A proxy or vote against the merger or consolidation shall not constitute such a
demand. A stockholder electing to take such action must do so by a separate written demand as herein provided. Within 10 days after the effective date of such merger or consolidation, the surviving or resulting corporation shall notify each
stockholder of each constituent corporation who has complied with this subsection and has not voted in favor of or consented to the merger or consolidation of the date that the merger or consolidation has become effective; or
(2) If the merger or consolidation was approved pursuant to § 228, § 251(h), § 253, or
§ 267 of this title, then either a constituent corporation before the effective date of the merger or consolidation or the surviving or resulting corporation within 10 days thereafter shall notify each of the holders of any class or
series of stock of such constituent corporation who are entitled to appraisal rights of the approval of the merger or consolidation and that appraisal rights are available for any or all shares of such class or series of stock of such constituent
corporation, and shall include in such notice a copy of this section and, if 1 of the constituent corporations is a nonstock corporation, a copy of § 114 of this title. Such notice may, and, if given on or after the effective date of
the merger or consolidation, shall, also notify such stockholders of the effective date of the merger or consolidation. Any stockholder entitled to appraisal rights may, within 20 days after the date of mailing of such notice or, in the case of
a merger approved pursuant to § 251(h) of this title, within the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days after the date of mailing of such notice, demand in writing from the
surviving or resulting corporation the appraisal of such holders shares. Such demand will be sufficient if it reasonably informs the corporation of the identity of the stockholder and that the stockholder intends thereby to demand the
appraisal of such holders shares. If such notice did not notify stockholders of the effective date of the merger or consolidation, either (i) each such constituent corporation shall send a second notice before the effective date of the
merger or consolidation notifying each of the holders of any class or series of stock of such constituent corporation that are entitled to appraisal rights of the effective date of the merger or consolidation or (ii) the surviving or resulting
corporation shall send such a second notice to all such holders on or within 10 days after such effective date; provided, however, that if such second notice is sent more than 20 days following the sending of the first notice or, in the
case of a merger approved pursuant to
C-2
§ 251(h) of this title, later than the later of the consummation of the offer contemplated by § 251(h) of this title and 20 days following the sending of the first
notice, such second notice need only be sent to each stockholder who is entitled to appraisal rights and who has demanded appraisal of such holders shares in accordance with this subsection. An affidavit of the secretary or assistant secretary
or of the transfer agent of the corporation that is required to give either notice that such notice has been given shall, in the absence of fraud, be prima facie evidence of the facts stated therein. For purposes of determining the stockholders
entitled to receive either notice, each constituent corporation may fix, in advance, a record date that shall be not more than 10 days prior to the date the notice is given, provided, that if the notice is given on or after the effective date
of the merger or consolidation, the record date shall be such effective date. If no record date is fixed and the notice is given prior to the effective date, the record date shall be the close of business on the day next preceding the day on which
the notice is given.
(e) Within 120 days after the effective date of the merger or consolidation, the surviving or resulting
corporation or any stockholder who has complied with subsections (a) and (d) of this section hereof and who is otherwise entitled to appraisal rights, may commence an appraisal proceeding by filing a petition in the Court of
Chancery demanding a determination of the value of the stock of all such stockholders. Notwithstanding the foregoing, at any time within 60 days after the effective date of the merger or consolidation, any stockholder who has not commenced an
appraisal proceeding or joined that proceeding as a named party shall have the right to withdraw such stockholders demand for appraisal and to accept the terms offered upon the merger or consolidation. Within 120 days after the effective
date of the merger or consolidation, any stockholder who has complied with the requirements of subsections (a) and (d) of this section hereof, upon written request, shall be entitled to receive from the corporation surviving the
merger or resulting from the consolidation a statement setting forth the aggregate number of shares not voted in favor of the merger or consolidation and with respect to which demands for appraisal have been received and the aggregate number of
holders of such shares. Such written statement shall be mailed to the stockholder within 10 days after such stockholders written request for such a statement is received by the surviving or resulting corporation or within 10 days
after expiration of the period for delivery of demands for appraisal under subsection (d) of this section hereof, whichever is later. Notwithstanding subsection (a) of this section, a person who is the beneficial owner of
shares of such stock held either in a voting trust or by a nominee on behalf of such person may, in such persons own name, file a petition or request from the corporation the statement described in this subsection.
(f) Upon the filing of any such petition by a stockholder, service of a copy thereof shall be made upon the surviving or resulting
corporation, which shall within 20 days after such service file in the office of the Register in Chancery in which the petition was filed a duly verified list containing the names and addresses of all stockholders who have demanded payment for
their shares and with whom agreements as to the value of their shares have not been reached by the surviving or resulting corporation. If the petition shall be filed by the surviving or resulting corporation, the petition shall be accompanied by
such a duly verified list. The Register in Chancery, if so ordered by the Court, shall give notice of the time and place fixed for the hearing of such petition by registered or certified mail to the surviving or resulting corporation and to the
stockholders shown on the list at the addresses therein stated. Such notice shall also be given by 1 or more publications at least 1 week before the day of the hearing, in a newspaper of general circulation published in the City of Wilmington,
Delaware or such publication as the Court deems advisable. The forms of the notices by mail and by publication shall be approved by the Court, and the costs thereof shall be borne by the surviving or resulting corporation.
(g) At the hearing on such petition, the Court shall determine the stockholders who have complied with this section and who have
become entitled to appraisal rights. The Court may require the stockholders who have demanded an appraisal for their shares and who hold stock represented by certificates to submit their certificates of stock to the Register in Chancery for notation
thereon of the pendency of the appraisal proceedings; and if any stockholder fails to comply with such direction, the Court may dismiss the proceedings as to such stockholder. If immediately before the merger or consolidation the shares of the class
or series of stock of the constituent corporation as to which appraisal rights are available were listed on a national securities exchange, the Court shall dismiss the proceedings as to all holders of such shares who are otherwise entitled to
appraisal rights unless
C-3
(1) the total number of shares entitled to appraisal exceeds 1% of the outstanding shares of the class or series eligible for appraisal, (2) the value of the consideration provided in
the merger or consolidation for such total number of shares exceeds $1 million, or (3) the merger was approved pursuant to § 253 or § 267 of this title.
(h) After the Court determines the stockholders entitled to an appraisal, the appraisal proceeding shall be conducted in accordance with
the rules of the Court of Chancery, including any rules specifically governing appraisal proceedings. Through such proceeding the Court shall determine the fair value of the shares exclusive of any element of value arising from the accomplishment or
expectation of the merger or consolidation, together with interest, if any, to be paid upon the amount determined to be the fair value. In determining such fair value, the Court shall take into account all relevant factors. Unless the Court in its
discretion determines otherwise for good cause shown, and except as provided in this subsection, interest from the effective date of the merger through the date of payment of the judgment shall be compounded quarterly and shall accrue at 5% over the
Federal Reserve discount rate (including any surcharge) as established from time to time during the period between the effective date of the merger and the date of payment of the judgment. At any time before the entry of judgment in the proceedings,
the surviving corporation may pay to each stockholder entitled to appraisal an amount in cash, in which case interest shall accrue thereafter as provided herein only upon the sum of (1) the difference, if any, between the amount so paid and the
fair value of the shares as determined by the Court, and (2) interest theretofore accrued, unless paid at that time. Upon application by the surviving or resulting corporation or by any stockholder entitled to participate in the appraisal
proceeding, the Court may, in its discretion, proceed to trial upon the appraisal prior to the final determination of the stockholders entitled to an appraisal. Any stockholder whose name appears on the list filed by the surviving or resulting
corporation pursuant to subsection (f) of this section and who has submitted such stockholders certificates of stock to the Register in Chancery, if such is required, may participate fully in all proceedings until it is finally
determined that such stockholder is not entitled to appraisal rights under this section.
(i) The Court shall direct the payment of
the fair value of the shares, together with interest, if any, by the surviving or resulting corporation to the stockholders entitled thereto. Payment shall be so made to each such stockholder, in the case of holders of uncertificated stock
forthwith, and the case of holders of shares represented by certificates upon the surrender to the corporation of the certificates representing such stock. The Courts decree may be enforced as other decrees in the Court of Chancery may be
enforced, whether such surviving or resulting corporation be a corporation of this State or of any state.
(j) The costs of the
proceeding may be determined by the Court and taxed upon the parties as the Court deems equitable in the circumstances. Upon application of a stockholder, the Court may order all or a portion of the expenses incurred by any stockholder in connection
with the appraisal proceeding, including, without limitation, reasonable attorneys fees and the fees and expenses of experts, to be charged pro rata against the value of all the shares entitled to an appraisal.
(k) From and after the effective date of the merger or consolidation, no stockholder who has demanded appraisal rights as provided in
subsection (d) of this section shall be entitled to vote such stock for any purpose or to receive payment of dividends or other distributions on the stock (except dividends or other distributions payable to stockholders of record at a
date which is prior to the effective date of the merger or consolidation); provided, however, that if no petition for an appraisal shall be filed within the time provided in subsection (e) of this section, or if such stockholder shall deliver
to the surviving or resulting corporation a written withdrawal of such stockholders demand for an appraisal and an acceptance of the merger or consolidation, either within 60 days after the effective date of the merger or consolidation as
provided in subsection (e) of this section or thereafter with the written approval of the corporation, then the right of such stockholder to an appraisal shall cease. Notwithstanding the foregoing, no appraisal proceeding in the Court of
Chancery shall be dismissed as to any stockholder without the approval of the Court, and such approval may be conditioned upon such terms as the Court deems just; provided, however that this provision shall not affect the right of any stockholder
who has not commenced an appraisal proceeding or joined that proceeding as a named party to withdraw such stockholders demand for appraisal and to accept the terms offered upon the merger or consolidation within 60 days after the
effective date of the merger or consolidation, as set forth in subsection (e) of this section.
C-4
(l) The shares of the surviving or resulting corporation to which the shares of such
objecting stockholders would have been converted had they assented to the merger or consolidation shall have the status of authorized and unissued shares of the surviving or resulting corporation.
C-5
ANNEX D-1
EXECUTION VERSION
VOTING AGREEMENT
This VOTING AGREEMENT (this
Agreement
), dated as of May 9, 2017, is entered into by and
among Thomas H. Lee Equity Fund VI, L.P., Thomas H. Lee Parallel Fund VI, L.P., Thomas H. Lee Parallel (DT) Fund VI, L.P., THL Coinvestment Partners, L.P., THL Equity Fund VI Investors (West), L.P., THL Equity Fund VI Investors (West) HL, L.P.,
Putnam Investment Holdings, LLC and Putnam Investments Employees Securities Company III LLC (collectively the
Covered Stockholders
, and each, a
Covered Stockholder
), Mount Olympus Holdings, Inc., a
Delaware corporation (
Parent
), and Olympus Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (
Sub
). The Covered Stockholders, Parent and Sub are sometimes referred to individually
as a
Party
and collectively as the
Parties
.
RECITALS
A. Each Covered Stockholder is a stockholder of West Corporation, a Delaware corporation (the
Company
).
B. Concurrently with the execution and delivery of this Agreement, Parent, Sub and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended or otherwise modified in accordance with its terms after the date hereof, the
Merger Agreement
), providing, among other things, for the merger of Sub with and into
the Company (the
Merger
), with the Company surviving the Merger as a wholly owned Subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement.
C. As of the date hereof, the Existing Shares (as defined herein) set forth opposite each Covered Stockholders name on
Schedule 1(a)
attached hereto are beneficially owned by such Covered Stockholder.
D. As a condition and inducement to the
willingness of Parent and Sub to enter into the Merger Agreement, the Covered Stockholders have agreed to enter into this Agreement.
E.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the Parties agree as follows:
1.
Agreement to Vote
.
(a)
Voting
. During the Term (as defined herein), at any meeting of the stockholders of the Company (the
Stockholders
), including the Company Stockholder Meeting, however called, including at any adjournment or postponement thereof, or in connection with any written consent of the Stockholders, each Covered Stockholder shall
(i) vote (or cause to be voted) all of its Covered Shares as of the applicable record date so that all of such Covered Shares are duly counted for purposes of determining whether a quorum is present and (ii) vote (or cause to be voted) all
of its Covered Shares as of the applicable record date (A) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger (including in favor of the Company Stockholder Approval),
(B) in favor of any proposal to adjourn or postpone such meeting of the Stockholders to a later date if there are not sufficient votes to adopt the Merger Agreement
D-1-1
and (C) against: (1) any action or proposal in favor of a Competing Proposal (without regard to the terms of such Competing Proposal), and (2) any action, proposal, transaction or
agreement that would prevent or materially delay, or would reasonably be expected to prevent or materially delay, the consummation of the transactions contemplated by the Merger Agreement, including the Merger.
(b)
Grant of Irrevocable Proxy
. Each Covered Stockholder hereby irrevocably appoints Parent and any person designated in writing by
Parent, and each of them individually, as such Covered Stockholders proxy and
attorney-in-fact,
with full power of substitution and resubstitution, to vote at any
meeting of the Stockholders (including the Company Stockholder Meeting), however called, including at any adjournment or postponement thereof, or in connection with any written consent of the Stockholders, in each case, at which any of the matters
described in
Section 1(a)
is to be considered during the Term, with respect to the Covered Shares as of the applicable record date, in each case solely to the extent and in the manner specified in
Section 1(a)
;
provided
,
however
, that such Covered Stockholders grant of the proxy contemplated by this
Section 1(b)
shall be effective if, and only if, such Covered Stockholder has not delivered to the Secretary of the Company, at least two
(2) Business Days prior to the applicable meeting or deadline for action by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing that the Covered Shares be voted in accordance with
Section 1(a)
. This proxy, if it becomes effective, is given to secure the performance of the duties of such Covered Stockholder under this Agreement, and its existence will not be deemed to relieve such Stockholder of its obligations under
Section 1(a)
. This proxy shall expire and be deemed revoked and terminated automatically at the expiration of the Term.
2.
No
Transfers or Solicitation
.
(a)
Restrictions on Transfers
. Each Covered Stockholder hereby agrees, during the Term, not to,
directly or indirectly, (i) sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to, the sale, transfer, pledge, encumbrance, assignment or other
disposition of, or limitation on the voting rights of, any of the Covered Shares of such Covered Stockholder (any such action, a
Transfer
), (ii) except as otherwise provided in
Section 1(b)
, grant any proxies or powers of
attorney with respect to the Covered Shares of such Covered Stockholder, deposit any such Covered Shares into a voting trust or enter into a voting agreement with respect to any such Covered Shares, in each case with respect to any vote on the
approval and adoption of the Merger Agreement or any other matters set forth in Section 1(a) of this Agreement or (iii) commit or agree to take any of the foregoing actions during the Term; provided that, notwithstanding the foregoing, the
following Transfers are permitted: (A) Transfers of Covered Shares to any person who has agreed in writing (the form and substance of which is reasonably acceptable to Parent) to be bound by the terms of this Agreement, (B) Transfers of
Covered Shares with Parents prior written consent and (C) Transfers of Covered Shares after the receipt of the Company Stockholder Approval.
(b)
No Solicitation, Discussion or Negotiation
. During the Term of this Agreement, each Covered Stockholder shall not and shall cause
each of its controlled affiliates not to, directly or indirectly, (i) initiate, solicit or knowingly encourage or facilitate (including by way of furnishing
non-public
information) any inquiry, proposal,
indication of interest or offer which constitutes, or would reasonably be expected to lead to, the submission of any Competing Proposal, (ii) furnish any
non-public
information regarding the Company or
any Company Subsidiary to any third person in connection with or in response to a Competing Proposal, (iii) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with any third person with
respect to, any Competing Proposal, (iv) approve or recommend, or propose to approve or recommend, a Competing Proposal, (v) enter into any Contract with any person subsequent to the date of this Agreement that prohibits the Company from
complying with its obligations under
Section 5.03
of the Merger Agreement (without giving effect to any amendment or modification of such provision after the date of this Agreement) or (vi) agree to do any of the foregoing;
provided
,
however
, that, notwithstanding the foregoing, each Covered Stockholder or affiliate thereof may participate in discussions or negotiations with any person regarding a Competing Proposal if, and solely to the extent that, the
Company is permitted to engage in discussions or negotiations with such person regarding such Competing Proposal pursuant to the Merger Agreement, in each
D-1-2
case pursuant to the terms and conditions of
Section 5.03
of the Merger Agreement (without giving effect to any amendment or modification of such provision after the date of this
Agreement).
3.
No Limitations on Actions
. Parent expressly acknowledges that each Covered Stockholder is entering into this
Agreement solely in its capacity as the beneficial owner of the applicable Covered Shares, and this Agreement shall not limit or otherwise affect the actions or exercise of fiduciary duties of such Covered Stockholder, or any representative,
affiliate, trustee, beneficiary, settlor, employee or designee of such Covered Stockholder or any of its affiliates in its capacity, if applicable, as a director or officer of the Company.
4.
Additional Agreements
.
(a)
Certain Events
. In the event of any dividend, subdivision, reclassification, recapitalization, stock split (including a reverse
stock split),
split-up,
distribution, combination, exchange of shares, readjustment or other similar transaction or other change in the capital structure of the Company affecting the Covered Shares or the
acquisition of Additional Owned Shares (as defined in
Section 8(l)
of this Agreement) by a Covered Stockholder, (i) the type and number of Covered Shares shall be adjusted appropriately to reflect the effect of such occurrence and
(ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares issued to or acquired by a Covered Stockholder;
provided
, that nothing in this
Section 4(a)
shall be construed to permit
or require the Covered Stockholders to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
(b)
Commencement or Participation in Actions
. Each Covered Stockholder hereby agrees not to commence or join in, and to take all
actions necessary to opt out of, any class in any class action with respect to, any Transaction Litigation, including any claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the
Merger Agreement, (ii) alleging a breach of any fiduciary duty of the Company or the Company Board or its members in connection with the Merger Agreement or the transactions contemplated hereby or thereby or (iii) seeking to exercise any
statutory rights (including under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Covered Shares that may arise in connection with the Merger or the Merger Agreement.
(c)
Appraisal Rights or Rights of Dissent
. Each Covered Stockholder hereby irrevocably waives, and agrees not to exercise, any rights
of appraisal or rights of dissent from the Merger that such Covered Stockholder may have with respect to the Covered Shares.
(d)
Publication and Disclosure
. Each Covered Stockholder hereby agrees to permit the Company and Parent to publish and disclose, including in filings with the SEC and in the press release announcing the transactions contemplated by the Merger
Agreement, this Agreement and such Covered Stockholders identity and ownership of the Covered Shares and the nature of such Covered Stockholders commitments, arrangements and understandings under this Agreement.
(e)
Further Assurances
. From time to time, upon prior notice and at the reasonable request of Parent, each Covered Stockholder shall
execute and deliver such additional documents and take all such further action as may be reasonably necessary or appropriate to comply with its obligations under this Agreement.
5.
Representations and Warranties of the Covered Stockholder
. Each Covered Stockholder represents and warrants to Parent and Sub as to
itself as follows:
(a)
Title
. Such Covered Stockholder owns of record or beneficially its Existing Shares (as set forth opposite
such Covered Stockholders name on
Schedule 1(a)
attached hereto). The Existing Shares set forth opposite such Covered Stockholders name on
Schedule 1(a)
attached hereto constitute all of the Shares owned of record or
beneficially by such Covered Stockholder on the date hereof. Such Covered Stockholder has voting power with respect to all of its Covered Shares, and none of such Covered Stockholders Covered Shares are subject to any
D-1-3
voting trust, proxy, voting restriction, adverse claim or other arrangement with respect to the voting of such Covered Shares, except as contemplated by this Agreement or as disclosed in
Schedule 5(a)
attached hereto. Except as permitted or required by this Agreement and except as disclosed in
Schedule 5(a)
attached hereto, the Covered Shares of such Covered Stockholder (and the certificates representing such
Covered Shares, if any) are now free and clear of any and all Liens whatsoever on title, or restrictions on transfer (other than under applicable securities Laws and as created by this Agreement).
(b)
Organization and Qualification
. If such Covered Stockholder is not an individual, such Covered Stockholder is a legal entity duly
formed or organized (as applicable), validly existing and in good standing under the Laws of the jurisdiction in which it is formed or organized, as applicable.
(c)
Authority
. If such Covered Stockholder is an individual, he or she has full legal capacity, right and authority to execute and
deliver this Agreement and to perform his or her obligations hereunder and consummate the transactions contemplated hereby, and if such Covered Stockholder is not an individual, such Covered Stockholder has all necessary power and authority and has
taken all action necessary in order to execute and deliver this Agreement and perform all of such Covered Stockholders obligations under this Agreement and consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of such Covered Stockholder, or its board of directors or managers, general partner or other entity, governing body or person, are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(d)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by, or on
behalf of, such Covered Stockholder and, assuming due authorization, execution and delivery of this Agreement by Parent and Sub, constitutes a legal, valid and binding obligation of such Covered Stockholder, enforceable against such Covered
Stockholder in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(e)
No
Conflicts
. The execution and delivery of this Agreement by such Covered Stockholder does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws
or agreements binding upon such Covered Stockholder or such Covered Stockholders Covered Shares, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by
such Covered Stockholder or any of its affiliates required by the rules and regulations promulgated under the Exchange Act or as would not impact such Covered Stockholders ability to perform or comply with its obligations under this Agreement
in any material respect.
6.
Representations and Warranties of Parent and Sub
. Parent and Sub jointly and severally represent and
warrant to the Covered Stockholders as follows:
(a)
Organization and Qualification
. Each of Parent and Sub is duly organized,
validly existing and in good standing under the Laws of the State of Delaware.
(b)
Authority
. Parent and Sub have the requisite
power and authority and have taken all action necessary in order to execute and deliver this Agreement, to perform their respective obligations hereunder and to consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of Parent or Sub or either of its board of directors or managers, general partner or other entity, governing body or person are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(c)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by Parent
and Sub, and assuming due authorization, execution and delivery of this Agreement by the other Parties hereto, constitutes a legal, valid and binding obligation of each of Parent and Sub, enforceable against each of Parent and Sub in accordance with
its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
D-1-4
(d)
No Conflicts
. The execution and delivery of this Agreement by Parent and Sub does
not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws or agreements binding upon Parent or Sub, nor require any authorization, consent or approval
of, or filing with, any Governmental Entity, except in each case for filings with the SEC by Parent or Sub required by the rules and regulations promulgated under the Exchange Act or as would not impact Parents or Subs ability to perform
or comply with its obligations under this Agreement in any material respect.
7.
Termination
.
(a)
Term
. The term of this Agreement (
Term
) and all rights and obligations of the Parties hereunder shall commence
on the date hereof and shall immediately terminate and expire upon the earliest of, without the need for any further action by any person, (i) the mutual written agreement of the Parties; (ii) the consummation of the Merger; (iii) the
entry without the prior written consent of the Covered Stockholders into any amendment, modification or waiver of any provision of the Merger Agreement (A) that reduces the amount, or modifies the form, of the Merger Consideration payable to
any of the stockholders of the Company (other than adjustments in accordance with the terms of the Merger Agreement), (B) that amends or modifies any of the closing conditions in a manner that would reasonably be expected to prevent or materially
delay the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or (C) that is in any way material and adverse, or adverse from a financial standpoint, to any of the Covered Stockholders; (iv) the
termination of the Merger Agreement pursuant to and in compliance with the terms therein; (v) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to a
Competing Proposal; and (vi) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to an Intervening Event.
(b)
Survival of Certain Provisions
. In the event of termination of this Agreement pursuant to
Section 7(a)
, this Agreement shall
become void and of no effect with no liability on the part of any Party hereto;
provided
,
however
, no such termination shall relieve the Covered Stockholders from any liability for any willful breach of this Agreement or any of the
Parties from any liability for fraud, in each case occurring prior to such termination and the provisions of this
Article 7
and
Article 8
shall survive any such termination.
8.
Miscellaneous
.
(a)
Notices
. Any notice required to be given hereunder will be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business
Day after 5:00 p.m. (addressees local time) will be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by electronic mail (but only if followed by an overnight delivery service (with
proof of service) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
If to Parent or Sub, to:
Mount
Olympus Holdings, Inc.
c/o Apollo Management VIII, L.P.
9 West 57
th
Street
Fax: (646)
607-0546
Attention: Matthew Nord
Robert Kalsow-Ramos
with a copy (which will not constitute notice but will be required for proper notice to be given) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York,
New York 10019
D-1-5
Telephone:
(212) 403-1000
Fax:
(212) 403-2000
Attention: Andrew J. Nussbaum and Karessa L. Cain
Email: AJNussbaum@wlrk.com and KLCain@wlrk.com
If to a Covered Stockholder:
c/o Thomas H. Lee Partners, L.P.
100 Federal Street
Boston, MA
02110
Attention: General Counsel
Fax: (617)
227-3514
with copies (which will not constitute notice but will be required for proper notice to be given) to:
Weil, Gotshal & Manges LLP
767 Fifth Avenue
New York, New
York 10153-0119
Attention: Michael J. Aiello
Fax: (212)
310-8007
E-mail:
michael.aiello@weil.com
or to such other address as any Party will specify by written notice so given, and such notice will be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed. Any Party to this Agreement may notify any other Party of any changes to the address or any of the other details specified in this paragraph;
provided
,
however
, that such notification
will be effective solely as to such notified Party if in writing and only on the date specified in such notice or two (2) Business Days after the notice is given, whichever is later. The failure of any Party to give notice will not relieve any
other Party of its obligations under this Agreement except to the extent that such other Party is actually prejudiced by such failure to give notice.
(b)
Interpretation
.
(i) When a reference is made in this Agreement to Sections or Exhibits, such reference will be to a Section of or Exhibit to
this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will 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 will be deemed to be followed by the words without limitation. Unless the context otherwise requires, (i) or is disjunctive but not
necessarily exclusive, (ii) words in the singular include the plural and vice versa, and (iii) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. A
day means a calendar day unless specified as a Business Day. Except as otherwise expressly provided elsewhere in this Agreement, for any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party,
such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
(ii) The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a
question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of
this Agreement.
(c)
Counterparts
. This Agreement may be executed in two or more counterparts, all of which will be considered one
and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that each Party need not sign the same counterpart.
D-1-6
(d)
Entire Agreement; Third Party Beneficiaries
. This Agreement (including the
schedules and exhibits referred to in this Agreement) (i) constitutes the entire agreement and supersedes and cancels all prior and contemporaneous agreements and understandings, both written and oral, express or implied, among the Parties with
respect to the subject matter of this Agreement and (ii) is not intended to, and does not, confer upon any person any rights or remedies hereunder other than the Parties and their respective successors and permitted assigns.
(e)
Amendment
. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
(f)
Extension; Waiver
. Any agreement on the part of a Party to (i) extend the time for the performance of any of the obligations
or other acts of another Party or (ii) waive (A) any inaccuracies in the representations and warranties contained in this Agreement or (B) compliance with any of the agreements or conditions contained in this Agreement, in each case,
will be valid only if set forth in a written instrument signed on behalf of such Party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition will not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
(g)
Governing Law; Jurisdiction, Enforcement
. This Agreement will be
governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law 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. In addition, each of the Parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for
recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by any Party hereto or its successors or permitted assigns, will be brought and determined exclusively in the Delaware
Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of
the Parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not
bring any action relating to this Agreement or any of the Transactions in any court other than the aforesaid courts. Each of the Parties hereto by this Agreement irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance
with this Section 8(g), (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient
forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(h)
Waiver of Jury Trial
. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
CONTAINED IN THIS
SECTION 8(h)
.
(i)
Assignment
. Neither this Agreement nor any of the rights, interests or obligations
hereunder will be assigned by any of the Parties hereto (whether by sale of stock, operation of law, in connection with a merger or sale of substantially all of the assets, or otherwise) without the prior written consent of the other Parties, and
any attempt to do so will be null and void, except that any Covered Stockholder may assign all or any of its rights and obligations hereunder to any of its affiliates;
provided
,
however
, that no such assignment shall relieve the
D-1-7
assigning party of its obligations hereunder if such assignee does not perform such obligations. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of,
and be enforceable by, the Parties hereto and their respective successors and permitted assigns.
(j)
Severability
. Any term or
provision of this Agreement which is invalid or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of
such term or provision and the remaining terms and provisions of this Agreement in any jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision will be interpreted to be only so broad as to be enforceable.
(k)
No Ownership Interest
. Nothing contained in this Agreement shall be deemed, upon execution or otherwise, to vest in Parent any
direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Covered Stockholders, and
Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Covered Stockholders in the voting of, or
otherwise with respect to, any of the Covered Shares, except as otherwise provided herein.
(l)
Certain Definitions
. For the
purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement. Certain other terms have the meanings ascribed to them below or elsewhere in this
Agreement.
Additional Owned Shares
means, with respect to a Covered Stockholder, all such Shares that
are owned of record or beneficially by such Covered Stockholder and acquired after the date hereof (including any Shares acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options to acquire Shares or
warrants or the conversion of any convertible securities or otherwise).
affiliate
has the meaning set
forth in the Merger Agreement;
provided
,
however
, that for purposes of this Agreement, none of the Company or the Company Subsidiaries (or any of their respective officers or directors) shall constitute an affiliate of any Covered
Stockholder.
beneficial ownership
(and related terms such as beneficially owned or
beneficial owner) has the meaning set forth in
Rule 13d-3
under the Exchange Act.
Covered Shares
means, with respect to a Covered Stockholder, the Existing Shares and Additional Owned
Shares.
Existing Shares
of a Covered Stockholder means the Shares that are owned of record or
beneficially owned by the specified Covered Stockholder as of the date hereof, as set forth opposite such Covered Stockholders name on
Schedule
1(a)
hereto.
(m)
Remedies
. The Parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in addition to any other
remedy to which they are entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.
(n)
Facsimile Signatures
. A signature page to this Agreement, the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, that contains a copy of a Partys signature and that is sent by such Party or its agent with the apparent intention (as
reasonably evidenced by the actions of such Party or its agent) that it constitute such Partys execution and delivery of this Agreement or any such other document, including a document sent by means of a facsimile machine or electronic
transmission in portable document format (pdf), will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person.
D-1-8
IN WITNESS WHEREOF, Parent, Sub and the Covered Stockholders have caused this Agreement to
be duly executed as of the day and year first above written.
|
|
|
MOUNT OLYMPUS HOLDINGS, INC.
|
|
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
|
OLYMPUS MERGER SUB, INC.
|
|
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-9
|
|
|
Covered Stockholders
THOMAS H. LEE EQUITY FUND VI, L.P.
|
|
|
By:
|
|
THL Equity Advisors VI, LLC, its general partner
|
By:
|
|
Thomas H. Lee Partners, L.P., its sole member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its general partner
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-10
|
|
|
THOMAS H. LEE PARALLEL FUND VI, L.P.
|
|
|
By:
|
|
THL Equity Advisors VI, LLC, its general partner
|
By:
|
|
Thomas H. Lee Partners, L.P., its sole member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its general partner
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-11
|
|
|
THOMAS H. LEE PARALLEL (DT) FUND VI, L.P.
|
|
|
By:
|
|
THL Equity Advisors VI, LLC, its general partner
|
By:
|
|
Thomas H. Lee Partners, L.P., its sole member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its general partner
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-12
|
|
|
THL COINVESTMENT PARTNERS, L.P.
|
|
|
By:
|
|
Thomas H. Lee Partners, L.P., its general partner
|
By:
|
|
Thomas H. Lee Advisors, LLC, its general partner
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-13
|
|
|
THL EQUITY FUND VI INVESTORS (WEST), L.P.
|
|
|
By:
|
|
THL Equity Advisors VI, LLC, its general partner
|
By:
|
|
Thomas H. Lee Partners, L.P., its sole member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its general partner
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-14
|
|
|
THL EQUITY FUND VI INVESTORS (WEST) HL, L.P.
|
|
|
By:
|
|
THL Equity Advisors VI, LLC, its general partner
|
By:
|
|
Thomas H. Lee Partners, L.P., its sole member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its general partner
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-15
|
|
|
PUTNAM INVESTMENT HOLDINGS, LLC
|
|
|
By:
|
|
Putnam Investments, LLC, its managing member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its
attorney-in-fact
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-16
|
|
|
PUTNAM INVESTMENTS EMPLOYEES SECURITIES COMPANY III LLC
|
|
|
By:
|
|
Putnam Investment Holdings, LLC, its managing member
|
By:
|
|
Putnam Investments, LLC, its managing member
|
By:
|
|
Thomas H. Lee Advisors, LLC, its
attorney-in-fact
|
By:
|
|
THL Holdco, LLC, its managing member
|
|
|
By:
|
|
/s/ Charles P. Holden
|
|
|
Name: Charles P. Holden
|
|
|
Title: Managing Director
|
[Signature Page to Voting AgreementThomas H. Lee Partners, L.P.]
D-1-17
Schedule 1(a)
|
|
|
|
|
Covered Stockholder
|
|
Existing Shares
|
|
Thomas H. Lee Equity Fund VI, L.P.
|
|
|
7,532,661
|
|
Thomas H. Lee Parallel Fund VI, L.P.
|
|
|
5,100,718
|
|
Thomas H. Lee Parallel (DT) Fund VI, L.P.
|
|
|
890,993
|
|
THL Coinvestment Partners, L.P.
|
|
|
13,820
|
|
THL Equity Fund VI Investors (West), L.P.
|
|
|
3,955,934
|
|
THL Equity Fund VI Investors (West) HL, L.P.
|
|
|
605,113
|
|
Putnam Investment Holdings, LLC
|
|
|
38,444
|
|
Putnam Investments Employees Securities Company III LLC
|
|
|
38,430
|
|
|
|
|
|
|
Total
|
|
|
18,176,113
|
|
|
|
|
|
|
D-1-18
Schedule 5(a)
1.
|
Amended and Restated Stockholder Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.65 to Amendment No. 12
to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
2.
|
Amended and Restated Registration Rights and Coordination Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.63
to Amendment No. 12 to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
3.
|
Letter Agreement, dated as of June 24, 2013, by and among the Company and the THL Investors (filed as Exhibit 10.26 to the Companys Form
10-K
filed on February 20,
2014 (File
No. 001-35846)).
|
D-1-19
ANNEX D-2
EXECUTION VERSION
VOTING AGREEMENT
This
VOTING AGREEMENT (this
Agreement
), dated as of May 9, 2017, is entered into by and among Quadrangle Capital Partners II LP, Quadrangle Select Partners II LP, Quadrangle Capital Partners
II-A
LP (collectively the
Covered Stockholders
, and each, a
Covered Stockholder
), Mount Olympus Holdings, Inc., a Delaware corporation (
Parent
), and
Olympus Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (
Sub
). The Covered Stockholders, Parent and Sub are sometimes referred to individually as a
Party
and collectively as the
Parties
.
RECITALS
A. Each Covered Stockholder is a stockholder of West Corporation, a Delaware corporation (the
Company
).
B. Concurrently with the execution and delivery of this Agreement, Parent, Sub and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended or otherwise modified in accordance with its terms after the date hereof, the
Merger Agreement
), providing, among other things, for the merger of Sub with and into
the Company (the
Merger
), with the Company surviving the Merger as a wholly owned Subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement.
C. As of the date hereof, the Existing Shares (as defined herein) set forth opposite each Covered Stockholders name on
Schedule 1(a)
attached hereto are beneficially owned by such Covered Stockholder.
D. As a condition and inducement to the
willingness of Parent and Sub to enter into the Merger Agreement, the Covered Stockholders have agreed to enter into this Agreement.
E.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the Parties agree as follows:
1.
Agreement to Vote
.
(a)
Voting
. During the Term (as defined herein), at any meeting of the stockholders of the Company (the
Stockholders
), including the Company Stockholder Meeting, however called, including at any adjournment or postponement thereof, or in connection with any written consent of the Stockholders, each Covered Stockholder shall
(i) vote (or cause to be voted) all of its Covered Shares as of the applicable record date so that all of such Covered Shares are duly counted for purposes of determining whether a quorum is present and (ii) vote (or cause to be voted) all
of its Covered Shares as of the applicable record date (A) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger (including in favor of the Company Stockholder Approval),
(B) in favor of any proposal to adjourn or postpone such meeting of the Stockholders to a later date if there are not sufficient votes to adopt the Merger Agreement and (C) against: (1) any action or proposal in favor of a Competing
Proposal (without regard to the terms of such Competing Proposal), and (2) any action, proposal, transaction or agreement that would prevent or materially delay, or would reasonably be expected to prevent or materially delay, the consummation
of the transactions contemplated by the Merger Agreement, including the Merger.
D-2-1
(b)
Grant of Irrevocable Proxy
. Each Covered Stockholder hereby irrevocably appoints
Parent and any person designated in writing by Parent, and each of them individually, as such Covered Stockholders proxy and
attorney-in-fact,
with full power of
substitution and resubstitution, to vote at any meeting of the Stockholders (including the Company Stockholder Meeting), however called, including at any adjournment or postponement thereof, or in connection with any written consent of the
Stockholders, in each case, at which any of the matters described in
Section 1(a)
is to be considered during the Term, with respect to the Covered Shares as of the applicable record date, in each case solely to the extent and in the manner
specified in
Section 1(a)
;
provided
,
however
, that such Covered Stockholders grant of the proxy contemplated by this
Section 1(b)
shall be effective if, and only if, such Covered Stockholder has not delivered to the
Secretary of the Company, at least two (2) Business Days prior to the applicable meeting or deadline for action by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing that the
Covered Shares be voted in accordance with
Section 1(a)
. This proxy, if it becomes effective, is given to secure the performance of the duties of such Covered Stockholder under this Agreement, and its existence will not be deemed to relieve
such Stockholder of its obligations under
Section 1(a)
. This proxy shall expire and be deemed revoked and terminated automatically at the expiration of the Term.
2.
No Transfers or Solicitation
.
(a)
Restrictions on Transfers
. Each Covered Stockholder hereby agrees, during the Term, not to, directly or indirectly, (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to, the sale, transfer, pledge, encumbrance, assignment or other disposition of, or limitation on the
voting rights of, any of the Covered Shares of such Covered Stockholder (any such action, a
Transfer
), (ii) except as otherwise provided in
Section 1(b)
, grant any proxies or powers of attorney with respect to the Covered
Shares of such Covered Stockholder, deposit any such Covered Shares into a voting trust or enter into a voting agreement with respect to any such Covered Shares, in each case with respect to any vote on the approval and adoption of the Merger
Agreement or any other matters set forth in
Section 1(a)
of this Agreement or (iii) commit or agree to take any of the foregoing actions during the Term;
provided
that, notwithstanding the foregoing, the following Transfers are
permitted: (A) Transfers of Covered Shares to any person who has agreed in writing (the form and substance of which is reasonably acceptable to Parent) to be bound by the terms of this Agreement, (B) Transfers of Covered Shares with
Parents prior written consent and (C) Transfers of Covered Shares after the receipt of the Company Stockholder Approval.
(b)
No Solicitation, Discussion or Negotiation
. During the Term of this Agreement, each Covered Stockholder shall not and shall cause each of its controlled affiliates not to, directly or indirectly, (i) initiate, solicit or knowingly
encourage or facilitate (including by way of furnishing
non-public
information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the
submission of any Competing Proposal, (ii) furnish any
non-public
information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal,
(iii) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with any third person with respect to, any Competing Proposal, (iv) approve or recommend, or propose to approve or recommend, a
Competing Proposal, (v) enter into any Contract with any person subsequent to the date of this Agreement that prohibits the Company from complying with its obligations under
Section 5.03
of the Merger Agreement (without giving
effect to any amendment or modification of such provision after the date of this Agreement) or (vi) agree to do any of the foregoing;
provided
,
however
, that, notwithstanding the foregoing, each Covered Stockholder or affiliate
thereof may participate in discussions or negotiations with any person regarding a Competing Proposal if, and solely to the extent that, the Company is permitted to engage in discussions or negotiations with such person regarding such Competing
Proposal pursuant to the Merger Agreement, in each case pursuant to the terms and conditions of
Section 5.03
of the Merger Agreement (without giving effect to any amendment or modification of such provision after the date of this
Agreement).
3.
No Limitations on Actions
. Parent expressly acknowledges that each Covered Stockholder is entering into this
Agreement solely in its capacity as the beneficial owner of the applicable Covered Shares, and this Agreement
D-2-2
shall not limit or otherwise affect the actions or exercise of fiduciary duties of such Covered Stockholder, or any representative, affiliate, trustee, beneficiary, settlor, employee or designee
of such Covered Stockholder or any of its affiliates in its capacity, if applicable, as a director or officer of the Company.
4.
Additional Agreements
.
(a)
Certain Events
. In the event of any dividend, subdivision, reclassification, recapitalization,
stock split (including a reverse stock split),
split-up,
distribution, combination, exchange of shares, readjustment or other similar transaction or other change in the capital structure of the Company
affecting the Covered Shares or the acquisition of Additional Owned Shares (as defined in
Section 8(l)
of this Agreement) by a Covered Stockholder, (i) the type and number of Covered Shares shall be adjusted appropriately to reflect
the effect of such occurrence and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares issued to or acquired by a Covered Stockholder;
provided
, that nothing in this
Section
4(a)
shall be construed to permit or require the Covered Stockholders to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
(b)
Commencement or Participation in Actions
. Each Covered Stockholder hereby agrees not to commence or join in, and to take all
actions necessary to opt out of, any class in any class action with respect to, any Transaction Litigation, including any claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the
Merger Agreement, (ii) alleging a breach of any fiduciary duty of the Company or the Company Board or its members in connection with the Merger Agreement or the transactions contemplated hereby or thereby or (iii) seeking to exercise any
statutory rights (including under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Covered Shares that may arise in connection with the Merger or the Merger Agreement.
(c)
Appraisal Rights or Rights of Dissent
. Each Covered Stockholder hereby irrevocably waives, and agrees not to exercise, any rights
of appraisal or rights of dissent from the Merger that such Covered Stockholder may have with respect to the Covered Shares.
(d)
Publication and Disclosure
. Each Covered Stockholder hereby agrees to permit the Company and Parent to publish and disclose, including in filings with the SEC and in the press release announcing the transactions contemplated by the Merger
Agreement, this Agreement and such Covered Stockholders identity and ownership of the Covered Shares and the nature of such Covered Stockholders commitments, arrangements and understandings under this Agreement. (e)
Further
Assurances
. From time to time, upon prior notice and at the reasonable request of Parent, each Covered Stockholder shall execute and deliver such additional documents and take all such further action as may be reasonably necessary or appropriate
to comply with its obligations under this Agreement.
5.
Representations and Warranties of the Covered Stockholder
. Each Covered
Stockholder represents and warrants to Parent and Sub as to itself as follows:
(a)
Title
. Such Covered Stockholder owns of record
or beneficially its Existing Shares (as set forth opposite such Covered Stockholders name on
Schedule 1(a)
attached hereto). The Existing Shares set forth opposite such Covered Stockholders name on
Schedule 1(a)
attached hereto constitute all of the Shares owned of record or beneficially by such Covered Stockholder on the date hereof. Such Covered Stockholder has voting power with respect to all of its Covered Shares, and none of such Covered
Stockholders Covered Shares are subject to any voting trust, proxy, voting restriction, adverse claim or other arrangement with respect to the voting of such Covered Shares, except as contemplated by this Agreement or as disclosed in
Schedule 5(a)
attached hereto. Except as permitted or required by this Agreement and except as disclosed in
Schedule 5(a)
attached hereto, the Covered Shares of such Covered Stockholder (and the certificates representing such
Covered Shares, if any) are now free and clear of any and all Liens whatsoever on title, or restrictions on transfer (other than under applicable securities Laws and as created by this Agreement).
D-2-3
(b)
Organization and Qualification
. If such Covered Stockholder is not an individual,
such Covered Stockholder is a legal entity duly formed or organized (as applicable), validly existing and in good standing under the Laws of the jurisdiction in which it is formed or organized, as applicable.
(c)
Authority
. If such Covered Stockholder is an individual, he or she has full legal capacity, right and authority to execute and
deliver this Agreement and to perform his or her obligations hereunder and consummate the transactions contemplated hereby, and if such Covered Stockholder is not an individual, such Covered Stockholder has all necessary power and authority and has
taken all action necessary in order to execute and deliver this Agreement and perform all of such Covered Stockholders obligations under this Agreement and consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of such Covered Stockholder, or its board of directors or managers, general partner or other entity, governing body or person, are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(d)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by, or on
behalf of, such Covered Stockholder and, assuming due authorization, execution and delivery of this Agreement by Parent and Sub, constitutes a legal, valid and binding obligation of such Covered Stockholder, enforceable against such Covered
Stockholder in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(e)
No
Conflicts
. The execution and delivery of this Agreement by such Covered Stockholder does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws
or agreements binding upon such Covered Stockholder or such Covered Stockholders Covered Shares, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by
such Covered Stockholder or any of its affiliates required by the rules and regulations promulgated under the Exchange Act or as would not impact such Covered Stockholders ability to perform or comply with its obligations under this Agreement
in any material respect.
6.
Representations and Warranties of Parent and Sub
. Parent and Sub jointly and severally represent and
warrant to the Covered Stockholders as follows:
(a)
Organization and Qualification
. Each of Parent and Sub is duly organized,
validly existing and in good standing under the Laws of the State of Delaware.
(b)
Authority
. Parent and Sub have the requisite
power and authority and have taken all action necessary in order to execute and deliver this Agreement, to perform their respective obligations hereunder and to consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of Parent or Sub or either of its board of directors or managers, general partner or other entity, governing body or person are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(c)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by Parent
and Sub, and assuming due authorization, execution and delivery of this Agreement by the other Parties hereto, constitutes a legal, valid and binding obligation of each of Parent and Sub, enforceable against each of Parent and Sub in accordance with
its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(d)
No Conflicts
. The execution
and delivery of this Agreement by Parent and Sub does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws or agreements binding upon Parent or
Sub, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by Parent or Sub required by the rules and regulations promulgated under the Exchange Act or as would
not impact Parents or Subs ability to perform or comply with its obligations under this Agreement in any material respect.
D-2-4
7.
Termination
.
(a)
Term
. The term of this Agreement (
Term
) and all rights and obligations of the Parties hereunder shall commence
on the date hereof and shall immediately terminate and expire upon the earliest of, without the need for any further action by any person, (i) the mutual written agreement of the Parties; (ii) the consummation of the Merger; (iii) the
entry without the prior written consent of the Covered Stockholders into any amendment, modification or waiver of any provision of the Merger Agreement (A) that reduces the amount, or modifies the form, of the Merger Consideration payable to
any of the stockholders of the Company (other than adjustments in accordance with the terms of the Merger Agreement), (B) that amends or modifies any of the closing conditions in a manner that would reasonably be expected to prevent or materially
delay the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or (C) that is in any way material and adverse, or adverse from a financial standpoint, to any of the Covered Stockholders; (iv) the
termination of the Merger Agreement pursuant to and in compliance with the terms therein; (v) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to a
Competing Proposal; and (vi) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to an Intervening Event.
(b)
Survival of Certain Provisions
. In the event of termination of this Agreement pursuant to
Section 7(a)
, this Agreement shall
become void and of no effect with no liability on the part of any Party hereto;
provided
,
however
, no such termination shall relieve the Covered Stockholders from any liability for any willful breach of this Agreement or any of the
Parties from any liability for fraud, in each case occurring prior to such termination and the provisions of this
Article 7
and
Article 8
shall survive any such termination.
8.
Miscellaneous
.
(a)
Notices
. Any notice required to be given hereunder will be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business
Day after 5:00 p.m. (addressees local time) will be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by electronic mail (but only if followed by an overnight delivery service (with
proof of service) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
If to Parent or Sub, to:
Mount
Olympus Holdings, Inc.
c/o Apollo Management VIII, L.P.
9 West 57
th
Street
Fax: (646)
607-0546
Attention: Matthew Nord
Robert Kalsow-Ramos
with a copy (which will not constitute notice but will be required for proper notice to be given) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York,
New York 10019
Fax:
(212) 403-2000
Attention: Andrew J. Nussbaum and Karessa L. Cain
Email: AJNussbaum@wlrk.com and KLCain@wlrk.com
D-2-5
If to a Covered Stockholder:
Quadrangle Group LLC
On behalf
of Quadrangle Capital Partners II LP and Affiliated Entities
Attention: Michael Huber
1271 Avenue of the Americas
Suite 43A
New York NY
10020
Fax: (877)
325-0816
Email: Michael.Huber@Quadranglegroup.com
with copies (which will not constitute notice but will be required for proper notice to be given) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, New York 10019-6064
Attention: Raphael M. Russo
Fax: (212)
492-0309
Email: rrusso@paulweiss.com
or to such other
address as any Party will specify by written notice so given, and such notice will be deemed to have been delivered as of the date so telecommunicated, personally delivered or mailed. Any Party to this Agreement may notify any other Party of any
changes to the address or any of the other details specified in this paragraph;
provided
,
however
, that such notification will be effective solely as to such notified Party if in writing and only on the date specified in such notice or
two (2) Business Days after the notice is given, whichever is later. The failure of any Party to give notice will not relieve any other Party of its obligations under this Agreement except to the extent that such other Party is actually
prejudiced by such failure to give notice.
(b)
Interpretation
.
(i) When a reference is made in this Agreement to Sections or Exhibits, such reference will be to a Section of or Exhibit to
this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will 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 will be deemed to be followed by the words without limitation. Unless the context otherwise requires, (i) or is disjunctive but not
necessarily exclusive, (ii) words in the singular include the plural and vice versa, and (iii) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. A
day means a calendar day unless specified as a Business Day. Except as otherwise expressly provided elsewhere in this Agreement, for any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party,
such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
(ii) The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a
question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of
this Agreement.
(c)
Counterparts
. This Agreement may be executed in two or more counterparts, all of which will be considered one
and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that each Party need not sign the same counterpart.
(d)
Entire Agreement; Third Party Beneficiaries
. This Agreement (including the schedules and exhibits referred to in this Agreement)
(i) constitutes the entire agreement and supersedes and cancels all prior and contemporaneous
D-2-6
agreements and understandings, both written and oral, express or implied, among the Parties with respect to the subject matter of this Agreement and (ii) is not intended to, and does not,
confer upon any person any rights or remedies hereunder other than the Parties and their respective successors and permitted assigns.
(e)
Amendment
. This Agreement may not be amended except by an instrument in writing signed on behalf of each of the Parties.
(f)
Extension; Waiver
. Any agreement on the part of a Party to (i) extend the time for the performance of any of the obligations or other acts of another Party or (ii) waive (A) any inaccuracies in the representations and
warranties contained in this Agreement or (B) compliance with any of the agreements or conditions contained in this Agreement, in each case, will be valid only if set forth in a written instrument signed on behalf of such Party, but such
extension or waiver or failure to insist on strict compliance with an obligation, covenant, agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
(g)
Governing Law; Jurisdiction, Enforcement
. This Agreement will be governed by and construed in accordance with the laws of the State
of Delaware, without giving effect to any choice or conflict of law 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. In
addition, each of the Parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder brought by any Party hereto or its successors or permitted assigns, will be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom
within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any state or federal court within the State of Delaware). Each of the Parties hereto hereby irrevocably submits with regard
to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the
Transactions in any court other than the aforesaid courts. Each of the Parties hereto by this Agreement irrevocably waives, and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect
to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for any reason other than the failure to serve in accordance with this Section 8(g), (b) any claim that it or its
property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment
or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit, action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is
improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(h)
Waiver of Jury
Trial
. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS. EACH PARTY MAKES THIS WAIVER
VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS CONTAINED IN THIS
SECTION 8(h)
.
(i)
Assignment
. Neither this Agreement nor any of the rights, interests or obligations hereunder will be assigned by any of the Parties
hereto (whether by sale of stock, operation of law, in connection with a merger or sale of substantially all of the assets, or otherwise) without the prior written consent of the other Parties, and any attempt to do so will be null and void, except
that any Covered Stockholder may assign all or any of its rights and obligations hereunder to any of its affiliates;
provided
,
however
, that no such assignment shall relieve the assigning party of its obligations hereunder if such
assignee does not perform such obligations. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties hereto and their respective successors and permitted assigns.
D-2-7
(j)
Severability
. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision and the remaining terms and
provisions of this Agreement in any jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision will be interpreted to be only so broad as to be enforceable.
(k)
No Ownership Interest
. Nothing contained in this Agreement shall be deemed, upon execution or otherwise, to vest in Parent any
direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Covered Stockholders, and
Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Covered Stockholders in the voting of, or
otherwise with respect to, any of the Covered Shares, except as otherwise provided herein.
(l)
Certain Definitions
. For the
purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement. Certain other terms have the meanings ascribed to them below or elsewhere in this
Agreement.
Additional Owned Shares
means, with respect to a Covered Stockholder, all such Shares that
are owned of record or beneficially by such Covered Stockholder and acquired after the date hereof (including any Shares acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options to acquire Shares or
warrants or the conversion of any convertible securities or otherwise).
affiliate
has the meaning set
forth in the Merger Agreement;
provided
,
however
, that for purposes of this Agreement, none of the Company or the Company Subsidiaries (or any of their respective officers or directors) shall constitute an affiliate of any Covered
Stockholder.
beneficial ownership
(and related terms such as beneficially owned or
beneficial owner) has the meaning set forth in
Rule 13d-3
under the Exchange Act.
Covered Shares
means, with respect to a Covered Stockholder, the Existing Shares and Additional Owned
Shares.
Existing Shares
of a Covered Stockholder means the Shares that are owned of record or
beneficially owned by the specified Covered Stockholder as of the date hereof, as set forth opposite such Covered Stockholders name on
Schedule
1(a)
hereto.
(m)
Remedies
. The Parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in addition to any other
remedy to which they are entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.
(n)
Facsimile Signatures
. A signature page to this Agreement, the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, that contains a copy of a Partys signature and that is sent by such Party or its agent with the apparent intention (as
reasonably evidenced by the actions of such Party or its agent) that it constitute such Partys execution and delivery of this Agreement or any such other document, including a document sent by means of a facsimile machine or electronic
transmission in portable document format (pdf), will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person.
D-2-8
IN WITNESS WHEREOF, Parent, Sub and the Covered Stockholders have caused this Agreement to
be duly executed as of the day and year first above written.
|
|
|
MOUNT
OLYMPUS HOLDINGS, INC.
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
OLYMPUS MERGER SUB, INC.
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
[Signature Page to Voting AgreementQuadrangle Group LLC]
D-2-9
|
|
|
Covered Stockholders
|
QUADRANGLE CAPITAL PARTNERS II LP
|
QUADRANGLE SELECT PARTNERS II LP
|
QUADRANGLE CAPITAL PARTNERS
II-A
LP
|
By: Quadrangle GP Investors II LP, its general
partner
|
By: QCP GP Investors II LLC, its general partner
|
By:
|
|
/s/ Michael Huber
|
Name: Michael Huber
|
Title: President and Managing Principal
|
[Signature Page to Voting AgreementQuadrangle Group LLC]
D-2-10
Schedule 1(a)
|
|
|
|
|
Covered Stockholder
|
|
Existing Shares
|
|
Quadrangle Capital Partners II LP
|
|
|
3,309,900
|
|
Quadrangle Select Partners II LP
|
|
|
88,797
|
|
Quadrangle Capital Partners
II-A
LP
|
|
|
383,264
|
|
|
|
|
|
|
Total
|
|
|
3,781,961
|
|
|
|
|
|
|
D-2-11
Schedule 5(a)
1.
|
Amended and Restated Stockholder Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.65 to Amendment No. 12
to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
2.
|
Amended and Restated Registration Rights and Coordination Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.63
to Amendment No. 12 to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
D-2-12
ANNEX D-3
EXECUTION VERSION
VOTING AGREEMENT
This
VOTING AGREEMENT (this
Agreement
), dated as of May 9, 2017, is entered into by and among Gary L. West, Gary West CRT1 LLC, Gary West CRT2 LLC, Gary West CRT3 LLC, Gary West CRT4 LLC, Gary West CRT5 LLC, Gary and Mary West
Health Institute, West Investment Holdings, LLC, Gary West IRA (collectively the
Covered Stockholders
, and each, a
Covered Stockholder
), Mount Olympus Holdings, Inc., a Delaware corporation
(
Parent
), and Olympus Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (
Sub
). The Covered Stockholders, Parent and Sub are sometimes referred to individually as a
Party
and collectively as the
Parties
.
RECITALS
A. Each Covered Stockholder is a stockholder of West Corporation, a Delaware corporation (the
Company
).
B. Concurrently with the execution and delivery of this Agreement, Parent, Sub and the Company are entering into an Agreement and Plan of
Merger, dated as of the date hereof (as the same may be amended or otherwise modified in accordance with its terms after the date hereof, the
Merger Agreement
), providing, among other things, for the merger of Sub with and into
the Company (the
Merger
), with the Company surviving the Merger as a wholly owned Subsidiary of Parent, upon the terms and subject to the conditions set forth in the Merger Agreement.
C. As of the date hereof, the Existing Shares (as defined herein) set forth opposite each Covered Stockholders name on
Schedule 1(a)
attached hereto are beneficially owned by such Covered Stockholder.
D. As a condition and inducement to the
willingness of Parent and Sub to enter into the Merger Agreement, the Covered Stockholders have agreed to enter into this Agreement.
E.
Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
NOW,
THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the Parties agree as follows:
1.
Agreement to Vote
.
(a)
Voting
. During the Term (as defined herein), at any meeting of the stockholders of the Company (the
Stockholders
), including the Company Stockholder Meeting, however called, including at any adjournment or postponement thereof, or in connection with any written consent of the Stockholders, each Covered Stockholder shall
(i) vote (or cause to be voted) all of its Covered Shares as of the applicable record date so that all of such Covered Shares are duly counted for purposes of determining whether a quorum is present and (ii) vote (or cause to be voted) all
of its Covered Shares as of the applicable record date (A) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger (including in favor of the Company Stockholder Approval),
(B) in favor of any proposal to adjourn or postpone such meeting of the Stockholders to a later date if there are not sufficient votes to adopt the Merger Agreement and (C) against: (1) any action or proposal in favor of a Competing
Proposal (without regard to the terms of such Competing Proposal), and (2) any action, proposal, transaction or agreement that would prevent or materially delay, or would reasonably be expected to prevent or materially delay, the consummation
of the transactions contemplated by the Merger Agreement, including the Merger.
D-3-1
(b)
Grant of Irrevocable Proxy
. Each Covered Stockholder hereby irrevocably appoints
Parent and any person designated in writing by Parent, and each of them individually, as such Covered Stockholders proxy and
attorney-in-fact,
with full power of
substitution and resubstitution, to vote at any meeting of the Stockholders (including the Company Stockholder Meeting), however called, including at any adjournment or postponement thereof, or in connection with any written consent of the
Stockholders, in each case, at which any of the matters described in
Section 1(a)
is to be considered during the Term, with respect to the Covered Shares as of the applicable record date, in each case solely to the extent and in the manner
specified in
Section 1(a)
;
provided
,
however
, that such Covered Stockholders grant of the proxy contemplated by this
Section 1(b)
shall be effective if, and only if, such Covered Stockholder has not delivered to the
Secretary of the Company, at least two (2) Business Days prior to the applicable meeting or deadline for action by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing that the
Covered Shares be voted in accordance with
Section 1(a)
. This proxy, if it becomes effective, is given to secure the performance of the duties of such Covered Stockholder under this Agreement, and its existence will not be deemed to relieve
such Stockholder of its obligations under
Section 1(a)
. This proxy shall expire and be deemed revoked and terminated automatically at the expiration of the Term.
2.
No Transfers or Solicitation
.
(a)
Restrictions on Transfers
. Each Covered Stockholder hereby agrees, during the Term, not to, directly or indirectly, (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to, the sale, transfer, pledge, encumbrance, assignment or other disposition of, or limitation on the
voting rights of, any of the Covered Shares of such Covered Stockholder (any such action, a
Transfer
), (ii) except as otherwise provided in
Section 1(b)
, grant any proxies or powers of attorney with respect to the Covered
Shares of such Covered Stockholder, deposit any such Covered Shares into a voting trust or enter into a voting agreement with respect to any such Covered Shares, in each case with respect to any vote on the approval and adoption of the Merger
Agreement or any other matters set forth in
Section 1(a)
of this Agreement or (iii) commit or agree to take any of the foregoing actions during the Term;
provided
that, notwithstanding the foregoing, the following Transfers are
permitted: (A) Transfers of Covered Shares to any person who has agreed in writing (the form and substance of which is reasonably acceptable to Parent) to be bound by the terms of this Agreement, (B) Transfers of Covered Shares with
Parents prior written consent and (C) Transfers of Covered Shares after the receipt of the Company Stockholder Approval.
(b)
No Solicitation, Discussion or Negotiation
. During the Term of this Agreement, each Covered Stockholder shall not and shall cause each of its controlled affiliates not to, directly or indirectly, (i) initiate, solicit or knowingly
encourage or facilitate (including by way of furnishing
non-public
information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the
submission of any Competing Proposal, (ii) furnish any
non-public
information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal,
(iii) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with any third person with respect to, any Competing Proposal, (iv) approve or recommend, or propose to approve or recommend, a
Competing Proposal, (v) enter into any Contract with any person subsequent to the date of this Agreement that prohibits the Company from complying with its obligations under
Section 5.03
of the Merger Agreement (without giving
effect to any amendment or modification of such provision after the date of this Agreement) or (vi) agree to do any of the foregoing;
provided
,
however
, that, notwithstanding the foregoing, each Covered Stockholder or affiliate
thereof may participate in discussions or negotiations with any person regarding a Competing Proposal if, and solely to the extent that, the Company is permitted to engage in discussions or negotiations with such person regarding such Competing
Proposal pursuant to the Merger Agreement, in each case pursuant to the terms and conditions of
Section 5.03
of the Merger Agreement (without giving effect to any amendment or modification of such provision after the date of this
Agreement).
3.
No Limitations on Actions
. Parent expressly acknowledges that each Covered Stockholder is entering into this
Agreement solely in its capacity as the beneficial owner of the applicable Covered Shares, and this
D-3-2
Agreement shall not limit or otherwise affect the actions or exercise of fiduciary duties of such Covered Stockholder, or any representative, affiliate, trustee, beneficiary, settlor, employee or
designee of such Covered Stockholder or any of its affiliates in its capacity, if applicable, as a director or officer of the Company.
4.
Additional Agreements
.
(a)
Certain Events
. In the event of any dividend, subdivision, reclassification, recapitalization,
stock split (including a reverse stock split),
split-up,
distribution, combination, exchange of shares, readjustment or other similar transaction or other change in the capital structure of the Company
affecting the Covered Shares or the acquisition of Additional Owned Shares (as defined in
Section 8(l)
of this Agreement) by a Covered Stockholder, (i) the type and number of Covered Shares shall be adjusted appropriately to reflect
the effect of such occurrence and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares issued to or acquired by a Covered Stockholder;
provided
, that nothing in this
Section
4(a)
shall be construed to permit or require the Covered Stockholders to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
(b)
Commencement or Participation in Actions
. Each Covered Stockholder hereby agrees not to commence or join in, and to take all
actions necessary to opt out of, any class in any class action with respect to, any Transaction Litigation, including any claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the
Merger Agreement, (ii) alleging a breach of any fiduciary duty of the Company or the Company Board or its members in connection with the Merger Agreement or the transactions contemplated hereby or thereby or (iii) seeking to exercise any
statutory rights (including under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Covered Shares that may arise in connection with the Merger or the Merger Agreement.
(c)
Appraisal Rights or Rights of Dissent
. Each Covered Stockholder hereby irrevocably waives, and agrees not to exercise, any rights
of appraisal or rights of dissent from the Merger that such Covered Stockholder may have with respect to the Covered Shares.
(d)
Publication and Disclosure
. Each Covered Stockholder hereby agrees to permit the Company and Parent to publish and disclose, including in filings with the SEC and in the press release announcing the transactions contemplated by the Merger
Agreement, this Agreement and such Covered Stockholders identity and ownership of the Covered Shares and the nature of such Covered Stockholders commitments, arrangements and understandings under this Agreement.
(e)
Further Assurances
. From time to time, upon prior notice and at the reasonable request of Parent, each Covered Stockholder shall
execute and deliver such additional documents and take all such further action as may be reasonably necessary or appropriate to comply with its obligations under this Agreement.
5.
Representations and Warranties of the Covered Stockholder
. Each Covered Stockholder represents and warrants to Parent and Sub as to
itself as follows:
(a)
Title
. Such Covered Stockholder owns of record or beneficially its Existing Shares (as set forth opposite
such Covered Stockholders name on
Schedule 1(a)
attached hereto). The Existing Shares set forth opposite such Covered Stockholders name on
Schedule 1(a)
attached hereto constitute all of the Shares owned of record or
beneficially by such Covered Stockholder on the date hereof. Such Covered Stockholder has voting power with respect to all of its Covered Shares, and none of such Covered Stockholders Covered Shares are subject to any voting trust, proxy,
voting restriction, adverse claim or other arrangement with respect to the voting of such Covered Shares, except as contemplated by this Agreement or as disclosed in
Schedule 5(a)
attached hereto. Except as permitted or required by this
Agreement and except as disclosed in
Schedule 5(a)
attached hereto, the Covered Shares of such Covered Stockholder (and the certificates representing such Covered Shares, if any) are now free and clear of any and all Liens whatsoever on
title, or restrictions on transfer (other than under applicable securities Laws and as created by this Agreement).
D-3-3
(b)
Organization and Qualification
. If such Covered Stockholder is not an individual,
such Covered Stockholder is a legal entity duly formed or organized (as applicable), validly existing and in good standing under the Laws of the jurisdiction in which it is formed or organized, as applicable.
(c)
Authority
. If such Covered Stockholder is an individual, he or she has full legal capacity, right and authority to execute and
deliver this Agreement and to perform his or her obligations hereunder and consummate the transactions contemplated hereby, and if such Covered Stockholder is not an individual, such Covered Stockholder has all necessary power and authority and has
taken all action necessary in order to execute and deliver this Agreement and perform all of such Covered Stockholders obligations under this Agreement and consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of such Covered Stockholder, or its board of directors or managers, general partner or other entity, governing body or person, are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(d)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by, or on
behalf of, such Covered Stockholder and, assuming due authorization, execution and delivery of this Agreement by Parent and Sub, constitutes a legal, valid and binding obligation of such Covered Stockholder, enforceable against such Covered
Stockholder in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(e)
No
Conflicts
. The execution and delivery of this Agreement by such Covered Stockholder does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws
or agreements binding upon such Covered Stockholder or such Covered Stockholders Covered Shares, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by
such Covered Stockholder or any of its affiliates required by the rules and regulations promulgated under the Exchange Act or as would not impact such Covered Stockholders ability to perform or comply with its obligations under this Agreement
in any material respect.
6.
Representations and Warranties of Parent and Sub
. Parent and Sub jointly and severally represent and
warrant to the Covered Stockholders as follows:
(a)
Organization and Qualification
. Each of Parent and Sub is duly organized,
validly existing and in good standing under the Laws of the State of Delaware.
(b)
Authority
. Parent and Sub have the requisite
power and authority and have taken all action necessary in order to execute and deliver this Agreement, to perform their respective obligations hereunder and to consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of Parent or Sub or either of its board of directors or managers, general partner or other entity, governing body or person are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(c)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by Parent
and Sub, and assuming due authorization, execution and delivery of this Agreement by the other Parties hereto, constitutes a legal, valid and binding obligation of each of Parent and Sub, enforceable against each of Parent and Sub in accordance with
its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(d)
No Conflicts
. The execution
and delivery of this Agreement by Parent and Sub does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws or agreements binding upon Parent or
Sub, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by Parent or Sub required by the rules and regulations promulgated under the Exchange Act or as would
not impact Parents or Subs ability to perform or comply with its obligations under this Agreement in any material respect.
D-3-4
7.
Termination
.
(a)
Term
. The term of this Agreement (
Term
) and all rights and obligations of the Parties hereunder shall commence
on the date hereof and shall immediately terminate and expire upon the earliest of, without the need for any further action by any person, (i) the mutual written agreement of the Parties; (ii) the consummation of the Merger; (iii) the
entry without the prior written consent of the Covered Stockholders into any amendment, modification or waiver of any provision of the Merger Agreement (A) that reduces the amount, or modifies the form, of the Merger Consideration payable to
any of the stockholders of the Company (other than adjustments in accordance with the terms of the Merger Agreement), (B) that amends or modifies any of the closing conditions in a manner that would reasonably be expected to prevent or materially
delay the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or (C) that is in any way material and adverse, or adverse from a financial standpoint, to any of the Covered Stockholders; (iv) the
termination of the Merger Agreement pursuant to and in compliance with the terms therein; (v) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to a
Competing Proposal; and (vi) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to an Intervening Event.
(b)
Survival of Certain Provisions
. In the event of termination of this Agreement pursuant to
Section 7(a)
, this Agreement shall
become void and of no effect with no liability on the part of any Party hereto;
provided
,
however
, no such termination shall relieve the Covered Stockholders from any liability for any willful breach of this Agreement or any of the
Parties from any liability for fraud, in each case occurring prior to such termination and the provisions of this
Article 7
and
Article 8
shall survive any such termination.
8.
Miscellaneous
.
(a)
Notices
. Any notice required to be given hereunder will be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business
Day after 5:00 p.m. (addressees local time) will be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by electronic mail (but only if followed by an overnight delivery service (with
proof of service) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
If to Parent or Sub, to:
Mount
Olympus Holdings, Inc.
c/o Apollo Management VIII, L.P.
9 West 57
th
Street
Fax: (646)
607-0546
Attention: Matthew Nord
Robert
Kalsow-Ramos
with a copy (which will not constitute notice but will be required for proper notice to be given) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York,
New York 10019
Telephone:
(212) 403-1000
Fax:
(212) 403-2000
Attention: Andrew J. Nussbaum and Karessa L. Cain
Email: AJNussbaum@wlrk.com and KLCain@wlrk.com
D-3-5
If to a Covered Stockholder:
Gary L. West
c/o West Partners
5796 Armada Drive, Suite 300
Carlsbad, CA 92008
with copies
(which will not constitute notice but will be required for proper notice to be given) to:
Kutak Rock LLP
1650 Farnam Street
Omaha, NE
68102
Attention: James C. Creigh
Fax: (402)
346-1148
Email: james.creigh@kutakrock.com
or to such
other address as any Party will specify by written notice so given, and such notice will be deemed to have been delivered as of the date so telecommunicated, personally delivered or mailed. Any Party to this Agreement may notify any other Party of
any changes to the address or any of the other details specified in this paragraph;
provided
,
however
, that such notification will be effective solely as to such notified Party if in writing and only on the date specified in such
notice or two (2) Business Days after the notice is given, whichever is later. The failure of any Party to give notice will not relieve any other Party of its obligations under this Agreement except to the extent that such other Party is
actually prejudiced by such failure to give notice.
(b)
Interpretation
.
(i) When a reference is made in this Agreement to Sections or Exhibits, such reference will be to a Section of or Exhibit to
this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will 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 will be deemed to be followed by the words without limitation. Unless the context otherwise requires, (i) or is disjunctive but not
necessarily exclusive, (ii) words in the singular include the plural and vice versa, and (iii) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. A
day means a calendar day unless specified as a Business Day. Except as otherwise expressly provided elsewhere in this Agreement, for any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party,
such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
(ii) The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a
question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of
this Agreement.
(c)
Counterparts
. This Agreement may be executed in two or more counterparts, all of which will be considered one
and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that each Party need not sign the same counterpart.
(d)
Entire Agreement; Third Party Beneficiaries
. This Agreement (including the schedules and exhibits referred to in this Agreement)
(i) constitutes the entire agreement and supersedes and cancels all prior and contemporaneous agreements and understandings, both written and oral, express or implied, among the Parties with respect to the subject matter of this Agreement and
(ii) is not intended to, and does not, confer upon any person any rights or remedies hereunder other than the Parties and their respective successors and permitted assigns.
D-3-6
(e)
Amendment
. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the Parties.
(f)
Extension; Waiver
. Any agreement on the part of a Party to (i) extend the time
for the performance of any of the obligations or other acts of another Party or (ii) waive (A) any inaccuracies in the representations and warranties contained in this Agreement or (B) compliance with any of the agreements or
conditions contained in this Agreement, in each case, will be valid only if set forth in a written instrument signed on behalf of such Party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant,
agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
(g)
Governing
Law; Jurisdiction, Enforcement
. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law 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. In addition, each of the Parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement
and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by any Party hereto or its successors or permitted assigns,
will be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any
state or federal court within the State of Delaware). Each of the Parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal
jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the Transactions in any court other than the aforesaid courts. Each of the Parties hereto by this Agreement irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for
any reason other than the failure to serve in accordance with this
Section 8(g)
, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit,
action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(h)
Waiver of Jury Trial
. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
CONTAINED IN THIS
SECTION 8(h)
.
(i)
Assignment
. Neither this Agreement nor any of the rights, interests or obligations
hereunder will be assigned by any of the Parties hereto (whether by sale of stock, operation of law, in connection with a merger or sale of substantially all of the assets, or otherwise) without the prior written consent of the other Parties, and
any attempt to do so will be null and void, except that any Covered Stockholder may assign all or any of its rights and obligations hereunder to any of its affiliates;
provided
,
however
, that no such assignment shall relieve the
assigning party of its obligations hereunder if such assignee does not perform such obligations. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties hereto and their
respective successors and permitted assigns.
(j)
Severability
. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision and the remaining terms and
D-3-7
provisions of this Agreement in any jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision will be interpreted to be only so broad as to be
enforceable.
(k)
No Ownership Interest
. Nothing contained in this Agreement shall be deemed, upon execution or otherwise, to vest
in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Covered
Stockholders, and Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Covered Stockholders in the
voting of, or otherwise with respect to, any of the Covered Shares, except as otherwise provided herein.
(l)
Certain Definitions
.
For the purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement. Certain other terms have the meanings ascribed to them below or elsewhere in
this Agreement.
Additional Owned Shares
means, with respect to a Covered Stockholder, all such Shares
that are owned of record or beneficially by such Covered Stockholder and acquired after the date hereof (including any Shares acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options to acquire Shares
or warrants or the conversion of any convertible securities or otherwise).
affiliate
has the meaning
set forth in the Merger Agreement;
provided
,
however
, that for purposes of this Agreement, none of the Company or the Company Subsidiaries (or any of their respective officers or directors) shall constitute an affiliate of any Covered
Stockholder.
beneficial ownership
(and related terms such as beneficially owned or
beneficial owner) has the meaning set forth in
Rule 13d-3
under the Exchange Act.
Covered Shares
means, with respect to a Covered Stockholder, the Existing Shares and Additional Owned
Shares.
Existing Shares
of a Covered Stockholder means the Shares that are owned of record or
beneficially owned by the specified Covered Stockholder as of the date hereof, as set forth opposite such Covered Stockholders name on
Schedule
1(a)
hereto.
(m)
Remedies
. The Parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in addition to any other
remedy to which they are entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.
(n)
Facsimile Signatures
. A signature page to this Agreement, the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, that contains a copy of a Partys signature and that is sent by such Party or its agent with the apparent intention (as
reasonably evidenced by the actions of such Party or its agent) that it constitute such Partys execution and delivery of this Agreement or any such other document, including a document sent by means of a facsimile machine or electronic
transmission in portable document format (pdf), will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person.
D-3-8
IN WITNESS WHEREOF, Parent, Sub and the Covered Stockholders have caused this Agreement to
be duly executed as of the day and year first above written.
|
|
|
MOUNT OLYMPUS HOLDINGS, INC.
|
|
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and
President
|
|
|
|
OLYMPUS MERGER SUB, INC.
|
|
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
[Signature Page to Voting AgreementGary L. West]
D-3-9
|
|
|
Covered Stockholders
|
|
GARY WEST CRT1 LLC
|
GARY WEST CRT2 LLC
|
GARY WEST CRT3 LLC
|
GARY WEST CRT4 LLC
|
GARY WEST CRT5 LLC
|
GARY AND MARY WEST HEALTH INSTITUTE
|
WEST INVESTMENT HOLDINGS, LLC
|
GARY WEST IRA
|
|
|
By:
|
|
/s/ Gary L.
West
|
[Signature Page to Voting AgreementGary L. West]
D-3-10
Schedule 1(a)
|
|
|
|
|
Covered Stockholder
|
|
Existing Shares
|
|
Gary West CRT1 LLC
|
|
|
2,465,432
|
|
Gary West CRT2 LLC
|
|
|
2,080,676
|
|
Gary West CRT3 LLC
|
|
|
1,689,077
|
|
Gary West CRT4 LLC
|
|
|
1,162,681
|
|
Gary West CRT5 LLC
|
|
|
833,594
|
|
Gary and Mary West Health Institute
|
|
|
93,750
|
|
West Investment Holdings, LLC
|
|
|
109,474
|
|
Gary West IRA
|
|
|
17,325
|
|
|
|
|
|
|
Total
|
|
|
8,452,009
|
|
|
|
|
|
|
D-3-11
Schedule 5(a)
1.
|
Amended and Restated Stockholder Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.65 to Amendment No. 12
to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
2.
|
Amended and Restated Registration Rights and Coordination Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.63
to Amendment No. 12 to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
D-3-12
ANNEX D-4
EXECUTION VERSION
VOTING AGREEMENT
This
VOTING AGREEMENT (this
Agreemen
t
), dated as of May 9, 2017, is entered into by and among Mary E. West, Mary West CRT1 LLC, Mary West CRT2 LLC, Mary West CRT3 LLC, Mary West CRT4 LLC, Mary West CRT5 LLC, West Investment
Holdings, LLC (collectively the
Covered Stockholders
, and each, a
Covered Stockholder
), Mount Olympus Holdings, Inc., a Delaware corporation (
Parent
), and Olympus Merger Sub, Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent (
Sub
). The Covered Stockholders, Parent and Sub are sometimes referred to individually as a
Party
and collectively as the
Parties
.
RECITALS
A. Each Covered
Stockholder is a stockholder of West Corporation, a Delaware corporation (the
Company
).
B. Concurrently with the
execution and delivery of this Agreement, Parent, Sub and the Company are entering into an Agreement and Plan of Merger, dated as of the date hereof (as the same may be amended or otherwise modified in accordance with its terms after the date
hereof, the
Merger Agreement
), providing, among other things, for the merger of Sub with and into the Company (the
Merger
), with the Company surviving the Merger as a wholly owned Subsidiary of Parent, upon the
terms and subject to the conditions set forth in the Merger Agreement.
C. As of the date hereof, the Existing Shares (as defined herein)
set forth opposite each Covered Stockholders name on
Schedule 1(a)
attached hereto are beneficially owned by such Covered Stockholder.
D. As a condition and inducement to the willingness of Parent and Sub to enter into the Merger Agreement, the Covered Stockholders have agreed
to enter into this Agreement.
E. Capitalized terms used but not otherwise defined herein shall have the meanings ascribed to such terms
in the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the respective representations, warranties, covenants and
agreements set forth in this Agreement and in the Merger Agreement, and intending to be legally bound hereby, the Parties agree as follows:
1.
Agreement to Vote
.
(a)
Voting
. During the Term (as defined herein), at any meeting of the stockholders of the Company (the
Stockholders
), including the Company Stockholder Meeting, however called, including at any adjournment or postponement thereof, or in connection with any written consent of the Stockholders, each Covered Stockholder shall
(i) vote (or cause to be voted) all of its Covered Shares as of the applicable record date so that all of such Covered Shares are duly counted for purposes of determining whether a quorum is present and (ii) vote (or cause to be voted) all
of its Covered Shares as of the applicable record date (A) in favor of the approval and adoption of the Merger Agreement and the transactions contemplated thereby, including the Merger (including in favor of the Company Stockholder Approval),
(B) in favor of any proposal to adjourn or postpone such meeting of the Stockholders to a later date if there are not sufficient votes to adopt the Merger Agreement and (C) against: (1) any action or proposal in favor of a Competing
Proposal (without regard to the terms of such Competing Proposal), and (2) any action, proposal, transaction or agreement that would prevent or materially delay, or would reasonably be expected to prevent or materially delay, the consummation
of the transactions contemplated by the Merger Agreement, including the Merger.
D-4-1
(b)
Grant of Irrevocable Proxy
. Each Covered Stockholder hereby irrevocably appoints
Parent and any person designated in writing by Parent, and each of them individually, as such Covered Stockholders proxy and
attorney-in-fact,
with full power of
substitution and resubstitution, to vote at any meeting of the Stockholders (including the Company Stockholder Meeting), however called, including at any adjournment or postponement thereof, or in connection with any written consent of the
Stockholders, in each case, at which any of the matters described in
Section 1(a)
is to be considered during the Term, with respect to the Covered Shares as of the applicable record date, in each case solely to the extent and in the manner
specified in
Section 1(a)
;
provided
,
however
, that such Covered Stockholders grant of the proxy contemplated by this
Section 1(b)
shall be effective if, and only if, such Covered Stockholder has not delivered to the
Secretary of the Company, at least two (2) Business Days prior to the applicable meeting or deadline for action by written consent, as applicable, a duly executed irrevocable proxy card or written consent, as applicable, directing that the
Covered Shares be voted in accordance with
Section 1(a)
. This proxy, if it becomes effective, is given to secure the performance of the duties of such Covered Stockholder under this Agreement, and its existence will not be deemed to relieve
such Stockholder of its obligations under
Section 1(a)
. This proxy shall expire and be deemed revoked and terminated automatically at the expiration of the Term.
2.
No Transfers or Solicitation
.
(a)
Restrictions on Transfers
. Each Covered Stockholder hereby agrees, during the Term, not to, directly or indirectly, (i) sell,
transfer, pledge, encumber, assign or otherwise dispose of, or enter into any contract, option or other arrangement or understanding with respect to, the sale, transfer, pledge, encumbrance, assignment or other disposition of, or limitation on the
voting rights of, any of the Covered Shares of such Covered Stockholder (any such action, a
Transfer
), (ii) except as otherwise provided in
Section 1(b)
, grant any proxies or powers of attorney with respect to the Covered
Shares of such Covered Stockholder, deposit any such Covered Shares into a voting trust or enter into a voting agreement with respect to any such Covered Shares, in each case with respect to any vote on the approval and adoption of the Merger
Agreement or any other matters set forth in
Section 1(a)
of this Agreement or (iii) commit or agree to take any of the foregoing actions during the Term;
provided
that, notwithstanding the foregoing, the following Transfers are
permitted: (A) Transfers of Covered Shares to any person who has agreed in writing (the form and substance of which is reasonably acceptable to Parent) to be bound by the terms of this Agreement, (B) Transfers of Covered Shares with
Parents prior written consent and (C) Transfers of Covered Shares after the receipt of the Company Stockholder Approval.
(b)
No Solicitation, Discussion or Negotiation
. During the Term of this Agreement, each Covered Stockholder shall not and shall cause each of its controlled affiliates not to, directly or indirectly, (i) initiate, solicit or knowingly
encourage or facilitate (including by way of furnishing
non-public
information) any inquiry, proposal, indication of interest or offer which constitutes, or would reasonably be expected to lead to, the
submission of any Competing Proposal, (ii) furnish any
non-public
information regarding the Company or any Company Subsidiary to any third person in connection with or in response to a Competing Proposal,
(iii) initiate, solicit, knowingly encourage or facilitate, or participate in any discussions or negotiations with any third person with respect to, any Competing Proposal, (iv) approve or recommend, or propose to approve or recommend, a
Competing Proposal, (v) enter into any Contract with any person subsequent to the date of this Agreement that prohibits the Company from complying with its obligations under
Section 5.03
of the Merger Agreement (without giving
effect to any amendment or modification of such provision after the date of this Agreement) or (vi) agree to do any of the foregoing;
provided
,
however
, that, notwithstanding the foregoing, each Covered Stockholder or affiliate
thereof may participate in discussions or negotiations with any person regarding a Competing Proposal if, and solely to the extent that, the Company is permitted to engage in discussions or negotiations with such person regarding such Competing
Proposal pursuant to the Merger Agreement, in each case pursuant to the terms and conditions of
Section 5.03
of the Merger Agreement (without giving effect to any amendment or modification of such provision after the date of this
Agreement).
3.
No Limitations on Actions
. Parent expressly acknowledges that each Covered Stockholder is entering into this
Agreement solely in its capacity as the beneficial owner of the applicable Covered Shares, and this
D-4-2
Agreement shall not limit or otherwise affect the actions or exercise of fiduciary duties of such Covered Stockholder, or any representative, affiliate, trustee, beneficiary, settlor, employee or
designee of such Covered Stockholder or any of its affiliates in its capacity, if applicable, as a director or officer of the Company.
4.
Additional Agreements
.
(a)
Certain Events
. In the event of any dividend, subdivision, reclassification, recapitalization,
stock split (including a reverse stock split),
split-up,
distribution, combination, exchange of shares, readjustment or other similar transaction or other change in the capital structure of the Company
affecting the Covered Shares or the acquisition of Additional Owned Shares (as defined in
Section 8(l)
of this Agreement) by a Covered Stockholder, (i) the type and number of Covered Shares shall be adjusted appropriately to reflect
the effect of such occurrence and (ii) this Agreement and the obligations hereunder shall automatically attach to any additional Covered Shares issued to or acquired by a Covered Stockholder;
provided
, that nothing in this
Section
4(a)
shall be construed to permit or require the Covered Stockholders to take any action that is otherwise prohibited or restricted by any other provision of this Agreement.
(b)
Commencement or Participation in Actions
. Each Covered Stockholder hereby agrees not to commence or join in, and to take all
actions necessary to opt out of, any class in any class action with respect to, any Transaction Litigation, including any claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or the
Merger Agreement, (ii) alleging a breach of any fiduciary duty of the Company or the Company Board or its members in connection with the Merger Agreement or the transactions contemplated hereby or thereby or (iii) seeking to exercise any
statutory rights (including under Section 262 of the General Corporation Law of the State of Delaware) to demand appraisal of any Covered Shares that may arise in connection with the Merger or the Merger Agreement.
(c)
Appraisal Rights or Rights of Dissent
. Each Covered Stockholder hereby irrevocably waives, and agrees not to exercise, any rights
of appraisal or rights of dissent from the Merger that such Covered Stockholder may have with respect to the Covered Shares.
(d)
Publication and Disclosure
. Each Covered Stockholder hereby agrees to permit the Company and Parent to publish and disclose, including in filings with the SEC and in the press release announcing the transactions contemplated by the Merger
Agreement, this Agreement and such Covered Stockholders identity and ownership of the Covered Shares and the nature of such Covered Stockholders commitments, arrangements and understandings under this Agreement.
(e)
Further Assurances
. From time to time, upon prior notice and at the reasonable request of Parent, each Covered Stockholder shall
execute and deliver such additional documents and take all such further action as may be reasonably necessary or appropriate to comply with its obligations under this Agreement.
5.
Representations and Warranties of the Covered Stockholder
. Each Covered Stockholder represents and warrants to Parent and Sub as to
itself as follows:
(a)
Title
. Such Covered Stockholder owns of record or beneficially its Existing Shares (as set forth opposite
such Covered Stockholders name on
Schedule 1(a)
attached hereto). The Existing Shares set forth opposite such Covered Stockholders name on
Schedule 1(a)
attached hereto constitute all of the Shares owned of record or
beneficially by such Covered Stockholder on the date hereof. Such Covered Stockholder has voting power with respect to all of its Covered Shares, and none of such Covered Stockholders Covered Shares are subject to any voting trust, proxy,
voting restriction, adverse claim or other arrangement with respect to the voting of such Covered Shares, except as contemplated by this Agreement or as disclosed in
Schedule 5(a)
attached hereto. Except as permitted or required by this
Agreement and except as disclosed in
Schedule 5(a)
attached hereto, the Covered Shares of such Covered Stockholder (and the certificates representing such Covered Shares, if any) are now free and clear of any and all Liens whatsoever on
title, or restrictions on transfer (other than under applicable securities Laws and as created by this Agreement).
D-4-3
(b)
Organization and Qualification
. If such Covered Stockholder is not an individual,
such Covered Stockholder is a legal entity duly formed or organized (as applicable), validly existing and in good standing under the Laws of the jurisdiction in which it is formed or organized, as applicable.
(c)
Authority
. If such Covered Stockholder is an individual, he or she has full legal capacity, right and authority to execute and
deliver this Agreement and to perform his or her obligations hereunder and consummate the transactions contemplated hereby, and if such Covered Stockholder is not an individual, such Covered Stockholder has all necessary power and authority and has
taken all action necessary in order to execute and deliver this Agreement and perform all of such Covered Stockholders obligations under this Agreement and consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of such Covered Stockholder, or its board of directors or managers, general partner or other entity, governing body or person, are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(d)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by, or on
behalf of, such Covered Stockholder and, assuming due authorization, execution and delivery of this Agreement by Parent and Sub, constitutes a legal, valid and binding obligation of such Covered Stockholder, enforceable against such Covered
Stockholder in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(e)
No
Conflicts
. The execution and delivery of this Agreement by such Covered Stockholder does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws
or agreements binding upon such Covered Stockholder or such Covered Stockholders Covered Shares, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by
such Covered Stockholder or any of its affiliates required by the rules and regulations promulgated under the Exchange Act or as would not impact such Covered Stockholders ability to perform or comply with its obligations under this Agreement
in any material respect.
6.
Representations and Warranties of Parent and Sub
. Parent and Sub jointly and severally represent and
warrant to the Covered Stockholders as follows:
(a)
Organization and Qualification
. Each of Parent and Sub is duly organized,
validly existing and in good standing under the Laws of the State of Delaware.
(b)
Authority
. Parent and Sub have the requisite
power and authority and have taken all action necessary in order to execute and deliver this Agreement, to perform their respective obligations hereunder and to consummate the transactions contemplated hereby, and no other proceedings or actions on
the part of Parent or Sub or either of its board of directors or managers, general partner or other entity, governing body or person are necessary to authorize the execution, delivery or performance of this Agreement or the consummation of the
transactions contemplated hereby.
(c)
Due Execution and Delivery
. This Agreement has been duly executed and delivered by Parent
and Sub, and assuming due authorization, execution and delivery of this Agreement by the other Parties hereto, constitutes a legal, valid and binding obligation of each of Parent and Sub, enforceable against each of Parent and Sub in accordance with
its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exception.
(d)
No Conflicts
. The execution
and delivery of this Agreement by Parent and Sub does not, and the consummation of the transactions contemplated hereby and the compliance with the provisions hereof will not, conflict with or violate any Laws or agreements binding upon Parent or
Sub, nor require any authorization, consent or approval of, or filing with, any Governmental Entity, except in each case for filings with the SEC by Parent or Sub required by the rules and regulations promulgated under the Exchange Act or as would
not impact Parents or Subs ability to perform or comply with its obligations under this Agreement in any material respect.
D-4-4
7.
Termination
.
(a)
Term
. The term of this Agreement (
Term
) and all rights and obligations of the Parties hereunder shall commence on
the date hereof and shall immediately terminate and expire upon the earliest of, without the need for any further action by any person, (i) the mutual written agreement of the Parties; (ii) the consummation of the Merger; (iii) the
entry without the prior written consent of the Covered Stockholders into any amendment, modification or waiver of any provision of the Merger Agreement (A) that reduces the amount, or modifies the form, of the Merger Consideration payable to
any of the stockholders of the Company (other than adjustments in accordance with the terms of the Merger Agreement), (B) that amends or modifies any of the closing conditions in a manner that would reasonably be expected to prevent or materially
delay the consummation of the transactions contemplated by the Merger Agreement, including the Merger, or (C) that is in any way material and adverse, or adverse from a financial standpoint, to any of the Covered Stockholders; (iv) the
termination of the Merger Agreement pursuant to and in compliance with the terms therein; (v) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to a
Competing Proposal; and (vi) the Company Board making a Change of Company Recommendation in accordance with
Section 5.03(d)
of the Merger Agreement in response to an Intervening Event.
(b)
Survival of Certain Provisions
. In the event of termination of this Agreement pursuant to
Section 7(a)
, this Agreement shall
become void and of no effect with no liability on the part of any Party hereto;
provided
,
however
, no such termination shall relieve the Covered Stockholders from any liability for any willful breach of this Agreement or any of the
Parties from any liability for fraud, in each case occurring prior to such termination and the provisions of this
Article 7
and
Article 8
shall survive any such termination.
8.
Miscellaneous
.
(a)
Notices
. Any notice required to be given hereunder will be sufficient if in writing, and sent by facsimile transmission (provided that any notice received by facsimile transmission or otherwise at the addressees location on any Business
Day after 5:00 p.m. (addressees local time) will be deemed to have been received at 9:00 a.m. (addressees local time) on the next Business Day), by electronic mail (but only if followed by an overnight delivery service (with
proof of service) on the next Business Day), by reliable overnight delivery service (with proof of service), hand delivery or certified or registered mail (return receipt requested and first-class postage prepaid), addressed as follows:
If to Parent or Sub, to:
Mount
Olympus Holdings, Inc.
c/o Apollo Management VIII, L.P.
9 West 57
th
Street
Fax: (646)
607-0546
|
|
|
Attention:
|
|
Matthew Nord
|
|
|
Robert Kalsow-Ramos
|
with a copy (which will not constitute notice but will be required for proper notice to be given) to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York,
New York 10019
Telephone:
(212) 403-1000
Fax:
(212) 403-2000
Attention: Andrew J. Nussbaum and Karessa L. Cain
Email: AJNussbaum@wlrk.com and KLCain@wlrk.com
D-4-5
If to a Covered Stockholder:
Mary E. West
c/o West Partners
5796 Armada Drive, Suite 300
Carlsbad, CA 92008
with copies
(which will not constitute notice but will be required for proper notice to be given) to:
Kutak Rock LLP
1650 Farnam Street
Omaha, NE
68102
Attention: James C. Creigh
Fax: (402)
346-1148
Email: james.creigh@kutakrock.com
or to such
other address as any Party will specify by written notice so given, and such notice will be deemed to have been delivered as of the date so telecommunicated, personally delivered or mailed. Any Party to this Agreement may notify any other Party of
any changes to the address or any of the other details specified in this paragraph;
provided
,
however
, that such notification will be effective solely as to such notified Party if in writing and only on the date specified in such
notice or two (2) Business Days after the notice is given, whichever is later. The failure of any Party to give notice will not relieve any other Party of its obligations under this Agreement except to the extent that such other Party is
actually prejudiced by such failure to give notice.
(b)
Interpretation
.
(i) When a reference is made in this Agreement to Sections or Exhibits, such reference will be to a Section of or Exhibit to
this Agreement unless otherwise indicated. The headings contained in this Agreement are for reference purposes only and will 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 will be deemed to be followed by the words without limitation. Unless the context otherwise requires, (i) or is disjunctive but not
necessarily exclusive, (ii) words in the singular include the plural and vice versa, and (iii) the use in this Agreement of a pronoun in reference to a Party hereto includes the masculine, feminine or neuter, as the context may require. A
day means a calendar day unless specified as a Business Day. Except as otherwise expressly provided elsewhere in this Agreement, for any provision herein which contemplates the agreement, approval or consent of, or exercise of any right of, a Party,
such Party may give or withhold such agreement, approval or consent, or exercise such right, in its sole and absolute discretion, the Parties hereby expressly disclaiming any implied duty of good faith and fair dealing or similar concept.
(ii) The Parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a
question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the Parties, and no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any provision of
this Agreement.
(c)
Counterparts
. This Agreement may be executed in two or more counterparts, all of which will be considered one
and the same agreement and will become effective when counterparts have been signed by each of the Parties and delivered to the other Parties, it being understood that each Party need not sign the same counterpart.
(d)
Entire Agreement; Third Party Beneficiaries
. This Agreement (including the schedules and exhibits referred to in this Agreement)
(i) constitutes the entire agreement and supersedes and cancels all prior and contemporaneous agreements and understandings, both written and oral, express or implied, among the Parties with respect to the subject matter of this Agreement and
(ii) is not intended to, and does not, confer upon any person any rights or remedies hereunder other than the Parties and their respective successors and permitted assigns.
D-4-6
(e)
Amendment
. This Agreement may not be amended except by an instrument in writing
signed on behalf of each of the Parties.
(f)
Extension; Waiver
. Any agreement on the part of a Party to (i) extend the time
for the performance of any of the obligations or other acts of another Party or (ii) waive (A) any inaccuracies in the representations and warranties contained in this Agreement or (B) compliance with any of the agreements or
conditions contained in this Agreement, in each case, will be valid only if set forth in a written instrument signed on behalf of such Party, but such extension or waiver or failure to insist on strict compliance with an obligation, covenant,
agreement or condition will not operate as a waiver of, or estoppel with respect to, any subsequent or other failure.
(g)
Governing
Law; Jurisdiction, Enforcement
. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice or conflict of law 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. In addition, each of the Parties hereto irrevocably agrees that any legal action or proceeding with respect to this Agreement
and the rights and obligations arising hereunder, or for recognition and enforcement of any judgment in respect of this Agreement and the rights and obligations arising hereunder brought by any Party hereto or its successors or permitted assigns,
will be brought and determined exclusively in the Delaware Court of Chancery and any state appellate court therefrom within the State of Delaware (or, if the Delaware Court of Chancery declines to accept jurisdiction over a particular matter, any
state or federal court within the State of Delaware). Each of the Parties hereto hereby irrevocably submits with regard to any such action or proceeding for itself and in respect of its property, generally and unconditionally, to the personal
jurisdiction of the aforesaid courts and agrees that it will not bring any action relating to this Agreement or any of the Transactions in any court other than the aforesaid courts. Each of the Parties hereto by this Agreement irrevocably waives,
and agrees not to assert, by way of motion, as a defense, counterclaim or otherwise, in any action or proceeding with respect to this Agreement, (a) any claim that it is not personally subject to the jurisdiction of the above named courts for
any reason other than the failure to serve in accordance with this
Section 8(g)
, (b) any claim that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts
(whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by the applicable Law, any claim that (i) the suit,
action or proceeding in such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
(h)
Waiver of Jury Trial
. EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO A TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS. EACH PARTY MAKES THIS WAIVER VOLUNTARILY AND SUCH PARTY HAS BEEN INDUCED TO ENTER THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
CONTAINED IN THIS
SECTION 8(h)
.
(i)
Assignment
. Neither this Agreement nor any of the rights, interests or obligations
hereunder will be assigned by any of the Parties hereto (whether by sale of stock, operation of law, in connection with a merger or sale of substantially all of the assets, or otherwise) without the prior written consent of the other Parties, and
any attempt to do so will be null and void, except that any Covered Stockholder may assign all or any of its rights and obligations hereunder to any of its affiliates;
provided
,
however
, that no such assignment shall relieve the
assigning party of its obligations hereunder if such assignee does not perform such obligations. Subject to the preceding sentence, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the Parties hereto and their
respective successors and permitted assigns.
(j)
Severability
. Any term or provision of this Agreement which is invalid or
unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the sole extent of such invalidity or unenforceability without rendering invalid or unenforceable the remainder of such term or provision and the remaining terms and
D-4-7
provisions of this Agreement in any jurisdiction. If any provision of this Agreement is so broad as to be unenforceable, such provision will be interpreted to be only so broad as to be
enforceable.
(k)
No Ownership Interest
. Nothing contained in this Agreement shall be deemed, upon execution or otherwise, to vest
in Parent any direct or indirect ownership or incidence of ownership of or with respect to any Covered Shares. All rights, ownership and economic benefits of and relating to the Covered Shares shall remain vested in and belong to the Covered
Stockholders, and Parent shall have no authority to manage, direct, superintend, restrict, regulate, govern or administer any of the policies or operations of the Company or exercise any power or authority to direct the Covered Stockholders in the
voting of, or otherwise with respect to, any of the Covered Shares, except as otherwise provided herein.
(l)
Certain Definitions
.
For the purposes of this Agreement, capitalized terms used and not otherwise defined herein shall have the respective meanings ascribed to them in the Merger Agreement. Certain other terms have the meanings ascribed to them below or elsewhere in
this Agreement.
Additional Owned Shares
means, with respect to a Covered Stockholder, all such Shares
that are owned of record or beneficially by such Covered Stockholder and acquired after the date hereof (including any Shares acquired by means of purchase, dividend or distribution, or issued upon the exercise of any stock options to acquire Shares
or warrants or the conversion of any convertible securities or otherwise).
affiliate
has the meaning
set forth in the Merger Agreement;
provided
,
however
, that for purposes of this Agreement, none of the Company or the Company Subsidiaries (or any of their respective officers or directors) shall constitute an affiliate of any Covered
Stockholder.
beneficial ownership
(and related terms such as beneficially owned or
beneficial owner) has the meaning set forth in
Rule 13d-3
under the Exchange Act.
Covered Shares
means, with respect to a Covered Stockholder, the Existing Shares and Additional Owned
Shares.
Existing Shares
of a Covered Stockholder means the Shares that are owned of record or
beneficially owned by the specified Covered Stockholder as of the date hereof, as set forth opposite such Covered Stockholders name on
Schedule
1(a)
hereto.
(m)
Remedies
. The Parties hereto agree that irreparable damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the Parties shall be entitled to an injunction or injunctions to prevent breaches of this Agreement or to enforce specifically the performance of the terms and provisions hereof in addition to any other
remedy to which they are entitled at law or in equity. Any requirements for the securing or posting of any bond with such remedy are hereby waived.
(n)
Facsimile Signatures
. A signature page to this Agreement, the agreements referred to herein, and each other agreement or instrument
entered into in connection herewith or therewith or contemplated hereby or thereby, and any amendments hereto or thereto, that contains a copy of a Partys signature and that is sent by such Party or its agent with the apparent intention (as
reasonably evidenced by the actions of such Party or its agent) that it constitute such Partys execution and delivery of this Agreement or any such other document, including a document sent by means of a facsimile machine or electronic
transmission in portable document format (pdf), will be treated in all manner and respects as an original agreement or instrument and will be considered to have the same binding legal effect as if it were the original signed version
thereof delivered in person.
D-4-8
IN WITNESS WHEREOF, Parent, Sub and the Covered Stockholders have caused this Agreement to
be duly executed as of the day and year first above written.
|
|
|
MOUNT OLYMPUS HOLDINGS, INC.
|
|
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
|
OLYMPUS MERGER SUB, INC.
|
|
|
By:
|
|
/s/ Matthew H. Nord
|
Name:
|
|
Matthew H. Nord
|
Title:
|
|
Chief Executive Officer and President
|
[Signature Page to Voting AgreementMary E. West]
D-4-9
|
|
|
Covered Stockholders
|
|
MARY WEST CRT1 LLC
|
MARY WEST CRT2 LLC
|
MARY WEST CRT3 LLC
|
MARY WEST CRT4 LLC
|
MARY WEST CRT5 LLC
|
WEST INVESTMENT HOLDINGS, LLC
|
|
|
By:
|
|
/s/ Mary E. West
|
Name: Mary E. West
|
[Signature Page to Voting AgreementMary E. West]
D-4-10
Schedule 1(a)
|
|
|
|
|
Covered Stockholder
|
|
Existing Shares
|
|
Mary West CRT1 LLC
|
|
|
2,465,434
|
|
Mary West CRT2 LLC
|
|
|
2,080,675
|
|
Mary West CRT3 LLC
|
|
|
1,689,076
|
|
Mary West CRT4 LLC
|
|
|
1,162,681
|
|
Mary West CRT5 LLC
|
|
|
833,595
|
|
West Investment Holdings, LLC
|
|
|
109,474
|
|
|
|
|
|
|
Total
|
|
|
8,340,935
|
|
|
|
|
|
|
D-4-11
Schedule 5(a)
1.
|
Amended and Restated Stockholder Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.65 to Amendment No. 12
to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
2.
|
Amended and Restated Registration Rights and Coordination Agreement, dated as of March 8, 2013, among West Corporation, THL Investors, Quadrangle Investors and certain other parties thereto (filed as Exhibit 10.63
to Amendment No. 12 to the Companys Registration Statement on Form
S-1
filed on March 11, 2013 (File
No. 333-162292)).
|
D-4-12
PRELIMINARY COPIES-SUBJECT TO COMPLETION
SPECIAL MEETING OF STOCKHOLDERS OF
WEST Corporation
[
●
], 2017
PROXY VOTING INSTRUCTIONS
|
|
|
|
|
|
|
|
|
WEST CORPORATION
11808 MIRACLE HILLS DRIVE
OMAHA, NE 68154
|
|
Vote by Internet, Telephone or Mail
24 Hours a Day, 7 Days a Week
|
|
Your phone or Internet vote authorizes the named
proxies to vote your
shares in the same manner as if you marked, signed and returned your
proxy card.
|
|
VOTE BY INTERNET
Before The Meeting
- Go to
www.proxyvote.com
|
|
Use the Internet to transmit your voting instructions and for
electronic delivery of information up until 11:59 p.m. Eastern Time on [●], 2017. Have your proxy card in hand when you access the web site and follow the instructions to obtain your records and to create an electronic voting instruction
form.
|
|
During The Meeting
- Go to
www.virtualshareholdermeeting.com/WSTC2017SM
|
|
You may attend the meeting via the Internet and vote during the
meeting. Have the information that is printed in the box marked by the arrow available and follow the instructions.
|
|
VOTE BY PHONE -
1-800-690-6903
Use any touch-tone telephone to transmit your voting instructions up until 11:59 p.m. Eastern Time on [●], 2017. Have your proxy card in hand when
you call and then follow the instructions.
|
|
|
|
|
|
|
|
|
|
|
|
VOTE BY MAIL
Mark, sign and date your proxy card and return it in the postage-paid envelope we have provided or return it to Vote Processing, c/o Broadridge, 51 Mercedes
Way, Edgewood, NY 11717.
|
|
|
|
|
|
|
If you vote your proxy by Internet or by Telephone, you do NOT need
to mail back your Proxy Card.
|
|
|
|
|
TO VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS
FOLLOWS:
|
|
|
|
|
E23911-P89112
KEEP THIS PORTION FOR YOUR RECORDS
|
|
|
|
|
|
|
DETACH AND RETURN THIS PORTION
ONLY
|
|
|