UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 27, 2015
| DIAMOND FOODS, INC. |
| |
|
(Exact name of Registrant as Specified in its
Charter)
|
| Delaware |
| (State or Other Jurisdiction of Incorporation) |
| |
|
|
|
|
| |
000-51439 |
|
20-2556965 |
|
| |
(Commission File Number) |
|
(IRS Employer Identification No.) |
|
| |
|
|
|
600 Montgomery Street, 13th Floor
San Francisco, CA |
|
94111 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
| (415) 445-7444 |
| (Registrant’s Telephone Number, Including Area Code) |
| |
| N/A |
| (Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| þ |
|
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| |
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|
| o |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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|
| o |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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|
| o |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Item 1.01. Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
and Reorganization
On October 27, 2015, Diamond Foods,
Inc., a Delaware corporation (“Diamond”), Snyder’s-Lance, Inc., a North Carolina corporation (“Snyder’s-Lance”),
Shark Acquisition Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“Merger Sub”),
and Shark Acquisition Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company (“Merger
Sub II”), entered into an Agreement and Plan of Merger and Reorganization (the “Merger Agreement”), pursuant
to which Merger Sub will merge with and into Diamond, with Diamond surviving as a wholly-owned subsidiary of the Company (such
transaction, the “First Merger”), and Diamond (as the surviving corporation of the First Merger) will subsequently
merge with and into Merger Sub II, with Merger Sub II surviving as a wholly-owned subsidiary of the Company (the “Second
Merger” and, together with the First Merger, the “Merger”).
The Board of Directors of Diamond has
approved the Merger Agreement and adopted resolutions directing that the adoption of the Merger Agreement be submitted to Diamond’s
stockholders for consideration and recommending that Diamond’s stockholders adopt the Merger Agreement. The Board of Directors
of Snyder’s-Lance has approved the Merger Agreement and adopted resolutions directing that the issuance of shares of common
stock of Snyder’s-Lance in connection with the Merger be submitted to the stockholders of Snyder’s-Lance for their
approval and recommending that the stockholders approve such issuance. The sole stockholder of Merger Sub and the sole member of
Merger Sub II have each approved the Merger Agreement and the Merger.
Pursuant to the terms of the Merger
Agreement, at the effective time of the First Merger, each share of Diamond’s stock that is issued and outstanding immediately
prior to the effective time of the First Merger (other than (i) treasury shares held by Diamond, (ii) shares owned by Snyder’s-Lance,
the Merger Subs or any other subsidiary of Snyder’s-Lance and (iii) shares that are owned by stockholders who have perfected
and not withdrawn a demand for appraisal rights pursuant to Delaware law) will be canceled and converted into the right to receive
0.775 shares of Snyder’s-Lance common stock and $12.50 in cash. No fractional shares of Snyder’s-Lance common stock
will be issued in the Merger, and holders of shares of Diamond stock who would otherwise be entitled to receive a fractional share
of Snyder’s-Lance common stock will receive cash in lieu of any such fractional shares.
Snyder’s-Lance and Diamond intend
that the First Merger and the Second Merger will together qualify as a tax-free reorganization within the meaning of Section 268(a)
of the Internal Revenue Code of 1986.
The parties anticipate that the
Merger will close in the first half of calendar 2016. It is expected that Diamond’s stockholders will own approximately
26 percent of the issued and outstanding common stock of Snyder’s-Lance following the consummation of the Merger.
The Merger Agreement contains certain
closing conditions. The obligation of each party to consummate the Merger is conditioned on, among other things: (i) the adoption
of the Merger Agreement by the stockholders of Diamond; (ii) the approval by the stockholders of Snyder’s-Lance of the issuance
of shares of common stock of Snyder’s-Lance in connection with the Merger; (iii) the expiration of any applicable waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iv) the absence of any injunction or other
order or any other law issued by any governmental authority prohibiting the consummation of the transaction; (v) the effectiveness
of the registration statement with respect to Snyder’s-Lance common stock to be issued in the Merger, with no stop orders
pending or threatened; (vi) the approval for listing on the Nasdaq Global Select Market of the shares of Snyder’s-Lance common
stock to be issued in the Merger; (vii) the accuracy of each party’s representations and warranties contained in the Merger
Agreement, as further described in the Merger Agreement; and (viii) the performance of certain obligations under the Merger Agreement
by each party, as further described in the Merger Agreement.
The Merger Agreement contains certain
termination rights for both Snyder’s-Lance and Diamond, including the right of either party to terminate the Merger Agreement
if the Merger has not been completed by May 27, 2016 (subject to a five month extension if required to obtain certain regulatory
approvals), and further provides that, upon termination of the Merger Agreement under certain circumstances, either Snyder’s-Lance
or Diamond could be required to pay a termination fee to the other party.
The Merger Agreement contains customary
representations, warranties and covenants by each of the parties, including, among other things, covenants and agreements relating
to the conduct of the business of each of Diamond and Snyder’s-Lance between the date of the signing of the Merger Agreement
and the consummation of the Merger.
The Merger Agreement contains a customary
non-solicitation covenant prohibiting Diamond from (a) soliciting, providing non-public information or engaging or participating
in any discussions or negotiations concerning proposals relating to alternative business combination transactions, or (b) entering
into an acquisition agreement in connection with such an alternative business combination transaction, in each case, except as
permitted under the Merger Agreement. The Merger Agreement also contains a customary non-solicitation covenant prohibiting Snyder’s-Lance
from (a) soliciting, providing non-public information or engaging or participating in any discussions or negotiations concerning
proposals relating to certain alternative business combination transactions, or (b) entering into an acquisition agreement in connection
with such an alternative business combination transaction, in each case, except as permitted under the Merger Agreement. Notwithstanding
this limitation, prior to a party’s stockholders approving the transaction, such party may under certain circumstances provide
information to and participate in discussions or negotiations with third parties with respect to an unsolicited alternative transaction
proposal that its board of directors has determined in good faith constitutes or could reasonably be expected to lead to or result
in a superior proposal. Each party’s board of directors may change its recommendation to its stockholders (subject to the
other party’s right to terminate the Merger Agreement following such change in recommendation) in response to a superior
proposal or terminate the Merger Agreement to enter into a definitive agreement for such superior proposal if such party’s
board of directors determines in good faith that the failure to take such action would be inconsistent with such party’s
directors’ fiduciary duties to such party’s stockholders under applicable law.
The foregoing description of the Merger
and the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, a
copy of which is filed herewith as Exhibit 2.1 and incorporated herein by reference.
The Merger Agreement and the Snyder’s-Lance
Voting Agreements (defined below) have been attached to provide investors with information regarding their terms. They are not
intended to provide any other factual information about Snyder’s-Lance or Diamond. In particular, the assertions embodied
in the representations, warranties, and covenants contained in the Merger Agreement were made only for purposes of the Merger Agreement
and as of specified dates, were solely for the benefit of the parties to the Merger Agreement, and are subject to limitations agreed
upon by the parties to the Merger Agreement, including being qualified by confidential disclosure schedules provided by each party
in connection with the execution of the Merger Agreement. These disclosure schedules contain information that modifies, qualifies
and creates exceptions to the representations and warranties set forth in the Merger Agreement. Moreover, certain representations
and warranties in the Merger Agreement have been made for the purposes of allocating risk between the parties to the Merger Agreement
instead of establishing matters of fact. Accordingly, the representations and warranties in the Merger Agreement may not constitute
the actual state of facts about Snyder’s-Lance, Diamond, Merger Sub or Merger Sub II. Moreover, the representations and warranties
are subject to a contractual standard of materiality that may be different from what may be viewed as material to stockholders
and information concerning the subject matter of the representations, warranties and covenants may change after the date of the
Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures. Investors should not rely
on the representations, warranties and covenants or any description thereof as characterizations of the actual state of facts or
condition of Snyder’s-Lance or Diamond.
Voting Agreements
Concurrently with the execution of the Merger Agreement,
Snyder’s-Lance entered into voting agreements with certain Diamond stockholders (the “Diamond Voting Agreements”)
and Diamond entered into voting agreements with certain Snyder’s-Lance stockholders have entered into voting agreements (the
“Snyder’s-Lance Voting Agreements” and, together with the Diamond Voting Agreements, the “Voting Agreements”).
Pursuant to the Voting Agreements, each of the respective stockholders that are a party thereto has agreed, among other things,
to vote in favor of the approval of the execution of the Merger Agreement and/or the issuance of the shares of common stock of
Snyder’s-Lance in connection with the Merger, and in favor of any other matter reasonably relating to the consummation or
facilitation of, or otherwise in furtherance of, the Merger.
The foregoing description of the Snyder’s-Lance
Voting Agreements does not purport to be complete and is qualified in its entirety by reference to the form of Snyder’s-Lance
Voting Agreements, a copy of which is filed herewith as Exhibit 2.2 and incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws;
Change in Fiscal Year.
On October 27, 2015, the Board of Directors
of Diamond amended and restated Diamond’s Restated Bylaws, as previously amended (the “Bylaws”),
by adding a new Article X to the Bylaws, which provides that, unless Diamond consents in writing to an alternative forum, any Court
of the State of Delaware shall be the sole and exclusive forum for any and all internal corporate claims, including (i) any derivative
action or proceeding brought on behalf of Diamond, (ii) any action asserting a claim of breach of fiduciary duty owed by any stockholder,
director, officer, employee or agent of Diamond to Diamond or Diamond’ stockholders, (iii) any action asserting a claim pursuant
to or under any provision of the Delaware General Corporation Law or Diamond’s certificate of incorporation or Bylaws, (iv)
any action to interpret, apply, enforce or determine the validity of the Certificate of Incorporation or Bylaws or (v) any action
asserting a claim governed by the internal affairs doctrine. If no Court of the State of Delaware has jurisdiction over such action
or proceeding, the sole and exclusive forum for such action or proceeding shall be the United States District Court for the District
of Delaware.
The foregoing description
of the Bylaws is qualified in its entirety by reference to the Bylaws, a copy of which is filed as Exhibit 3.2 to this Current
Report on Form 8-K and incorporated herein by reference.
Item 8.01. Other Events.
On October 28, 2015, Diamond issued a press
release announcing the execution of the Merger Agreement. A copy of the press release is filed as Exhibit 99.1 to this Current
Report on Form 8-K and is incorporated by reference herein.
Forward-Looking Statements
The foregoing paragraphs
contain forward-looking statements that involve estimates, assumptions, risks and uncertainties. Any statements about expectations,
beliefs, plans, objectives, assumptions or future events or performance are not historical facts and may be forward-looking. Words
or phrases such as “anticipates,” “believes,” “could,” “estimates,” “expects,”
“intends,” “plans,” “predicts,” “projects,” “may,” “will,”
“should,” “continue,” “ongoing,” “future,” “potential” and similar
words or phrases identify forward-looking statements. The forward-looking statements in this document address a variety of subjects
including, for example, the expected date of closing of the acquisition and the potential benefits of the merger. Forward-looking
statements involve estimates, assumptions, risks and uncertainties that could cause actual results to differ materially from those
expressed in the forward-looking statements. The following factors, among others, could cause actual results to differ materially
from the forward-looking statements: the risk that the transaction will not close when expected or at all; the risk that the operations
of the two companies will not be integrated successfully; failure to achieve the anticipated benefits and synergies of the transaction;
the risk that businesses of Snyder’s-Lance or Diamond will be adversely impacted during the pendency of the transaction;
costs associated with the transaction; matters arising in connection with the parties’ efforts to comply with and satisfy
applicable regulatory approvals and closing conditions relating to the transaction; and other events that may adversely impact
the completion of the transaction, including industry or economic conditions outside of the control of Snyder’s-Lance or
Diamond. In addition, actual results are subject to other risks and uncertainties that relate more broadly to the businesses of
Snyder’s-Lance or Diamond, including those more fully described in Snyder’s-Lance filings with the SEC including its
annual report on Form 10-K for the fiscal year ended January 3, 2015, and its most recent quarterly report filed on Form 10-Q for
the quarter year ended July 4, 2015, and those more fully described in Diamond’s filings with the SEC, including its annual
report on Form 10-K for the fiscal year ended July 31, 2015.
You should not unduly rely
on forward-looking statements because actual results could differ materially from those expressed in any forward-looking statements.
In addition, any forward-looking statement applies only as of the date on which it is made. We do not plan to update, and undertake
no obligation to update, any forward-looking statements to reflect events or circumstances that occur after the date on which those
statements are made, or to reflect the occurrence of unanticipated events.
Additional Information
and Where to Find It
This communication does
not constitute an offer to sell or a solicitation of an offer to sell or a solicitation of an offer to buy any securities or a
solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation
or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering
of securities shall be made except by means of a prospectus
meeting the requirements of Section 10 of the Securities
Act of 1933, as amended, and otherwise in accordance with applicable law. This communication is being made in respect of the proposed
business combination transaction between Snyder’s-Lance and Diamond. The proposed transaction will be submitted to the stockholders
of Snyder’s-Lance and Diamond for their consideration. In connection with the issuance of common stock of Snyder’s-Lance
in the proposed transaction, Snyder’s-Lance will file with the SEC a Registration Statement on Form S-4 that will include
a preliminary joint proxy statement/prospectus regarding the proposed transaction and each of Snyder’s-Lance and Diamond
plans to file with the SEC other documents regarding the proposed transaction. After the registration statement has been declared
effective by the SEC, a definitive proxy statement/prospectus will be mailed to each Diamond and Snyder’s-Lance stockholder
entitled to vote at the special meetings in connection with the proposed transaction. INVESTORS ARE URGED TO READ THE JOINT PROXY
STATEMENT/PROSPECTUS AND ANY OTHER DOCUMENTS RELATING TO THE TRANSACTION FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY IF
AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors may obtain
copies of the joint proxy statement/prospectus (when available) and all other documents filed with the SEC regarding the proposed
transaction, free of charge, at the SEC’s website (http://www.sec.gov). Investors may also obtain these documents,
free of charge, from Snyder’s-Lance’s website (www.snyderslance.com) under the link “Investor Relations”
and then under the tab “Financial Information” then “SEC Filings” or by directing a request to the Company’s
investor relations officer at (704) 557-8386 and, in the case of Diamond, at www.diamond.com or by directing a request to Katie Turner at (415) 230-7952.
Participants in
the Solicitation
Snyder’s-Lance,
Diamond and certain of their respective directors, executive officers and other members of management and employees may be deemed
to be “participants” in the solicitation of proxies in connection with the proposed transaction. Additional information
regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of Diamond stockholders in
connection with the proposed transaction and a description of their direct and indirect interest, by security holdings or otherwise,
will be set forth in the joint proxy statement/prospectus filed with the SEC in connection with the proposed transaction. You can
find information about Diamond’s executive officers and directors in Diamond’s definitive proxy statement filed with
the SEC on November 25, 2014. You can also obtain free copies of these documents from Diamond using the contact information above.
You can find information about Snyder’s-Lance’s executive officers and directors in its definitive proxy statement
filed with the SEC on April 1, 2015 and in its Annual Report on Form 10-K filed with the SEC on March 4, 2015 and its Current
Report on Form 8-K filed with the SEC on October 1, 2015. You can also obtain free copies of these documents from Snyder’s-Lance
or Diamond using the contact information above.
Item 9.01. Financial Statements and Exhibits
| (d) | Exhibits. The following exhibits are filed herewith: |
| Exhibit No. |
|
Description |
| |
|
|
| 2.1 |
|
Agreement and Plan of Merger and
Reorganization, dated as of October 27, 2015, among Snyder’s-Lance, Inc., Acquisition Sub I, Inc., Acquisition Sub II,
Inc., and Diamond Foods, Inc. |
| |
|
|
| 2.2 |
|
Form of Snyder’s-Lance Voting
Agreement, dated October 27, 2015, by and among Diamond and the Snyder’s-Lance stockholders listed therein. |
| |
|
|
| 3.2 |
|
Amended and Restated Bylaws |
| |
|
|
| 99.1 |
|
Joint Press Release of Diamond
Foods, Inc. and Snyder’s-Lance, Inc., dated October 28, 2015. |
SIGNATURE
Pursuant to the requirements
of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned
hereunto duly authorized.
| Date: October 28, 2015 |
DIAMOND FOODS, INC. |
| |
|
|
| |
By: |
/s/ Brian J. Driscoll |
| |
|
Brian J. Driscoll |
| |
|
President and Chief Executive Officer |
Exhibit Index
| Exhibit No. |
|
Description |
| |
|
|
| 2.1 |
|
Agreement and Plan of Merger and Reorganization, dated as of October
27, 2015, among Snyder’s-Lance, Inc., Acquisition Sub I, Inc., Acquisition Sub II, Inc., and Diamond Foods, Inc. |
| |
|
|
| 2.2 |
|
Form of Snyder’s-Lance Voting Agreement, dated October 27, 2015,
by and among Diamond and the Snyder’s-Lance stockholders listed therein. |
| |
|
|
| 3.2 |
|
Amended and Restated Bylaws |
| |
|
|
| 99.1 |
|
Joint Press Release of Diamond Foods, Inc. and Snyder’s-Lance,
Inc., dated October 28, 2015. |
Exhibit 2.1
Agreement
and Plan of Merger and Reorganization
among
Snyder’s-Lance,
Inc.,
a
North Carolina corporation;
Shark
Acquisition Sub I, Inc.,
a Delaware corporation,
Shark
Acquisition Sub II, LLC,
a Delaware limited liability company, and
Diamond
Foods, Inc.,
a Delaware corporation
Dated as of October 27, 2015
Table
of Contents
| Article
1 Description of Transaction |
|
2 |
| |
Section 1.1 |
The Mergers |
|
2 |
| |
Section 1.2 |
Effects of the Mergers |
|
2 |
| |
Section 1.3 |
Closing; Effective Time |
|
2 |
| |
Section 1.4 |
Governing Documents; Directors, Members and Officers |
|
3 |
| |
Section 1.5 |
Conversion of Company Common Stock; Restricted Stock, Options and RSUs |
|
4 |
| |
Section 1.6 |
Dissenting Shares |
|
7 |
| |
Section 1.7 |
Closing of the Company’s Transfer Books |
|
8 |
| |
Section 1.8 |
Exchange of Certificates |
|
8 |
| |
Section 1.9 |
Tax Consequences |
|
10 |
| |
Section 1.10 |
Further Action |
|
10 |
| |
|
|
|
|
| Article
2 Representations and Warranties of the Company |
|
10 |
| |
Section 2.1 |
Corporate Existence |
|
11 |
| |
Section 2.2 |
Capitalization |
|
11 |
| |
Section 2.3 |
Corporate Authority |
|
13 |
| |
Section 2.4 |
Governmental Approvals and Consents; Non-Contravention |
|
14 |
| |
Section 2.5 |
Compliance with Laws; Governmental Authorizations |
|
15 |
| |
Section 2.6 |
SEC Filings |
|
16 |
| |
Section 2.7 |
NASDAQ Compliance |
|
16 |
| |
Section 2.8 |
Financial Statements; Liabilities; Internal Controls |
|
17 |
| |
Section 2.9 |
Absence of Certain Changes or Events |
|
18 |
| |
Section 2.10 |
Employees; Employee Benefits |
|
18 |
| |
Section 2.11 |
Contracts |
|
22 |
| |
Section 2.12 |
Litigation |
|
24 |
| |
Section 2.13 |
Intellectual Property Rights |
|
24 |
| |
Section 2.14 |
Tax Matters |
|
25 |
| |
Section 2.15 |
Environmental Matters |
|
26 |
| |
Section 2.16 |
Real Property; Personal Property |
|
27 |
| |
Section 2.17 |
Quality and Safety of Products |
|
27 |
| |
Section 2.18 |
Customers, Suppliers and Distributors |
|
28 |
| |
Section 2.19 |
Company Information |
|
28 |
| |
Section 2.20 |
Finders; Brokers |
|
28 |
| |
Section 2.21 |
Opinion of Company Financial Advisor |
|
28 |
| |
Section 2.22 |
Insurance Policies |
|
28 |
| |
Section 2.23 |
Excluded Subsidiary |
|
29 |
| |
Section 2.24 |
No Other Representations or Warranties |
|
29 |
| |
|
|
|
|
| Article
3 Representations and Warranties of Parent and Merger Subs |
|
29 |
| |
Section 3.1 |
Corporate Existence |
|
30 |
| |
Section 3.2 |
Capitalization |
|
30 |
| |
Section 3.3 |
Corporate Authority |
|
31 |
| |
Section 3.4 |
Governmental Approvals and Consents; Non-Contravention |
|
32 |
| |
Section 3.5 |
Compliance with Laws; Governmental Authorizations |
|
33 |
| |
Section 3.6 |
SEC Filings |
|
33 |
| |
Section 3.7 |
NASDAQ Compliance |
|
34 |
| |
Section 3.8 |
Financial Information, Liabilities, Internal Controls |
|
34 |
| |
Section 3.9 |
Absence of Certain Changes or Events |
|
35 |
| |
Section 3.10 |
Contracts |
|
35 |
| |
Section 3.11 |
Litigation |
|
36 |
| |
Section 3.12 |
Intellectual Property |
|
36 |
| |
Section 3.13 |
Tax Matters |
|
37 |
| |
Section 3.14 |
Environmental Matters |
|
37 |
| |
Section 3.15 |
Financial Capacity |
|
37 |
| |
Section 3.16 |
Merger Subs |
|
39 |
| |
Section 3.17 |
Quality and Safety of Products |
|
39 |
| |
Section 3.18 |
Customers, Suppliers and Distributors |
|
39 |
| |
Section 3.19 |
Parent Information |
|
39 |
| |
Section 3.20 |
Ownership of Shares |
|
40 |
| |
Section 3.21 |
Finders; Brokers |
|
40 |
| |
Section 3.22 |
Opinion of Parent Financial Advisor |
|
40 |
| |
Section 3.23 |
No Other Representations or Warranties |
|
40 |
| |
|
|
|
|
| Article
4 Certain Covenants |
|
40 |
| |
Section 4.1 |
Covenants of the Company |
|
40 |
| |
Section 4.2 |
Covenants of Parent |
|
44 |
| |
Section 4.3 |
Access to Information; Confidentiality |
|
46 |
| |
Section 4.4 |
Registration Statement; Joint Proxy Statement and Prospectus |
|
46 |
| |
Section 4.5 |
Stockholder Meetings |
|
47 |
| |
Section 4.6 |
No Solicitation of Transactions by the Company |
|
50 |
| |
Section 4.7 |
No Solicitation of Transactions by Parent |
|
54 |
| |
Section 4.8 |
Appropriate Action; Consents; Filings |
|
57 |
| |
Section 4.9 |
Parent Financing |
|
60 |
| |
Section 4.10 |
Certain Notices |
|
63 |
| |
Section 4.11 |
Public Announcements |
|
64 |
| |
Section 4.12 |
Employee Benefit Matters |
|
64 |
| |
Section 4.13 |
Indemnification of Directors and Officers |
|
67 |
| |
Section 4.14 |
Certain Tax Matters |
|
69 |
| |
Section 4.15 |
State Takeover Laws |
|
69 |
| |
Section 4.16 |
Section 16 Matters |
|
69 |
| |
Section 4.17 |
Listing |
|
70 |
| |
Section 4.18 |
Board of Directors |
|
70 |
| |
Section 4.19 |
Merger Sub |
|
70 |
| |
|
|
|
|
| Article
5 Conditions to Consummation of the Merger |
|
70 |
| |
Section 5.1 |
Conditions Precedent to Obligations of Each Party Under This Agreement |
|
70 |
| |
Section 5.2 |
Conditions to Obligations of Parent and Merger Subs |
|
71 |
| |
Section 5.3 |
Conditions to Obligations of Company |
|
72 |
| |
|
|
|
|
| Article
6 Termination, Amendment and Waiver |
|
73 |
| |
Section 6.1 |
Termination |
|
73 |
| |
Section 6.2 |
Effect of Termination; Termination Fees |
|
75 |
| |
Section 6.3 |
Amendment |
|
78 |
| |
Section 6.4 |
Waiver |
|
78 |
| |
Section 6.5 |
General |
|
78 |
| |
|
|
|
|
| Article
7 Miscellaneous Provisions |
|
78 |
| |
Section 7.1 |
Non-Survival of Representations and Warranties |
|
78 |
| |
Section 7.2 |
Fees and Expenses |
|
78 |
| |
Section 7.3 |
Notices |
|
79 |
| |
Section 7.4 |
Severability |
|
80 |
| |
Section 7.5 |
Entire Agreement |
|
80 |
| |
Section 7.6 |
Assignment; Third Party Beneficiaries |
|
81 |
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Section 7.7 |
Specific Performance |
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81 |
| |
Section 7.8 |
Governing Law |
|
81 |
| |
Section 7.9 |
Consent to Jurisdiction |
|
82 |
| |
Section 7.10 |
WAIVER OF JURY TRIAL |
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82 |
| |
Section 7.11 |
Counterparts |
|
83 |
| |
Section 7.12 |
Rules of Construction |
|
83 |
| |
Section 7.13 |
No Recourse to Financing Sources |
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83 |
Exhibits
| Exhibit A |
- |
Certain Definitions and Index of Defined Terms |
| Exhibit B |
- |
Form of Certificate of Incorporation of First Step Surviving Corporation |
| Exhibit C |
- |
Form of Certificate of Formation of the Final Surviving Company |
| Exhibit D |
- |
Form of Limited Liability Company Agreement of the Final Surviving Company |
| Exhibit E-1 |
- |
Form of Company Tax Opinion |
| Exhibit E-2 |
- |
Form of Parent Representation Letter |
| Exhibit E-3 |
- |
Form of Company Representation Letter |
AGREEMENT
AND PLAN OF MERGER AND REORGANIZATION
This
Agreement and Plan of Merger and Reorganization (“Agreement”) is made and entered into as of October 27,
2015 (the “Agreement Date”), by and among Snyder’s-Lance, Inc., a North
Carolina corporation (“Parent”), Shark Acquisition Sub I, Inc.,
a Delaware corporation and a wholly-owned Subsidiary of Parent (“Merger Sub”), Shark
Acquisition Sub II, LLC, a Delaware limited liability company and a wholly-owned Subsidiary of Parent (“Merger
Sub II” and, together with Merger Sub, “Merger Subs”), and Diamond Foods,
Inc., a Delaware corporation (the “Company” and, collectively, the “Parties”).
Recitals
A.
Parent, Merger Sub and the Company intend to effect a merger of Merger Sub with and into the Company in accordance
with this Agreement and the DGCL (the “First Merger”). Upon consummation of the First Merger, Merger Sub will
cease to exist, and the Company will become a wholly-owned Subsidiary of Parent. Parent, Merger Sub II and the Company intend
to effect, following the consummation of the First Merger, the merger of the First Step Surviving Corporation (as defined in Section
1.1(a)) with and into Merger Sub II in accordance with this Agreement and the DGCL and the DLLCA (the “Second Merger”
and together or in seriatim with the First Merger, as appropriate, the “Merger”). Upon consummation
of the Second Merger, the First Step Surviving Corporation will cease to exist, and Merger Sub II will continue to exist as a
wholly-owned Subsidiary of Parent.
B.
The board of directors of the Company (the “Board of Directors” or “Company Board”)
has (1) declared this Agreement and the transactions contemplated by this Agreement and the documents referenced herein, including
the Merger (collectively, the “Transactions”), upon the terms and subject to the conditions set forth herein,
advisable, fair to and in the best interests of the Company and the Company Stockholders, (2) approved this Agreement and the
Merger in accordance with the DGCL and (3) adopted a resolution directing that the adoption of this Agreement be submitted to
the Company Stockholders for consideration and recommending that the Company Stockholders adopt this Agreement (the “Company
Board Recommendation”).
C. The board
of directors of Parent (the “Parent Board”) has (1) approved this Agreement and the Transactions, including
the Merger and the issuance of shares of Parent Common Stock and cash in the First Merger, upon the terms and subject to the conditions
set forth herein, and (2) adopted a resolution directing that the approval of the issuance of Parent Common Stock in the First
Merger be submitted to the Parent Stockholders for consideration and recommending that all of the Parent Stockholders approve
the issuance of Parent Common Stock in the First Merger.
D. The board
of directors of Merger Sub and the board of managers of Merger Sub II have declared this Agreement and the Transactions, including
the Merger, upon the terms and subject to the conditions set forth herein, advisable, fair to and in the best interests of Merger
Sub and Merger Sub II, respectively, and the stockholder of Merger Sub and the member(s) of Merger Sub II, respectively, have
approved this Agreement and the Merger in accordance with the DGCL and the DLLCA, respectively.
E. Parent, Merger
Subs and the Company intend that the First Merger and the Second Merger will together qualify as a tax-free “reorganization”
within the meaning of Section 368(a) of the Code.
F. In order
to induce Parent to enter into this Agreement and cause the Merger to be consummated, certain stockholders of the Company are
executing voting agreements in favor of Parent concurrently with the execution of this Agreement (the “Company Stockholder
Voting Agreements”).
G. In order
to induce the Company to enter into this Agreement and consummate the Merger, certain stockholders of Parent are executing voting
agreements in favor of the Company concurrently with the execution of this Agreement (the “Parent Stockholder Voting
Agreements”).
Agreement
The Parties to this
Agreement, intending to be legally bound, agree as follows:
Article
1
Description
of Transaction
Section 1.1 The
Mergers.
(a) Merger of Merger
Sub into the Company. Upon the terms and subject to the conditions set forth in this Agreement, at the Effective Time (as
defined in Section 1.3), Merger Sub shall be merged with and into the Company. By virtue of the First Merger, at the Effective
Time, the separate existence of Merger Sub shall cease and the Company shall continue as the surviving corporation in the First
Merger (the “First Step Surviving Corporation”).
(b) Merger of the
First Step Surviving Corporation into Merger Sub II. Upon the terms and subject to the conditions set forth in this Agreement,
at the Second Effective Time (as defined in Section 1.3), the First Step Surviving Corporation shall be merged with and
into Merger Sub II. By virtue of the Second Merger, at the Second Effective Time, the separate existence of the First Step Surviving
Corporation shall cease and Merger Sub II shall continue as the surviving limited liability company in the Second Merger (the
“Final Surviving Company”) (it being understood that references to “Merger Sub II” shall be deemed
to be references to the “Final Surviving Company” to the extent such references relate to the period after the Second
Effective Time).
Section 1.2 Effects
of the Mergers. Each of the First Merger and Second Merger shall have the effects set forth in this Agreement and in the applicable
provisions of the DGCL and the DLLCA.
Section 1.3 Closing;
Effective Time. The consummation of the First Merger (the “Closing”) shall take place at the offices of
Fenwick & West LLP, 555 California Street, San Francisco, California 94104,
on a date to be agreed by Parent and the Company, which shall be
no later than the second
Business Day after the satisfaction or waiver of the last to be satisfied or waived of the conditions set forth in Article
5 (other than the conditions set forth in Section 5.2(d) and Section 5.3(d), which by their nature are to be
satisfied at the Closing, but subject to the satisfaction or waiver of each of such conditions). The date on which the Closing
actually takes place is referred to as the “Closing Date.” Subject to the provisions of this Agreement, a certificate
of merger that the Parties shall agree satisfies the applicable requirements of the DGCL (the “First Certificate of Merger”)
shall be duly executed by the Company and concurrently with or as soon as practicable following the Closing shall be filed with
the Office of the Secretary of State of the State of Delaware. The First Merger shall become effective at the time of the filing
of the First Certificate of Merger with the Secretary of State of the State of Delaware or at such later time as may be agreed
by Parent and the Company and specified in the First Certificate of Merger (the time as of which the First Merger becomes effective
being referred to as the “Effective Time”). Promptly following the Effective Time, but in no event later than
two Business Days thereafter, a certificate of merger that the Parties shall agree satisfies the applicable requirements of the
DGCL and the DLLCA (the “Second Certificate of Merger”) shall be duly executed by Merger Sub II and filed with
the Office of the Secretary of State of the State of Delaware. The Second Merger shall become effective at the time of the filing
of the Second Certificate of Merger with the Secretary of State of the State of Delaware (the “Second Effective Time”).
Section 1.4 Governing
Documents; Directors, Members and Officers. Unless otherwise determined by Parent and the Company prior to the Effective Time:
(a) the certificate
of incorporation of the First Step Surviving Corporation shall be amended and restated immediately after the Effective Time to
read in the form of Exhibit B;
(b) the Bylaws of
the First Step Surviving Corporation shall be amended and restated as of the Effective Time to conform to the Bylaws of Merger
Sub as in effect immediately prior to the Effective Time;
(c) the directors
and officers of the First Step Surviving Corporation immediately after the Effective Time shall be the respective individuals
who are directors and officers of Merger Sub immediately prior to the Effective Time;
(d) the certificate
of formation of the Final Surviving Company shall be amended and restated immediately after the Second Effective Time to read
in the form of Exhibit C;
(e) the limited liability
company agreement of the Final Surviving Company shall be amended and restated as of the Second Effective Time to read in the
form of Exhibit D; and
(f) the board of managers
of the Final Surviving Company immediately after the Second Effective Time shall be the respective individuals who are the members
of the board of managers of Merger Sub II immediately prior to the Second Effective Time.
Section 1.5 Conversion
of Company Common Stock; Restricted Stock, Options and RSUs.
(a) At the Effective
Time, by virtue of the First Merger and without any further action on the part of Parent, Merger Sub, the Company or any equityholder
of the Company:
(i) Treasury Shares.
All shares of Company Common Stock that are owned by the Company as treasury stock immediately prior to the Effective Time shall
be cancelled and extinguished without any conversion or payment of any property or consideration, and shall cease to exist;
(ii) Company Common
Stock Held by Parent, Merger Subs or any Subsidiaries of Parent. Any shares of Company Common Stock held by Parent, Merger
Subs or any other Subsidiary of Parent immediately prior to the Effective Time shall be cancelled and extinguished without any
conversion or payment of any property or consideration, and shall cease to exist;
(iii) Company Common
Stock. Except as provided in clauses “(i)” and “(ii)” above and subject to Section 1.5(b) and
Section 1.5(c), each share of Company Common Stock, excluding Company Restricted Stock, that is outstanding immediately
prior to the Effective Time (other than Dissenting Shares) shall be cancelled and automatically converted into the right to receive
(A) an amount in cash, without interest, equal to $12.50 (the “Per Share Cash Consideration”) and (B) 0.775
of a share of Parent Common Stock (the “Per Share Stock Consideration” and together with the Per Share Cash
Consideration, the “Merger Consideration”). Shares of Company Restricted Stock shall be cancelled and automatically
converted into the right to receive the Merger Consideration; provided, however, that such Merger Consideration shall be
unvested and subject to the same repurchase option, risk of forfeiture or other condition that the Company Restricted Stock was
subject to immediately prior to the Effective Time, taking into account the transactions that are the subject of this Agreement.
Notwithstanding the foregoing, each share of Company Restricted Stock held by a non-employee director of the Company that is outstanding
as of immediately prior to the Effective Time shall be cancelled and automatically converted into the right to receive the Merger
Consideration.
(iv) Company Options.
Each Company Option (whether vested or unvested) shall be assumed by Parent and shall become an option to acquire Parent Common
Stock, on the same terms and conditions as were applicable under the applicable Company Equity Plan and Company Option agreement
in effect immediately prior to the Effective Time, taking into account the transactions that are the subject of this Agreement,
as follows:
(1) the number of
shares of Parent Common Stock subject to each Company Option assumed by Parent shall be determined by multiplying the number of
shares of Company Common Stock that were subject to such Company Option immediately prior to the Effective Time by the Exchange
Ratio, and rounding the resulting number down to the nearest whole number of shares of Parent Common Stock; and
(2) the per share
exercise price for the Parent Common Stock issuable upon exercise of each Company Option assumed by Parent shall be determined
by dividing the per share exercise price of Company Common Stock subject to such Company Option, as in effect immediately prior
to the Effective Time, by the Exchange Ratio, and rounding the resulting exercise price up to the nearest whole cent.
Any restriction on the exercise of any
Company Option assumed by Parent shall continue in full force and effect and the term, exercisability, vesting schedule and other
provisions of such Company Option shall otherwise remain unchanged as a result of the assumption of such Company Option, in each
case except to the extent otherwise provided in any Company Equity Plan, the Company Change in Control Plan, or any stock option
or other agreement between the holder of a Company Option and the Company and taking into account the transactions that are the
subject of this Agreement. Within five Business Days following the Effective Time, Parent shall deliver to any holder of a Company
Option an appropriate notice setting forth such former participants’ rights with respect to the Company Options assumed
by Parent, as provided in this Section 1.5(a)(iv). Notwithstanding the foregoing, any Company Option held by a non-employee
director of the Company that is outstanding as of immediately prior to the Effective Time shall not be assumed by Parent and shall
instead be cancelled in exchange for a payment by Parent of (x) an amount in cash equal to the product of (1) the aggregate number
of shares of Company Common Stock subject to such Company Option multiplied by (2) the excess, if any, of the Per Share Cash Consideration
over the product of (I) the applicable per share exercise price under such Company Option multiplied by (II) the Cash Consideration
Percentage, and (y) a number of shares of Parent Common Stock equal to the quotient of (1) the product of (I) the aggregate number
of shares of Company Common Stock subject to such Company Option multiplied by (II) the excess, if any, of the Per Share Stock
Consideration Value over the product of (A) the applicable per share exercise price under such Company Option multiplied by (B)
the Stock Consideration Percentage divided by (2) the Parent Stock Transaction Value.
(v) Company RSUs.
Each Company RSU that is unexpired, unsettled and outstanding as of the Effective Time shall be assumed by Parent and shall become
a RSU to receive, on the same terms and conditions as were applicable under the applicable Company Equity Plan and Company RSU
agreement in effect immediately prior to the Effective Time, a number of shares of Parent Common Stock equal to the number of
shares of Company Common Stock that were subject to such Company RSU immediately prior to the Effective Time multiplied by the
Exchange Ratio, and rounding the resulting number down to the nearest whole number of shares of Parent Common Stock. Any restriction
on the settlement of any Company RSU assumed by Parent shall continue in full force and effect and the term, settlement terms,
vesting schedule and other provisions of such Company RSU shall otherwise remain unchanged as a result of the assumption and conversion
of such Company RSU, in each case except to the extent otherwise provided in any Company Equity Plan, the Company Change in Control
Plan, or any RSU or other agreement between the holder of a Company RSU and the Company and taking into account the transactions
that are the subject of this Agreement. Within five Business Days following the Effective Time, Parent shall deliver to any holder
of a Company RSU an appropriate notice setting forth such former participants’ rights with respect to the Company RSUs assumed
by Parent, as provided in this Section 1.5(a)(v). Notwithstanding the foregoing, any Company RSU held by a non-employee
director of the Company that is outstanding as of immediately prior to the Effective Time shall not be assumed by Parent and shall
instead be
cancelled and automatically
converted into the right to receive the Merger Consideration for each share of Company Common Stock that is subject to the Company
RSU.
(vi) Company Performance
RSUs. (A) Each 2015 Company Performance RSU that is unexpired, unsettled and outstanding as of the Effective Time shall be
assumed by Parent and shall become a RSU to receive, on the same terms and conditions as were applicable under the applicable
Company Equity Plan and 2015 Company Performance RSU agreement in effect immediately prior to the Effective Time, a number of
shares of Parent Common Stock equal to (1) the number of shares of Company Common Stock equal to the Target Number of Award Units
as set forth in each Notice of Grant of Award and Award Agreement pursuant to which Company Performance RSUs were granted multiplied
by (2) the Exchange Ratio, and rounding the resulting number down to the nearest whole number of shares of Parent Common Stock;
provided, however, that any performance metric, terms or conditions that applied to such Company Performance RSU shall
be deemed satisfied as of immediately prior to the Effective Time and such Company Performance RSU shall vest and become payable
by Parent on the date upon which the applicable Company Common Stock subject to the Company Performance RSUs would have vested
under the time-based vesting terms set forth in the Performance-Based Restricted Stock Unit Award Agreement governing such Company
Performance RSU, it being understood that pursuant to this provision,
a portion of such Company Performance RSUs would be deemed immediately vested upon the Effective Time correlating to the portion
of the Measurement Period (as defined in the Company Performance RSU) completed as of the Effective Time. Except as set
forth in the immediately preceding sentence, any restriction on the settlement of any 2015 Company Performance RSU assumed by
Parent shall continue in full force and effect and the term, settlement terms, vesting schedule and other provisions of such 2015
Company Performance RSU shall otherwise remain unchanged as a result of the assumption and conversion of such Company Performance
RSU, in each case except to the extent otherwise provided in any Company Equity Plan, the Company Change in Control Plan, or any
Performance RSU or other agreement between the holder of a Company Performance RSU and the Company and taking into account the
transactions that are the subject of this Agreement. Within five Business Days following the Effective Time, Parent shall deliver
to any holder of a 2015 Company Performance RSUs an appropriate notice setting forth such former participants’ rights with
respect to the 2015 Company Performance RSUs assumed by Parent, as provided in this Section 1.5(a)(vi).
(B) Each 2014 Company
Performance RSU that is unexpired, unsettled and outstanding as of the Effective Time shall be, by virtue of the occurrence of
the Effective Time and without any action on the part of Parent, Merger Sub, the Company, the holder of such 2014 Company Performance
RSU or any other Person, cancelled and automatically converted into the right to receive the product of (1) the Merger Consideration
multiplied by (2) the number of shares of Company Common Stock equal to the Target Number of Award Units as set forth in each
Notice of Grant of Award and Award Agreement pursuant to which Company Performance RSUs were granted.
(vii) Merger Sub.
Each share of the Common Stock, $0.01 par value per share, of Merger Sub outstanding immediately prior to the Effective Time shall
be converted into one share of common stock of the First Step Surviving Corporation.
(b) If, during the
period from the Agreement Date through the Effective Time, the outstanding shares of Company Common Stock or Parent Common Stock
are changed into a different number or class of shares by reason of any stock split, division or subdivision of shares, stock
dividend, reverse stock split, consolidation of shares, reclassification, recapitalization or other similar transaction, or if
a stock dividend is declared by the Company or Parent during such period, or a record date with respect to any such event shall
occur during such period, then the components of the Merger Consideration, the Exchange Ratio and the other terms hereof shall
be adjusted to the extent appropriate to provide the same economic effect as contemplated by this Agreement prior to such event.
(c) No fractional
shares of Parent Common Stock or options, RSUs or other equity awards for a fractional share of Parent Common Stock shall be issued
in connection with the First Merger, and no certificates, scrips or equity awards for any such fractional shares shall be issued.
Any holder of Company Common Stock or Company Restricted Stock who would otherwise be entitled to receive, or entitled to a right
to receive, a fraction of a share of Parent Common Stock (after aggregating all fractional shares of Parent Common Stock issuable
to such holder) shall, in lieu of such fraction of a share and upon surrender of such holder’s Company Common Stock or Company
Restricted Stock be paid in cash the dollar amount (rounded to the nearest whole cent), without interest, determined by multiplying
such fraction by the Parent Stock Consideration Value.
Section 1.6 Dissenting
Shares. Notwithstanding anything in this Agreement to the contrary, Company Common Stock outstanding immediately prior to
the Effective Time and held by a holder who is entitled to demand and has properly demanded appraisal for such shares of Company
Common Stock in accordance with, and who complies in all respects with, Section 262 of the DGCL (such Company Common Stock, the
“Dissenting Shares”) shall not be converted into the right to receive the Merger Consideration, and shall instead
represent the right to receive payment of the fair value of such Dissenting Shares in accordance with and to the extent provided
by Section 262 of the DGCL. If any such holder fails to perfect or otherwise waives, withdraws or loses his right to appraisal
under Section 262 of the DGCL or other applicable Law, then the right of such holder to be paid the fair value of such Dissenting
Shares shall cease and such Dissenting Shares shall be deemed to have been converted, as of the Effective Time, into and shall
be exchangeable solely for the right to receive the Merger Consideration, without interest and subject to any withholding of Taxes
required by applicable Law in accordance with Section 1.8(g). The Company shall give Parent prompt notice of any demands
received by the Company for appraisal of shares of Company Common Stock, attempted withdrawals of such demands and any other instruments
served pursuant to the DGCL and received by the Company relating to rights to be paid the fair value of Dissenting Shares, and
Parent shall have the opportunity to direct all negotiations and Proceedings with respect to such demands. Prior to the Effective
Time, (unless required by Law) the Company shall not, except with the prior written consent of Parent (which consent shall not
be unreasonably withheld, conditioned or delayed), make any payment with respect to, or settle or compromise or offer to settle
or compromise, any such demands, or agree to do any of the foregoing. Any portion of the aggregate Merger Consideration made available
to the Exchange Agent (as defined in Section 1.8) to pay for Company Common Stock that have become Dissenting Shares shall
be returned to Parent upon demand.
Section 1.7 Closing
of the Company’s Transfer Books. At the Effective Time: (a) all shares of Company Common Stock outstanding immediately
prior to the Effective Time shall automatically be canceled and retired and shall cease to exist in exchange for the consideration
issued pursuant to Section 1.5, and all holders of Company Common Stock that were outstanding immediately prior to the
Effective Time shall cease to have any rights as Company Stockholders except as provided for in Section 1.5; and (b) the
stock transfer books of the Company shall be closed with respect to all shares of Company Common Stock outstanding immediately
prior to the Effective Time. No further transfer of any such shares of Company Common Stock shall be made on such stock transfer
books after the Effective Time. If, after the Effective Time, a valid certificate previously representing any shares of Company
Common Stock outstanding immediately prior to the Effective Time (a “Company Stock Certificate”) is presented
to the Exchange Agent (as defined in Section 1.8) or to the First Step Surviving Corporation, Final Surviving Company or
Parent, such Company Stock Certificate shall be canceled and shall be exchanged as provided in Section 1.8.
Section 1.8 Exchange
of Certificates.
(a) On or prior to
the Closing Date, Parent shall cause Computershare Trust Company, N.A. (“Computershare”) (or, if Computershare
is not serving in this role, Parent shall select a reputable bank or trust company reasonably acceptable to the Company) to act
as exchange agent in the Merger (the “Exchange Agent”). As promptly as practicable after the Effective Time
(and no later than one Business Day after the Effective Time), Parent shall make available or deposit with the Exchange Agent:
(i) shares of non-certificated Parent Common Stock represented by book-entry shares or certificates representing the shares of
Parent Common Stock issuable pursuant to Section 1.5; and (ii) cash sufficient to make all payments pursuant to Section
1.5. The shares of Parent Common Stock and cash amounts so deposited with the Exchange Agent, together with any dividends
or distributions received by the Exchange Agent with respect to such shares of Parent Common Stock, are referred to collectively
as the “Exchange Fund.”
(b) As promptly as
practicable after the Effective Time, the First Step Surviving Corporation, Final Surviving Company or Parent shall cause the
Exchange Agent to mail to each holder of record of a Company Stock Certificate or shares of non-certificated Company Common Stock
represented by book-entry (“Book-Entry Shares”), in each case, which shares of Company Common Stock were converted
into the right to receive the Merger Consideration at the Effective Time pursuant to this Agreement:
(i) a letter of transmittal,
which shall specify that delivery shall be effected, and risk of loss and title to the Certificates or Book-Entry Shares shall
pass, only upon delivery of the Company Stock Certificates or transfer of the Book-Entry Shares, as the case may be, to the Exchange
Agent, and shall otherwise be in such form and have such other provisions as Parent, the Company and the Exchange Agent shall
reasonably agree; and
(ii) instructions
for use in effecting the surrender of the Company Stock Certificates or transfer of Book-Entry Shares in exchange for payment
of the Merger Consideration.
(c) Upon the surrender
of Company Stock Certificates or transfer of Book-Entry Shares for cancellation to the Exchange Agent, and upon delivery of a
letter of transmittal, duly executed and in proper form in accordance with the instructions thereto, with respect to such Company
Stock Certificates or an agent’s message in the case of a book entry transfer of Book-Entry Shares, the holder of such Company
Stock Certificates or Book-Entry Shares shall be entitled to receive the Merger Consideration for each share of Company Common
Stock formerly represented by such Company Stock Certificates and for each Book-Entry Share and any cash in lieu of fractional
shares pursuant to Section 1.5(c) and any cash in respect to any dividend or distribution pursuant to Section 1.8(e).
Any Company Stock Certificates and Book-Entry Shares so surrendered shall forthwith be cancelled. If payment of the Merger Consideration
is to be made to a Person other than the Person in whose name any surrendered Company Stock Certificate is registered, it shall
be a condition precedent of payment that the Company Stock Certificate so surrendered shall be properly endorsed or shall be otherwise
in proper form for transfer, and the Person requesting such payment shall have paid any 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 Company Stock Certificate
so surrendered and shall have established to the satisfaction of the First Step Surviving Corporation or Final Surviving Company
that such Taxes either have been paid or are not required to be paid. 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. Until surrendered as contemplated
hereby, each Company Stock Certificate or Book-Entry Share shall be deemed at any time after the Effective Time to represent only
the right to receive the Merger Consideration as contemplated by this Agreement.
(d) If
any Company Stock Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person
claiming such Company Stock Certificate to be lost, stolen or destroyed and, if reasonably required by Parent, the posting by
such Person of a bond, in such reasonable amount as Parent may direct, as indemnity against any claim that may be made against
it with respect to such Company Stock Certificate, the Exchange Agent (or, if subsequent to the termination of the Exchange Fund
and subject to Section 1.8(h), Parent) shall deliver, in exchange for such lost, stolen or destroyed Company Stock Certificate,
the Merger Consideration as set forth in Section 1.5 and any cash in lieu of fractional shares pursuant to Section 1.5(c)
and any cash in respect of any dividend or distribution that the holder has the right to receive pursuant to Section 1.8(e).
(e) No dividends or
other distributions declared or made with respect to Parent Common Stock with a record date after the Effective Time shall be
paid or otherwise delivered to the holder of any unsurrendered Company Common Stock with respect to the shares of Parent Common
Stock that such holder has the right to receive in the Merger until such holder surrenders such Company Common Stock in accordance
with this Section 1.8. Subject to applicable Law (including applicable abandoned property, escheat or similar Laws), following
surrender of any such Company Common Stock, the Exchange Agent shall deliver to the record holders thereof, without interest,
(i) a certificate(s) representing whole shares of Parent Common Stock issued in exchange therefor along with payment in cash pursuant
to Section 1.5 and the amount of any such dividends or other distributions with a record date after the Effective Time
payable with respect to such whole shares of Parent Common Stock and (ii) at the appropriate payment date, the amount of dividends
or other distributions with a record date after the
Effective Time and a
payment date subsequent to such surrender payable with respect to such whole shares of Parent Common Stock.
(f) Any portion of
the Exchange Fund that remains undistributed to holders of Company Common Stock as of the one year anniversary of the Closing
Date shall be delivered to Parent upon demand, and any holders of Company Common Stock who have not theretofore surrendered their
shares of Company Common Stock in accordance with this Section 1.8 shall thereafter look only to Parent for satisfaction
of their claims for Parent Common Stock, cash and any dividends or distributions with respect to shares of Parent Common Stock.
(g) Each of the Exchange
Agent, Parent, the First Step Surviving Corporation and the Final Surviving Company and their designees shall be entitled to deduct
and withhold from any consideration payable or otherwise deliverable pursuant to this Agreement to any holder or former holder
of Company Common Stock, Company Restricted Stock, Company Options, Company RSUs and Company Performance RSUs such amounts as
may be required to be deducted or withheld from such consideration under the Code or any provision of state, local or foreign
Tax Law or under any other applicable Law. To the extent such amounts are so deducted or withheld and paid over to the appropriate
Governmental Authority, such amounts shall be treated for all purposes under this Agreement as having been paid to the Person
to whom such amounts would otherwise have been paid.
(h) Neither Parent
nor the Final Surviving Company shall be liable to any holder or former holder of Company Common Stock, Company Restricted Stock,
Company Options, Company RSUs and Company Performance RSUs or to any other Person with respect to any shares of Parent Common
Stock (or dividends or distributions with respect thereto), or for any cash amounts, properly delivered to any public official
as required by any applicable abandoned property Law, escheat Law or similar Law.
Section 1.9 Tax
Consequences. For federal income tax purposes, the Merger is intended to constitute a “reorganization” within
the meaning of Section 368 of the Code. The Parties to this Agreement adopt this Agreement as a “plan of reorganization”
within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the United States Treasury Regulations.
Section 1.10 Further
Action. If, at any time after the Effective Time, any further action is determined by Parent or the Final Surviving Company
to be necessary or desirable to carry out the purposes of this Agreement or to vest the Final Surviving Company with full right,
title and possession of and to all rights and property of Merger Subs and the Company, the officers, directors and board of managers
of the Final Surviving Company and Parent shall be fully authorized (in the name of Merger Subs, in the name of the Company and
otherwise) to take such action.
Article
2
Representations
and Warranties of the Company
Except as set forth
in (a) the Company SEC Documents filed prior to the Agreement Date (to the extent that it is reasonably apparent on its face that
any such disclosure should qualify or apply to a section or subsection of this Article 2, and other than disclosures in such Company
SEC Documents contained
under the heading “Risk Factors” or any disclosure of risks included in any “forward-looking statements”
disclaimer) or (b) the disclosure schedule delivered by the Company to Parent and Merger Subs prior to the execution of this Agreement
(the “Company Disclosure Schedule”) (with the disclosure in any section or subsection of the Company Disclosure
Schedule being deemed to qualify or apply to other sections and subsections of this Article 2 to the extent that it is
reasonably apparent on its face that such disclosure should qualify or apply to such other sections and subsections), the Company
hereby represents and warrants to Parent as follows:
Section 2.1 Corporate
Existence.
(a) The Company and
each of its Subsidiaries is a corporation or other legal Entity duly organized, validly existing and in good standing (to the
extent a concept of “good standing” is applicable in the case of any jurisdiction outside the United States) under
the Laws of the jurisdiction of its incorporation or organization. The Company and each of its Subsidiaries has all requisite
corporate or organizational, 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 be so qualified or in good standing, individually
or in the aggregate, would not reasonably be expected to have a Company Material Adverse Effect. The Company and each of its Subsidiaries
is duly qualified to do business and is in good standing (to the extent a concept of “good standing” is applicable
in the case of any jurisdiction outside the United States) 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) Each of the Company’s
Certificate of Incorporation, as amended (the “Company Certificate”) and the Company Bylaws, as amended (the
“Company Bylaws”), and the certificate of incorporation and bylaws, or equivalent organizational or governing
documents, of each Company Subsidiary, is in full force and effect, and complete and correct copies of each of the foregoing documents
have been made available to Parent prior to the Agreement Date. The Company is not in violation of the Company Certificate or
Company Bylaws, and the Company Subsidiaries are not in violation of their respective organizational or governing documents, except
where such violation would not reasonably be expected to have a Company Material Adverse Effect.
(c) Section 2.1(c)
of the Company Disclosure Schedule sets forth a true and complete list of each Company Subsidiary, together with the jurisdiction
of organization or formation of each Company Subsidiary. The Company owns all of the capital stock or other direct or indirect
ownership interests of its Subsidiaries free of all Liens (other than Permitted Liens).
Section 2.2 Capitalization.
(a) The authorized
share capital of the Company consists of 100,000,000 shares of Company Common Stock and 5,000,000 shares of preferred stock, par
value $0.001 per share (“Preferred Stock”). As of the close of business on October 23, 2015
(the “Capitalization
Date”), there were 31,535,019 shares of Company Common Stock issued and outstanding (including Company Restricted
Stock) and no shares of Preferred Stock issued or outstanding.
(b) As of the close of business on the Capitalization
Date, the Company has no shares of capital stock reserved for or otherwise subject to issuance, except for (i) 1,317,236 shares
of Company Common Stock reserved for issuance pursuant to the exercise of outstanding Company Options, (ii) 513,242 shares of Company
Common Stock reserved for issuance pursuant to the vesting of outstanding Company RSUs (excluding Company Performance RSUs) and
246,589 shares of Company Common Stock reserved for issuance pursuant to the vesting of outstanding Company Performance RSUs at
target level, and (iii) shares of Company Common Stock reserved for future awards under the Company Equity Plans.
(c) All issued and
outstanding shares of Company Common Stock and securities of Company Subsidiaries are duly authorized, validly issued, fully paid
and non-assessable, and are not subject to and were not issued in violation of any preemptive or similar right, purchase option,
call or right of first refusal or similar right. Section 2.2(c) of the Company Disclosure Schedule sets forth, as of the
close of business on the Capitalization Date, an accurate and complete list of each outstanding Company Option, Company RSU, Company
Performance RSU and award of Company Restricted Stock and (i) the date of grant, (ii) the portion which is vested of each Company
RSU, Company Performance RSU or award of Company Restricted Stock as of the close of business on the Capitalization Date, (iii)
the vesting schedule of such Company Option, Company RSU, Company Performance RSU or award of Company Restricted Stock, (iv) the
exercise or purchase price thereof, if applicable, and (v) the Company Equity Plan (and the name of any foreign sub-plan) under
which each Company Option, Company RSU, Company Performance RSU or Company Restricted Stock, as the case may be, was granted.
(d) Except as set
forth in Section 2.2(b) and as permitted by Section 4.1(b), there are no outstanding subscriptions, options, warrants,
calls, rights, profits interests, stock appreciation rights, redemption rights, repurchase rights, preemptive rights, phantom
stock, convertible securities or other similar rights, agreements, arrangements, undertakings or commitments of any kind to which
the Company or any of its Subsidiaries is a party or by which any of them is bound obligating the Company or any of its Subsidiaries
to (i) issue, transfer or sell any shares of capital stock or other equity interests of the Company or securities convertible
into or exchangeable for such shares or equity interests or (ii) redeem, repurchase or otherwise acquire any such shares of capital
stock or other equity interests. Since March 21, 2012, the Company has not declared or paid, and the Company Board has not authorized,
any dividend or distribution in respect of any shares of Company Common Stock. From the close of business on the Capitalization
Date to the Agreement Date, the Company has not issued any Shares except upon the exercise of Company Options or the settlement
of Company RSUs and Company Performance RSUs outstanding as of the close of business on the Capitalization Date.
(e) Each Company Option
was granted in compliance in all material respects with all applicable Laws and all of the terms and conditions of the Company
Equity Plan pursuant to which it was issued and has an exercise price that equals or exceeds the fair market value of a share
of Company Common Stock on the date of grant of such Company Option.
(f) Section 2.2(f)
of the Company Disclosure Schedule sets forth (i) each of the Company’s Subsidiaries and the ownership interest of the
Company in each such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and
(ii) the Company’s or its Subsidiaries’ capital stock, equity interest or other direct or indirect ownership interest
in any other Person. No Subsidiary of the Company owns any shares of Company Common Stock.
(g) Neither the Company
nor any of its Subsidiaries has outstanding bonds, debentures, notes or other obligations, the holders of which have the right
to vote (or which are convertible into or exercisable for securities having the right to vote) with the Company Stockholders on
any matter.
(h) There are no voting
agreements, voting trusts, stockholders agreements, proxies or other agreements or understandings to which the Company or any
of its Subsidiaries is a party with respect to the voting of the capital stock or other equity interest of, restricting the transfer
of, or providing for registration rights with respect to, the Company or any of its Subsidiaries.
Section 2.3 Corporate
Authority.
(a) The Company has
all necessary corporate power and authority to execute and deliver this Agreement and all other agreements and documents contemplated
hereby to which it is a party, and to perform its obligations hereunder and thereunder and to consummate the Transactions including
the Merger (subject to and assuming the receipt of the affirmative vote of the holders of a majority of the outstanding shares
of Company Common Stock in favor of the adoption of this Agreement at the Company Stockholders Meeting (the “Company Stockholder
Approval”)). The execution and delivery of this Agreement by the Company and the consummation by the Company of the
Transactions, including the Merger, have been duly and validly authorized by all necessary corporate action, and no other corporate
proceedings on the part of the Company and no stockholder votes are necessary to adopt or authorize this Agreement or to consummate
the Transactions other than, with respect to the Merger, the Company Stockholder Approval, and the filing of the First Certificate
of Merger with the Secretary of State of the State of Delaware pursuant to the DGCL and the filing of the Second Certificate of
Merger with the Secretary of State of the State of Delaware pursuant to the DGCL and the DLLCA. This Agreement has been validly
executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of Parent and Merger
Subs, constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its
terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other
similar Laws relating to or affecting creditors’ rights generally, and general equitable principles.
(b) As of the Agreement
Date and subject to Section 4.6, the Company Board has (i) (A) determined that the Merger is fair to, and in the best interests
of, the Company and the Company Stockholders, (B) approved the Merger and the other transactions contemplated hereby, (C) adopted,
approved and declared advisable this Agreement, and (D) made the Company Board Recommendation, and (ii) directed that this Agreement
be submitted to the Company Stockholders for their adoption.
(c) The Company Board
has taken all appropriate actions so that, assuming the accuracy of the representations and warranties set forth in Section
3.20, the restrictions on business combinations contained in Section 203 of the DGCL will not apply with respect to, or as
a result of, the execution of this Agreement, the Company Stockholder Voting Agreements or the consummation of the Transactions,
including the Merger, without any further action on the part of the Company Stockholders or the Company Board. No other “fair
price,” “moratorium,” “control share acquisition”, “business combination” or other anti-takeover
statute or Law (each, together with Section 203 of the DGCL, a “Takeover Law”) is applicable to the Company
or the Transactions. None of the Company or any of its Subsidiaries has adopted a stockholder rights agreement, rights plan, “poison
pill” or other similar agreement that is currently in effect.
Section 2.4 Governmental
Approvals and Consents; Non-Contravention.
(a) No Consent, order,
or license from, notice to or registration, declaration or filing with, any Governmental Authority is required on the part of
the Company or any of its Subsidiaries in connection with the execution, delivery or performance of this Agreement, the Company
Stockholder Voting Agreements, the Parent Stockholder Voting Agreements, or the consummation of the Transactions, except (i) pursuant
to Section 1.3, (ii) the filing with the SEC of a Joint Proxy Statement/Prospectus in definitive form relating to the Company
Stockholders Meeting and the Form S-4 Registration Statement in which the Joint Proxy Statement/Prospectus will be included as
a prospectus, and declaration of effectiveness of the Form S-4 Registration Statement, and the filing with the SEC of such other
reports required in connection with the Merger under, and such other compliance with, the Exchange Act and the Securities Act
and the rules and regulations thereunder, (iii) for required Consents under any applicable Antitrust Laws, (iv) any filings required
under the rules and regulations of NASDAQ and (v) such other Consents, the failure of which to obtain would not reasonably be
expected to have a Company Material Adverse Effect.
(b) The execution
and delivery of this Agreement by the Company, the performance by the Company of its obligations hereunder and the consummation
by the Company of the Transactions does not and will not (i) violate or conflict with any provision of the Company Certificate
or the Company Bylaws, (ii) result in any violation or breach of, or constitute any default (with or without notice or lapse of
time, or both) under, or result in the creation of any Lien under any Company Material Contract, or give rise to a right of termination,
cancellation or acceleration of any obligation or a loss of a benefit under, or require that any Consent be obtained with respect
to, any Company Material Contracts, or (iii) assuming compliance with the matters described in Section 2.4(a) and Section
4.8, violate, conflict with or result in any breach under any provision of any Law applicable to the Company, except, in the
cases of subclauses (ii) and (iii), where such violation, breach, conflict, default, right of termination or cancellation, acceleration,
loss of benefit, failure to obtain Consent would, individually or in the aggregate, not reasonably be expected to have a Company
Material Adverse Effect.
Section
2.5 Compliance with Laws; Governmental Authorizations.
(a)
The Company and each of its Subsidiaries is and, since July 31, 2013, has been in compliance with the Laws applicable to each
of the Company and its Subsidiaries, in each case except to the extent that the failure to comply therewith would not reasonably
be expected to have a Company Material Adverse Effect. The Company and each of its Subsidiaries is and, since July 31, 2013, has
been in material compliance with all Anti-Corruption Laws. Since July 31, 2013, neither the Company nor any of its Subsidiaries
has received any written notices of violation with respect to any Laws applicable to it, in each case other than as would not,
individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect.
(b)
Without limiting the generality of Section 2.5(a), to the Knowledge of the Company, the Company, its Subsidiaries and/or
their officers, directors, employees and agents are in compliance with and, since July 31, 2013, have complied in all material
respects with: (i) the provisions of the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”),
as if its foreign payments provisions were fully applicable to the Company, its Subsidiaries and such owners, officers, directors,
employees, and agents, and (ii) Anti-Corruption Laws of each jurisdiction in which the Company and its Subsidiaries operate or
have operated and in which any agent thereof is conducting or has conducted business involving the Company. Since July 31, 2013,
to the Knowledge of the Company, the Company, its Subsidiaries and/or their respective officers, directors, employees and agents
have not paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything
of value to any national, provincial, municipal or other Government Official or any political party or candidate for political
office for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain
business, or direct business to any person or to secure any other improper benefit or advantage in each case in violation in any
material respect of the FCPA and any laws described in clause (ii).
(c)
The Company and its Subsidiaries (i) have instituted policies and procedures designed to ensure compliance with the FCPA and other
Anti-Corruption Laws in each jurisdiction in which the Company and its Subsidiaries operate and (ii) have maintained and will
maintain such policies and procedures in force.
(d)
Neither the Company nor any of its Subsidiaries, nor, to the Knowledge of the Company, any director, manager or employee of the
Company or any of its Subsidiaries (in his or her capacity as a director, manager or employee of the Company or any of its Subsidiaries),
are, and since July 31, 2013, have been, subject to any material, individually or in the aggregate, actual, pending, or, to the
Knowledge of the Company, threatened civil, criminal, or administrative actions, suits, demands, claims, hearings, notices of
violation, investigations, proceedings, demand letters, settlements, or enforcement actions, or made any voluntary disclosures
to any Governmental Authority, involving the Company or any of its Subsidiaries relating to the FCPA, or any other anti-bribery,
anti-corruption or anti-money laundering laws, except as would not reasonably be likely to have, individually or in the aggregate,
a Company Material Adverse Effect.
(e) The Company
and each of its Subsidiaries have all Governmental Authorizations necessary to conduct their respective businesses as presently
conducted, except where the failure to have any such Governmental Authorizations would not, individually or in the aggregate,
reasonably be expected to have a Company Material Adverse Effect. Since July 31, 2013, the Company has not received any written
notice from any Governmental Authority regarding (i) any actual or possible violation of any Governmental Authorization, or
any failure to comply in any respect with any term or requirement of any Governmental Authorization or (ii) any actual or
possible revocation, withdrawal, suspension, cancellation, termination or modification of any Governmental Authorization,
in each case other than as would not, individually or in the aggregate, reasonably be expected to have a Company Material
Adverse Effect.
Section 2.6 SEC
Filings.
(a) Since August 1,
2013, the Company has timely filed or otherwise furnished (as applicable) all registration statements, prospectuses, forms, reports,
proxy statements, schedules, statements and other documents (including exhibits) required to be filed or furnished (as applicable)
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 (the “Sarbanes-Oxley Act”) (such documents and any other documents filed by
the Company with the SEC since August 1, 2013, as have been supplemented, modified or amended since the time of filing, collectively,
the “Company SEC Documents”). None of the Company Subsidiaries is currently or has, since becoming a Company
Subsidiary been, required to file any forms, reports or other documents with the SEC.
(b) As of their respective
effective dates (in the case of the Company SEC Documents that are registration statements filed pursuant to the requirements
of the Securities Act) and as of their respective SEC filing dates (in the case of all other Company SEC Documents), or in each
case, if amended prior to the Agreement Date, as of the date of the last such amendment, the Company SEC Documents complied in
all material respects with the applicable requirements of the Exchange Act or the Securities Act, as the case may be, the Sarbanes-Oxley
Act and the applicable rules and regulations of the SEC thereunder and did not contain any untrue statement of a material fact
or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading.
(c) To the Knowledge
of the Company, none of the Company SEC Documents is the subject of ongoing SEC review or outstanding SEC comment. There are no
internal investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to
the Knowledge of the Company, threatened, in each case regarding any accounting practices of the Company.
Section 2.7 NASDAQ
Compliance. The Company is in compliance in all material respects with the applicable listing and corporate governance rules
and regulations of NASDAQ.
Section 2.8 Financial
Statements; Liabilities; Internal Controls.
(a) Each of the consolidated
financial statements of the Company (including, in each case, any notes and schedules thereto) included in the Company SEC Documents
(collectively, the “Company Financial Statements”) have been prepared in accordance with GAAP applied on a
consistent basis during the periods involved (except as may be indicated in the notes thereto or, in the case of interim financial
statements, for normal and recurring year-end adjustments that are not material in amount or nature and as may be permitted by
the SEC on Form 10-Q or any successor or like form under the Exchange Act, including the absence of footnotes) and present fairly
in all material respects the consolidated financial position and the consolidated results of operations, cash flows and stockholders’
equity of the Company and the consolidated Company Subsidiaries as of the dates and for the periods referred to therein.
(b) There are no Liabilities
of the Company that would be required by GAAP to be reflected or reserved against on a consolidated audited balance sheet of the
Company or disclosed in the footnotes thereto, other than those that (i) are reflected or reserved against on the Company Financial
Statements, (ii) have been incurred in the ordinary course of business consistent with past practices, since the date of the most
recent balance sheet included in the Company Financial Statements, (iii) are permitted or contemplated by this Agreement (including
Liabilities disclosed in the Company Disclosure Schedule), (iv) have been discharged or paid off in full or (v) individually or
in the aggregate, do not, and would not reasonably be expected to result in, a Company Material Adverse Effect.
(c) 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) sufficient to provide reasonable assurances regarding the reliability of financial reporting. The Company (i) has
designed and maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to
ensure that all information required to be disclosed by the Company in the reports that it files or submits under the Exchange
Act are recorded, processed, summarized and reported within the time periods specified in the SEC’s rules and forms and
is accumulated and communicated to the Company’s management as appropriate to allow timely decisions regarding required
disclosure and (ii) has disclosed, based on its most recent evaluation of its disclosure controls and procedures and internal
control over financial reporting prior to the Agreement Date, to the Company’s auditors and the Audit Committee of the Company
Board (A) any significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting
that are reasonably likely to adversely affect in any material respect the Company’s ability to record, process, summarize
and report financial information and (B) any fraud, whether or not material, that involves management or other employees who have
a significant role in the Company’s internal control over financial reporting. Since August 1, 2013, none of the Company,
the Company’s auditors, the Company Board or the audit committee of the Company Board has received any oral or written notification
of any matter set forth in the preceding clause (A) or (B). The Company has made available to Parent (i) a summary
of any such disclosure made by management of the Company to its auditors and Audit Committee on or after August 1, 2013 and (ii)
any material communication on or after August 1, 2013 made by management of the Company or its auditors to the Audit Committee
as required by the listing standards of NASDAQ, the Audit Committee’s
charter or professional
standards of the Public Company Accounting Oversight Board. On and after August 1, 2013, no material complaints from any source
regarding accounting, internal accounting controls or auditing matters or compliance with Law, including from Company employees
regarding questionable accounting, auditing or legal compliance matters have, to the Knowledge of the Company, been received by
the Company.
Section 2.9 Absence
of Certain Changes or Events. Since July 31, 2015 and through the Agreement Date:
(a) no event or events
or development or developments have occurred that would reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
(b) except in connection
with the execution and delivery of this Agreement and the Transactions, the Company has carried on its businesses in all material
respects in the ordinary course.
Section 2.10 Employees;
Employee Benefits.
(a) Section 2.10(a)
of the Company Disclosure Schedule sets forth a complete list of all material Company Benefit Plans. With respect to each
such Company Benefit Plan listed in Section 2.10(a) of the Company Disclosure Schedule, the Company has made available
to Parent, or will make available to Parent within 20 Business Days following the Agreement Date, accurate and complete copies
of (i) each Company Benefit Plan (or, if such Company Benefit Plan is not written, a written summary of its material terms), (ii)
the three most recent annual reports (Form 5500 series) with any required schedules filed with the IRS with respect to such Company
Benefit Plan, (iii) the most recent actuarial report or other financial statement relating to such Company Benefit Plan, (iv)
the most recent determination or opinion or advisory letter, if any, issued by the IRS with respect to any Company Benefit Plan
and any pending request for such a determination letter, (v) with respect to each Company Benefit Plan, each trust agreement,
insurance or group annuity Contract, administration and similar agreements, and investment management or investment advisory agreements,
(vi) the most recent nondiscrimination tests performed under the Code (including 401(k) and 401(m) tests) for each Company Benefit
Plan, (vii) copies of material notices, letters or other correspondence from any Governmental Authority in the last seven years,
and (viii) any filings under any amnesty, voluntary compliance, correction or similar program in the last seven years.
(b) The Company and
its Subsidiaries are in compliance with all applicable Laws regarding employment practices, terms and conditions of employment,
equal opportunity and wages and hours, including without limitation Worker Adjustment and Retraining Notification Act of 1988,
as amended, ERISA, COBRA and the Fair Labor Standards Act of 1938, as amended, except for any such non-compliance as would not
reasonably be expected to have a Company Material Adverse Effect.
(c) There is not presently
pending or existing, and to the Knowledge of the Company, there is not threatened, any strike, slowdown, picketing, work stoppage
or disputes. Since July 31, 2010, there has not been any labor strike, walkout, work stoppage, slow-
down or lockout involving
the Company or any of its Subsidiaries. Except as described in Schedule 2.10(c) of the Company Disclosure Schedule, neither
the Company nor any of its Subsidiaries is party to or bound by any collective bargaining agreement, works council or labor Contract,
other than such agreements or Contracts that are mandated by applicable Law. Neither the Company nor any of its Subsidiaries is
the subject of any proceeding asserting that the Company or any of its Subsidiaries has committed an unfair labor practice or
is seeking to compel the Company to bargain with any labor union or labor organization. None of the employees of the Company or
any of its Subsidiaries is represented by a labor union except as set forth in Section 2.10(c) of the Company Disclosure
Schedule, and, to the Knowledge of the Company, there are no organizational efforts with respect to the formation of a collective
bargaining unit being made or threatened involving employees of the Company or any of its Subsidiaries. The Company is, and has
been since July 31, 2010, in compliance with all applicable Laws governing employment or labor, including all collective bargaining
agreements, contractual commitments and all such Laws relating to wages, hours, worker classification, contractors, immigration,
collective bargaining, discrimination, civil rights, safety and health and workers’ compensation except as would not reasonably
be likely to have, individually or in the aggregate, a Company Material Adverse Effect. The Company does not have any requirement
under Contract or Law to provide notice to, or to enter into any consultation procedure with, any labor union or other organization
in connection with the execution of this Agreement or the transactions contemplated by this Agreement. Neither the Company nor
any of its subsidiaries has been a party to any collective bargaining agreement which required payment into a union-sponsored
pension fund or any other union-sponsored retirement fund which has created potential unfunded withdrawal liability.
(d) None of the Company,
its Subsidiaries, or any of their ERISA Affiliates, nor any predecessor thereof, sponsors, maintains or contributes to, or since
July 31, 2008 has sponsored, maintained or contributed to, or has or had any liability with respect to (i) a multiemployer plan
within the meaning of Section 3(37) of ERISA, (ii) an employee benefit plan that is subject to Title IV of ERISA, Section 412
of the Code or Section 302 of ERISA, (iii) a multiple employer welfare arrangement within the meaning of Section 3(40) of ERISA,
(iv) a multiple employer plan within the meaning of Sections 4063, 4064 or 4066 of ERISA or Section 413 of the Code, or (v) any
employee benefit plan that provides retiree welfare benefits other than in compliance with COBRA and other than payment or reimbursement
of COBRA premiums which do not result in any discrimination or similar issues for the welfare plan under which COBRA is provided
for which the Company could be reasonably expected to have a Company Material Adverse Effect. None of the Company, the Company
Subsidiary or any of their ERISA Affiliates has incurred any unsatisfied Liability (including withdrawal Liability) under, and,
to the Knowledge of the Company, no circumstances exist that would result in any Liability to the Company, any Company Subsidiary
or any of their ERISA Affiliates under, Title IV of ERISA or Section 412 of the Code or Section 302 of ERISA or otherwise with
respect to any of the employee benefit plans described in the immediately preceding sentence.
(e) Except as described
in Schedule 2.10(e) of the Company Disclosure Schedule, the execution and delivery of this Agreement and the consummation
of the Transactions will not (i) entitle any current or former director, officer, employee, consultant or independent contractor
to severance pay under any Company Benefit Plan, (ii) result in any payment becoming due, accelerate the time of payment or vesting
of any payments or benefits,
or increase the amount
of compensation due to any current or former director, officer, employee, consultant or independent contractor under any Company
Benefit Plan, (iii) result in any forgiveness of Indebtedness, or trigger any funding obligation under any Company Benefit Plan
that is sponsored or maintained by the Company.
(f) With respect to
any current or former director, officer, employee, consultant or independent contractor, neither the Company, any Company Subsidiary
nor any ERISA Affiliate of any of them has any indemnity or gross-up obligation for any excise taxes or penalties or interest
imposed or accelerated under Section 280G, 409A or 4999 of the Code except as described in Schedule 2.10(f).
(g) No amount or benefit
that could be, or has been, received (whether in cash or property or the vesting of property or the cancellation of Indebtedness)
by any current or former director, officer, employee, consultant or independent contractor who is a “disqualified individual”
within the meaning of Section 280G of the Code could be characterized as an “excess parachute payment” (as defined
in Section 280G(b)(1) of the Code) as a result of the consummation of the Transactions (whether alone or in combination with any
other event such as termination of employment).
(h) Except where noncompliance
would not reasonably be expected to result in a Company Material Adverse Effect, (i) each Company Benefit Plan is, and has been
administered, in compliance with its terms and ERISA, the Code and other applicable Laws, (ii) each Company Benefit Plan that
is intended to be qualified under Section 401(a) of the Code is so qualified and, to the Knowledge of the Company, circumstances
do not exist that are likely to result in the loss of the qualification of such plan under Section 401(a) of the Code, (iii) neither
the Company nor any of its Subsidiaries nor, to the Knowledge of the Company, any other party has engaged in a transaction with
respect to any Company Benefit Plan that could subject the Company or any Subsidiary to a Tax or penalty imposed by either Section
4975 of the Code or Section 502(i) of ERISA or result in a breach of fiduciary duty under ERISA and (iv) neither the Company nor
any of its Subsidiaries has incurred or reasonably expects to incur a Tax or penalty imposed by Section 4980F of the Code or Section
502 of ERISA or any liability under Section 4071 of ERISA.
(i) Except where non-compliance
would not reasonably be expected to result in a Company Material Adverse Effect, all contributions required to be made under each
Company Benefit Plan have been timely made and all obligations in respect of each Company Benefit Plan have been properly accrued
and reflected in the most recent Company Financial Statements. With respect to each Company Benefit Plan that is a Defined Benefit
Plan, (i) all contributions required to be made under Section 430(j) of the Code have been timely made and (ii) there has been
no waiver, or application for waiver, of the minimum funding standards imposed by Section 412 of the Code, and the minimum funding
standard has been met as of the end of the most recently completed plan year. No Defined Benefit Plan is, or is expected to be,
in “at risk” status within the meaning of Section 430(i)(4)(A) of the Code. Except for situations that would not reasonably
be expected to have a Company Material Adverse Effect, no Company Benefit Plan that is a Defined Benefit Plan has any amount of
“unfunded benefit liabilities” within the meaning of Section 4001(a)(18) of ERISA, and there are no current circumstances
that would materially change the funded status of such plan. No Company Benefit Plan that is a
Defined Benefit Plan
has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed plan year.
It is not reasonably anticipated that required minimum contributions to any Company Benefit Plan under Section 412 of the Code
will be materially increased by application of Section 412 or 430 of the Code. Neither the Company nor any of its Subsidiaries
has provided, or is required to provide, security to any Company Benefit Plan that is a Defined Benefit Plan pursuant to Section
401(a)(29) or 436 of the Code. No reportable event has been required to be filed with respect to any Company Benefit Plan that
is a Defined Benefit Plan.
(j) There is no pending
or, to the Knowledge of the Company, threatened claims, charges, investigations or litigation relating to any Company Benefit
Plan other than benefit claims in the normal course consistent with the terms of the Company Plan.
(k) Except where non-compliance
would not reasonably be expected to result in a Company Material Adverse Effect, all Company Benefit Plans subject to the laws
of any jurisdiction outside of the United States comply with applicable local Law (including compliance with any applicable requirements
with respect to registration and good standing with regulatory authorities), and the Company and its Subsidiaries have no unfunded
liabilities with respect to any such Company Benefit Plans that are not set forth in the Company Financial Statements, and there
is no pending or, to the Knowledge of the Company, threatened material claims, charges or litigation relating to any such Company
Benefit Plans.
(l) Except where non-compliance
would not reasonably be expected to result in a Company Material Adverse Effect, (i) the Company and its Subsidiaries are in compliance
with applicable Laws that require amounts to be withheld, informed and/or paid with respect to earnings, salaries and other payments
to employees, including applicable withholding Taxes, health and social security contributions and pension contributions, (ii)
the Company and its Subsidiaries have no liability by reason of an individual who performs or performed services for the Company
or any of the Subsidiaries in any capacity being improperly excluded from participating in a Company Benefit Plan; and (iii) each
of the employees and independent contractors of the Company and its Subsidiaries has been properly classified by the Company and
its Subsidiaries as employees or contractors or “exempt” or “non-exempt” under applicable Law.
(m) Each Company Benefit
Plan that is a pension plan within the meaning of ERISA but not intended to be qualified under Section 401(a) of the Code is exempt
from Parts 2, 3 and 4 of Title I of ERISA as an unfunded plan that is maintained primarily for the purpose or providing deferred
compensation for a select group of management or highly compensated employees pursuant to Sections 201(2), 301(a)(3) and 401(a)(i)
of ERISA. No assets of the Company or any Subsidiary are allocated to or held by a “rabbi trust” or similar funding
vehicle.
(n) Except where noncompliance
would not reasonably be expected to result in a Company Material Adverse Effect, (i) each Company Benefit Plan that is a “nonqualified
deferred compensation plan” within the meaning of Section 409A(d)(i) of the Code complies with, has been maintained in writing,
and administered in compliance with the requirements of Section 409A of the Code and the regulations thereunder (subject to any
applicable exceptions),
and (ii) no amount under any Company Benefit Plan is or has been subject to the interest and additional tax set forth under Section
409A of the Code.
Section 2.11 Contracts.
(a) Section 2.11(a)
of the Company Disclosure Schedule identifies each of the Contracts to which Company or its Subsidiaries is a party as of
the Agreement Date and which meets the following criteria (each, a “Company Material Contract”):
(i) a Contract providing
that the Company or its Subsidiaries will not compete with any other Person or granting most favored customer pricing to any Person,
or any Contract providing for the grant of exclusive sales, distribution, marketing or other exclusive rights, rights of refusal,
rights of first negotiation or similar rights and/or terms to any Person;
(ii) a Contract pursuant
to which Company or its Subsidiaries is a lessor or lessee of any real property or any personal property involving payments in
excess of $500,000 per annum;
(iii) a Contract for
the sale by Company or its Subsidiaries of products (other than sales or purchase orders, rebate agreements, invoices, marketing
arrangements or agreements, standard vendor term agreements, or modifications to audit rights under such Contracts entered in
the ordinary course of business consistent with past practice) to the ten largest customers as determined by revenue for the 12-month
period ended July 31, 2015, which Contract is not terminable by Company or its applicable Subsidiary on 90 days’ notice
or less without premium or penalty;
(iv) a Contract for
the purchase by Company or its Subsidiaries of materials, supplies, equipment or services (other than sales or purchase orders,
rebate agreements, invoices, marketing arrangements or agreements, standard vendor term agreements, or modifications to audit
rights under such Contracts entered in the ordinary course of business consistent with past practice), from the ten largest suppliers
as determined by expenditures in the 12-month period ended July 31, 2015, which Contract is not terminable by Company or its applicable
Subsidiary on 90 days’ notice or less without premium or penalty;
(v) a Contract with
the five largest brokers and distributors as determined by revenue during the 12-month period ended July 31, 2015;
(vi) a Contract pursuant
to which Company or its Subsidiaries has licensed from a third party or is authorized by a third party to use any Intellectual
Property Rights material to the Company, other than “shrink wrap” and similar generally available commercial end-user
licenses to software that have an individual acquisition cost of $100,000 or less;
(vii) any Contract
relating to the creation, incurrence, assumption or guarantee of any indebtedness for borrowed money, other than any Contract
for intercompany Indebtedness between the Company or any of its wholly-owned Subsidiaries, and any of its wholly-owned Subsidiaries;
(viii) any Contract
pursuant to which the Company has (A) acquired a business or entity, or assets of a business or entity, whether by way of merger,
consolidation, purchase of stock or assets or (B) has any material ownership interest in any other Person (other than its Subsidiaries)
and, in each case, that contains material continuing rights or obligations of the Company;
(ix) any partnership,
joint venture or other similar equity investment agreements or that involve a sharing of profits with a third party;
(x) any Contract requiring
any capital commitment or capital expenditures (including any series of related expenditures) in excess of $750,000;
(xi) any settlement
agreement imposing material future limitations on the operation of Company and its Subsidiaries
(xii) any Contract
purporting to limit in any material respect either the type of business in which the Company or its Subsidiaries may engage or
the manner or locations in which any of them may so engage in any business or that would reasonably be expected to require the
disposition of any material assets or line of business of the Company or its Subsidiaries;
(xiii) any Contract
that is required to be filed by the Company as a “material contract” pursuant to Item 601(b)(10) of Regulation S-K
under the Securities Act;
(xiv) any Contract
that contains a put, call or similar right pursuant to which the Company or any of its Subsidiaries would be required to purchase
or sell, as applicable, any equity interests of any Person or assets at a purchase price which would reasonably be expected to
exceed, or the fair market value of the equity interests or assets of which would be reasonably likely to exceed, $500,000;
(xv) any Contract
that was entered into with Affiliates of the Company or any of its Subsidiaries (other than the Company and its Subsidiaries)
that is not a Company Benefit Plan and was entered into other than on arms’-length terms;
(xvi) any Contract
that is required to be disclosed pursuant to Item 404 of Regulation S-K of the Exchange Act; and
(xvii) any Contract
that either (A) contains volume requirements or commitments, exclusive or preferred purchasing arrangements or promotional requirements
and (B) has more than one year remaining in the term of the Contract or requires in excess of $500,000 in remaining obligations,
in either case which Contract is not terminable by Company or its applicable Subsidiary on 90 days’ notice or less without
premium or penalty.
(b) With such exceptions
that would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, subject, as
to enforceability, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating
to or affecting creditors’ rights generally, and general equitable principles, (i) each Company Material Contract is valid
and binding on the Company or the
applicable Company Subsidiary,
as applicable, and is in full force and effect, except to the extent it has previously expired in accordance with its terms, (ii)
the Company and each of its Subsidiaries have performed all obligations required to be performed by it to date under each such
Company Material Contract (iii) no event or condition exists that constitutes or, after notice or lapse of time or both, will
constitute, a breach or a default on the part of the Company or any of its Subsidiaries under any such Company Material Contract
or give any other party to any such Company Material Contract the right to terminate or cancel such Company Material Contract.
(c) Neither the Company
nor any of its Subsidiaries has Knowledge of, or has received notice of, any violation of any Company Material Contract by any
of the other parties thereto that would, individually or in the aggregate, reasonably be expected to have a Company Material Adverse
Effect.
Section 2.12 Litigation.
Neither the Company nor any of its Subsidiaries is subject to any order, judgment, stipulation, injunction, decree of, or agreement
with any Governmental Authority, which would reasonably be expected to prevent or materially interfere with or delay the consummation
of any of the Transactions or would reasonably be expected to have a Company Material Adverse Effect. No Proceeding is pending
or, to the Knowledge of the Company, threatened in writing against the Company or any of its Subsidiaries which would reasonably
be expected to have a Company Material Adverse Effect.
Section 2.13 Intellectual
Property Rights.
(a) Ownership.
Except as would not reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries, collectively,
own, license, or otherwise have the right to use the Intellectual Property Rights used in the operation of their respective businesses
as currently conducted (collectively, the “Company Intellectual Property Rights”) free and clear of all Liens,
other than Permitted Liens, and such ownership or right to use the Company Intellectual Property Rights will not be affected by
the execution, delivery and performance of this Agreement or the consummation of the Merger. Section 2.13(a) of the Company
Disclosure Schedule sets forth a true and complete list of all registered Intellectual Property (“Company Registered
Intellectual Property”) and unregistered Trademarks owned by the Company or its Subsidiaries, or used exclusively by
the Company or its Subsidiaries. All of the Company Registered Intellectual Property is subsisting in all material respects, and,
except as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect in the jurisdiction(s)
where such Registered IP is issued or registered is, to the Knowledge of the Company, valid and enforceable.
(b) No Infringement.
Except as would not reasonably be expected to have a Company Material Adverse Effect, the conduct of the Company’s business
does not infringe or misappropriate the Intellectual Property Rights of any third party.
(c) No Proceedings.
Except as would not reasonably be expected to have a Company Material Adverse Effect, no Proceedings before any Governmental Authority
or arbitrator have been filed against the Company or any of its Subsidiaries, and the Company and its Subsidiaries have not received
written notice since July 31, 2013: (i) challenging the scope,
ownership, validity
or enforceability of the Company Intellectual Property Rights, or (ii) alleging the conduct of the Company’s business infringes
or misappropriates the Intellectual Property Rights of any third party.
(d) No Infringement
of Company Intellectual Property Rights. To the Knowledge of the Company, no Person is infringing or misappropriating any
Company Intellectual Property Rights, except in each case as would not reasonably be expected to have a Company Material Adverse
Effect, and, since July 31, 2013, neither the Company nor its Subsidiaries has brought or threatened any action against any third
party based on any allegations of such infringement, or misappropriation.
(e) Except as would
not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and its Subsidiaries
take commercially reasonable measures to maintain, preserve and protect (i) their respective interests in the Intellectual Property
material to the respective businesses of the Company and its Subsidiaries, and (ii) the confidentiality of the trade secrets owned
or used by the Company and its Subsidiaries.
(f) Except as would
not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect: (A) the Information Technology
used in the Company’s and its Subsidiaries’ businesses operates and performs as required to permit the Company and
its Subsidiaries to conduct their respective businesses as currently conducted, and (B) such Information Technology has not materially
malfunctioned or failed within the past eighteen (18) months.
(g) Except as would
not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, (A) the Company and its
Subsidiaries have implemented backup, security and disaster recovery technology and procedures, and (B) the Company and its Subsidiaries
are in compliance with applicable Laws regarding the privacy and security of customer, employee and other personally identifiable
information and are compliant in all respects with their respective privacy policies.
Section 2.14 Tax
Matters.
(a) Except as would
not reasonably be expected to have a Company Material Adverse Effect: (i) the Company and its Subsidiaries have timely filed,
taking into account any extensions, all Tax Returns required to be filed by them (all such Tax Returns being true, accurate and
complete) and have paid all Taxes required to be paid by them other than Taxes that are not yet due or that are being contested
in good faith in appropriate Proceedings; (ii) there are no Liens for Taxes on any assets of the Company or its Subsidiaries (except
for statutory liens for Taxes not yet due and payable); (iii) each of the Company and its Subsidiaries has withheld and paid all
Taxes required to have been withheld and paid in connection with amounts paid or owing to any employee, independent contractor,
creditor, stockholder, or other third party, and all Tax Returns and information returns with respect thereto have been properly
completed and timely filed; (iv) no deficiency for any Tax has been asserted or assessed by a taxing authority against the Company
or any of its Subsidiaries which deficiency has not been paid or is not being contested in good faith in appropriate Proceedings;
(v) the accruals and
reserves for Taxes reflected
in the consolidated financial statements included in the Company SEC documents are adequate, in accordance with GAAP, for Taxes
of the Company and its Subsidiaries for periods ending on or prior to the date of such consolidated financial statements; (vi)
neither the Company nor any of its Subsidiaries (A) is a party to or is bound by any Tax sharing, allocation or indemnification
agreement or arrangement (other than such an agreement or arrangement exclusively between or among the Company and its Subsidiaries),
(B) has received or applied for a Tax ruling or entered into a “closing agreement” within the meaning of Section 7121
of the Code (or any similar provision of state, local or foreign Law), in each case, that would be binding upon the Company or
any of its Subsidiaries after the Closing Date, (C) is or has been a member of any affiliated, consolidated, combined, unitary
or similar group for purposes of filing Tax Returns or paying Taxes (other than a group the common parent of which is the Company
or has been one of its Subsidiaries), (D) has any liability for the Taxes of any Person (other than the Company or any of its
Subsidiaries) under Treasury Regulation Section 1.1502-6 (or any similar provision of state, local or foreign Law), as a transferee
or successor, or otherwise; (vii) neither the Company nor any of its Subsidiaries will be required to include any item of income
in, or exclude any item of deduction from, taxable income for any taxable period (or portion thereof) ending after the Closing
Date, as a result of any (V) change in method of accounting pursuant to Section 481(c) of the Code (or any similar provision of
state, local or foreign Law) prior to the Closing, (W) installment sale, intercompany transaction or open transaction disposition
made on or entered into prior to the Closing Date, (X) prepaid amount received on or prior to the Closing Date, (Y) “closing
agreement” within the meaning of Section 7121(a) of the Code (or any similar provision of state, local or foreign Law) or
(Z) election pursuant to Section 108(i) of the Code (or any similar provision of state, local or foreign Law).
(b) Within the past
five years, neither the Company nor any of its Subsidiaries has been a “distributing corporation” or a “controlled
corporation” in a distribution intended to qualify for tax-free treatment under Section 355 of the Code.
(c) The Company is
not aware of any fact or circumstance that would reasonably be expected to prevent the First Merger and the Second Merger, taken
together, from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
(d) Neither the Company
nor any of its Subsidiaries has been a party to a transaction that constitutes a “listed transaction” or “reportable
transaction” for purposes of Section 6011 of the Code and applicable U.S. Treasury Regulations thereunder (or a similar
provision of state Law).
Section 2.15 Environmental
Matters. Except as would not reasonably be expected to have a Company Material Adverse Effect: (a) the Company and each of
its Subsidiaries are and have been in compliance with all Environmental Laws, including the possession of, and the compliance
with, all Governmental Authorizations and Governmental Consents required under Environmental Laws, (b) there has not been any
Release of Hazardous Materials in violation of Environmental Laws or in a manner that would reasonably be expected to give rise
to a Liability under any Environmental Laws, and (c) neither the Company nor any of its Subsidiaries has received any Environmental
Claim, and to the Knowledge of the Company, there are no Environmental Claims threatened in writing against the Company.
Section 2.16 Real
Property; Personal Property.
(a) Section 2.16(a)
of the Company Disclosure Schedule sets forth a list of all real property owned or leased by the Company or its Subsidiaries.
The Company or its Subsidiaries, as applicable, have good and valid title or leasehold interests, as applicable, in all its material
real property described in Section 2.16(a) of the Company Disclosure Schedule, free and clear of any Liens other than Permitted
Liens, and all leases are in full force and effect and are enforceable in accordance with their respective terms, subject, as
to enforceability, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating
to or affecting creditors’ rights generally, and general equitable principles.
(b) Neither the Company
nor its Subsidiaries have received written notice within the last 12 months of any material default under any material lease or
sublease, and to the Knowledge of the Company, no default exists thereunder.
(c) The Company owns,
and has good and valid title to, all material personal property purported to be owned by it (free and clear of all Liens, expect
for Permitted Liens), including all material personal property reflected on the Company Financial Statements (except for personal
property sold or otherwise disposed of since the date of the Company Financial Statements and any fixtures). This Section 2.16(c)
does not address and will not be construed as a representation or warranty regarding Intellectual Property Rights (which are
solely addressed in Section 2.13).
Section 2.17 Quality
and Safety of Products. Since August 1, 2013, the Company has not received any written notice in connection with any product
produced, sold or distributed by or on behalf of the Company or any of its Subsidiaries of any claim or allegation against the
Company or any of its Subsidiaries, nor has the Company or any of its Subsidiaries been a party or subject to any Proceeding pending
against, or, to the Company’s Knowledge, any Proceeding threatened against, the Company or any of its Subsidiaries as a
result of manufacturing, storage, quality, packaging, marketing, advertising or labeling of any product produced, sold or distributed
by or on behalf of the Company or any of its Subsidiaries, except, in each case, as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. The manufacturing and storage practices, preparation, ingredients,
composition, and packaging, marketing, advertising and labeling for each of the products of the Company and its Subsidiaries are
in compliance with all applicable Governmental Authorizations and Laws, including applicable Governmental Authorizations and Laws
relating to food and beverage manufacturing, storage, preparation, packaging, marketing, advertising and labeling, including the
rules and regulations of the Food and Drug Administration, except, in each case, as would not reasonably be expected to have,
individually or in the aggregate, a Company Material Adverse Effect. Since August 1, 2013, (a) there have been no recalls of any
product of the Company or any of its Subsidiaries, whether ordered by a Governmental Authority or undertaken voluntarily by the
Company or any of its Subsidiaries and (b) none of the products of the Company or any of its Subsidiaries have been adulterated,
misbranded, mispackaged, mismarketed, misadvertised or mislabeled in violation of applicable Governmental Authorization or Law,
except, in each case, as would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse
Effect.
Section 2.18 Customers,
Suppliers and Distributors. With respect to the fiscal year ended July 31, 2015, Section 2.18 of the Company Disclosure
Schedule lists (a) the ten largest (by dollar volume) customers of the Company during such period (showing the dollar volume for
each), (b) the ten largest (by dollar volume) suppliers of the Company during such period (showing the dollar volume for each)
and (c) the five largest (by dollar volume) distributors of the Company during such period (showing the dollar volume for each).
Section 2.19 Company
Information. The information relating to the Company and its Subsidiaries that is provided by the Company or any of its Subsidiaries
for inclusion in the Joint Proxy Statement/Prospectus and the Form S-4 Registration Statement, will not (a) in the case of the
Form S-4 Registration Statement, at the time the Form S-4 Registration Statement is filed with the SEC, at any time it is amended
or supplemented or at the time it is declared effective under the Securities Act, and (b) in the case of the Joint Proxy Statement/Prospectus,
at the date it is first mailed to the Company Stockholders or at the time of the Company Stockholders Meeting (or at the date
it is first mailed to the Parent Stockholders or at the time of the Parent Stockholders Meeting), contain any untrue statement
of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein,
in light of the circumstances in which they are made, not misleading. The Form S-4 Registration Statement and the Joint Proxy
Statement/Prospectus (except for such portions thereof that relate only to Parent or any of its Subsidiaries) will comply as to
form in all material respects with the provisions of the Securities Act, the Exchange Act and the rules and regulations thereunder.
No representation or warranty is made by the Company with respect to the information supplied by Parent or Merger Subs for inclusion
by reference in the Joint Proxy Statement/Prospectus.
Section 2.20 Finders;
Brokers. Other than Credit Suisse Securities (USA) LLC (the “Company Financial Advisor”), the Company has
not employed any finder or broker in connection with the Transactions who would have a valid claim for a fee or commission in
connection with the negotiation, execution or delivery of this Agreement or the consummation of any of the Transactions.
Section 2.21 Opinion
of Company Financial Advisor. The Company Board has received the opinion of the Company Financial Advisor, dated the date
on which the Company Board approved this Agreement, to the effect that, as of such date and based on and subject to the assumptions, limitations,
qualifications and other matters set forth therein, the Merger Consideration to be received by holders of Company Common Stock
pursuant to this Agreement is fair, from a financial point of view, to such holders, a copy of which opinion will be made available
to Parent for informational purposes only on a non-reliance basis promptly following receipt thereof by the Company Board.
Section 2.22 Insurance
Policies. The Company has made available to Parent and/or Parent’s Representatives all material insurance policies and
fidelity bonds covering the assets, business, equipment, properties, operations, directors, officers and employees of the Company
and its Subsidiaries (collectively, the “Insurance Policies”). As of the Agreement Date and except as would
not reasonably be expected to have a Company Material Adverse Effect, each of the Insurance Policies or renewals thereof are in
full force and effect, the Company and its Subsidiaries maintain insurance coverage adequate and customary in the industry for
the operation of their respective businesses (taking into account the cost and availability of such
insurance), and the
Company and/or its Subsidiaries are in material compliance with the terms of such Insurance Policies, including the payment of
all premiums due with respect to all such policies. With respect to each of the legal proceedings set forth in the Company SEC
Documents, no such insurer has informed the Company or any of its Subsidiaries of any denial of coverage, except for such denials
that, individually or in the aggregate, have not had and would not reasonably be expected to have, a Company Material Adverse
Effect. The Company and its Subsidiaries have not received any written notice of cancellation of any of the insurance policies,
except for such cancellations that, individually or in the aggregate, have not had and would not reasonably be expected to have,
a Company Material Adverse Effect. Except as would not reasonably be expected to have a Company Material Adverse Effect, all appropriate
insurers under the insurance policies have been timely notified of all material pending litigation and other potentially insurable
material losses that the Company has Knowledge of, and all reasonably appropriate actions have been taken to timely file all claims
in respect of such insurable matters.
Section 2.23 Excluded
Subsidiary. Section 2.23 of the Company Disclosure Schedule lists all Contracts
entered into between the Company and the Excluded Subsidiary. Except pursuant to the Contracts listed in Section 2.23
of the Company Disclosure Schedule, neither the Company nor any Company Subsidiary has
any Liability related to or arising out of the Excluded Subsidiary or its operations. The Company has delivered or caused to be
delivered to Parent and Merger Sub true and complete copies of the certificate of incorporation and bylaws of the Excluded Subsidiary
and of any Contract governing the investment by the Company or any Company Subsidiary in the Excluded Subsidiary.
Section 2.24 No
Other Representations or Warranties. Except for the representations and warranties expressly set forth in this Article
2, none of the Company or its Subsidiaries or Affiliates, nor any other Person on behalf of any of them makes or has made
any express or implied representation or warranty with respect to, or on behalf of, the Company, its Subsidiaries or Affiliates
or their respective businesses or with respect to any other information provided or made available to Parent, Merger Subs or Parent
Representatives in connection with the Merger or the other Transactions, including the accuracy or completeness thereof, and each
of the Company, its Subsidiaries and Affiliates hereby disclaims any such representation or warranty whether by the Company, its
Subsidiaries or Affiliates or any other Person on behalf of any of them.
Article
3
Representations
and Warranties of Parent and Merger Subs
Except as set forth
in (a) the Parent SEC Documents filed prior to the Agreement Date (to the extent that it is reasonably apparent on its face that
any such disclosure should qualify or apply to a section or subsection of this Article 3, and other than disclosures in such Parent
SEC Documents contained under the heading “Risk Factors” or any disclosure of risks included in any “forward-looking
statements” disclaimer or (b) the disclosure schedule delivered by Parent to the Company prior to the execution of this
Agreement (the “Parent Disclosure Schedule”) (with the disclosure in any section or subsection of the Parent
Disclosure Schedule being deemed to qualify or apply to other sections and subsections of this Article 3 to the extent
that it is
reasonably apparent
on its face that such disclosure should qualify or apply to such other sections and subsections), Parent hereby represents and
warrants to Parent as follows:
Section 3.1 Corporate
Existence.
(a) Parent and each
of the Merger Subs is duly organized, validly existing and in good standing under the Laws of the jurisdiction of its incorporation
or organization. Parent and each of the Merger Subs has all requisite corporate or organizational, 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 be so qualified or in good standing, individually or in the aggregate, would not reasonably be expected to
have a Parent Material Adverse Effect. Parent and each of the Merger Subs is duly qualified to do business and is in good standing
(to the extent a concept of “good standing” is applicable in the case of any jurisdiction outside the United States)
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 Parent Material Adverse Effect.
(b) Each of Parent’s
Certificate of Incorporation, as amended and the Parent Bylaws, as amended, and the certificate of incorporation, certificate
of formation, bylaws, limited liability company agreement or equivalent organizational or governing documents, of each Merger
Sub, is in full force and effect, and complete and correct copies of each of the foregoing documents have been made available
to the Company or Company Representatives prior to the Agreement Date. Parent is not in violation of the Parent Certificate of
Incorporation, as amended, or Parent Bylaws, as amended, and the Merger Subs are not in violation of their respective organizational
or governing documents, except where such violation would not reasonably be expected to have a Parent Material Adverse Effect.
Section 3.2 Capitalization.
(a) The authorized
share capital of Parent consists of 110,000,000 shares of Parent Common Stock and 5,000,000 shares of preferred stock, par value
$1.00 per share (“Parent Preferred Stock”). As of the close of business on October 23, 2015 (the “Parent
Capitalization Date”), there were 70,838,593 shares of Parent Common Stock issued and outstanding (including Parent Restricted Stock) and no shares of Preferred
Stock issued and outstanding.
(b) As of the close
of business on the Parent Capitalization Date, Parent has no shares of capital stock reserved for or otherwise subject to issuance,
except for (i) 2,483,964 shares of Parent Common Stock reserved for issuance pursuant to the exercise of outstanding Parent Options,
and (ii) shares of Parent Common Stock reserved for future awards under the Parent Equity Plans.
(c) All issued and
outstanding shares of Parent Common Stock are duly authorized, validly issued, fully paid and non-assessable, and are not subject
to and were not issued in violation of any preemptive or similar right, purchase option, call or right of first refusal or similar
right.
(d) Except as set
forth in Section 3.2(b), there are no outstanding subscriptions, options, warrants, calls, rights, profits interests, stock
appreciation rights, redemption rights, repurchase rights, preemptive rights, phantom stock, convertible securities or other similar
rights, agreements, arrangements, undertakings or commitments of any kind to which Parent or any of its Subsidiaries is a party
or by which any of them is bound obligating Parent or any of its Subsidiaries to (i) issue, transfer or sell any shares of capital
stock or other equity interests of Parent or securities convertible into or exchangeable for such shares or equity interests or
(ii) redeem, repurchase or otherwise acquire any such shares of capital stock or other equity interests. From the close of business
on the Parent Capitalization Date to the Agreement Date, Parent has not issued any shares of Parent capital stock except upon
the exercise of Parent Options or the settlement of Parent RSUs outstanding as of the close of business on the Parent Capitalization
Date.
(e) Section 3.2(e)
of the Parent Disclosure Schedule sets forth (i) each of Parent’s Subsidiaries and the ownership interest of Parent
in each such Subsidiary, as well as the ownership interest of any other Person or Persons in each such Subsidiary and (ii) the
Parent’s or Subsidiary’s capital stock, equity interest or other direct or indirect ownership interest in any other
Person. No Subsidiary of Parent owns any shares of Parent Common Stock.
(f) Neither Parent
nor any of its Subsidiaries has outstanding bonds, debentures, notes or other obligations, the holders of which have the right
to vote (or which are convertible into or exercisable for securities having the right to vote) with the Parent Stockholders on
any matter.
(g) There are no voting
agreements, voting trusts, stockholders agreements, proxies or other agreements or understandings to which Parent or any of its
Subsidiaries is a party with respect to the voting of the capital stock or other equity interest of, restricting the transfer
of, or providing for registration rights with respect to, Parent or any of its Subsidiaries.
Section 3.3 Corporate
Authority.
(a) Parent and each
of the Merger Subs has all necessary corporate or limited liability company power and authority, as applicable to execute and
deliver this Agreement and all other agreements and documents contemplated hereby to which they are a party, and to perform their
obligations hereunder and thereunder and to consummate the Transactions including the Merger (subject to and assuming the receipt
of the Parent Stockholder Approval). The execution and delivery of this Agreement by Parent and the Merger Subs and the consummation
by Parent and the Merger Subs of the Transactions, including the Merger, have been duly and validly authorized by all necessary
corporate or limited liability company action, and no other corporate or limited liability company proceedings on the part of
Parent or the Merger Subs are necessary to adopt or authorize this Agreement or to consummate the Transactions, other than, with
respect to the Merger, the Parent Stockholder Approval, and the filing of the First Certificate of Merger with the Secretary of
State of the State of Delaware pursuant to the DGCL and the filing of the Second Certificate of Merger with the Secretary of State
of the State of Delaware pursuant to the DGCL and the DLLCA. This Agreement has been validly executed and delivered by Parent
and each Merger Sub and, assuming the due
authorization, execution
and delivery by the Company, constitutes a legal, valid and binding obligation of Parent and Merger Subs, enforceable against
Parent and Merger Subs in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally, and
general equitable principles.
(b) As of the Agreement
Date and subject to Section 4.7, the Parent Board has (i) (A) approved the issuance of Parent Common Stock in the Merger,
(B) approved the Merger and the other transactions contemplated hereby, (C) adopted, approved and declared advisable this Agreement,
and (D) made the Parent Board Recommendation, and (ii) directed that a proposal approving the issuance of Parent Common Stock
in the Merger be submitted to the Parent Stockholders for their adoption.
Section 3.4 Governmental
Approvals and Consents; Non-Contravention.
(a) No Consent, order,
or license from, notice to or registration, declaration or filing with, any Governmental Authority is required on the part of
Parent or any of its Subsidiaries in connection with the execution, delivery or performance of this Agreement, the Company Stockholder
Voting Agreements, the Parent Stockholder Voting Agreements, or the consummation of the Transactions, except (i) pursuant to Section
1.3, (ii) the filing with the SEC of the Form S-4 Registration Statement in which the Joint Proxy Statement/Prospectus will
be included as a prospectus, and declaration of effectiveness of the Form S-4 Registration Statement, and the filing with the
SEC of such other reports required in connection with the Merger under, and such other compliance with, the Exchange Act and the
Securities Act and the rules and regulations thereunder, (ii) for required Consents under any applicable Antitrust Laws, (iii)
to comply with state securities or “blue-sky” Laws, (iv) any filings required under the rules and regulations of NASDAQ
and (v) such other Consents, the failure of which to obtain would not reasonably be expected to have a Parent Material Adverse
Effect.
(b) The execution
and delivery of this Agreement by Parent and each of the Merger Subs, the performance by Parent and each Merger Sub of its respective
obligations hereunder and the consummation by Parent and each of the Merger Subs of the Transactions do not and will not (i) violate
or conflict with any provision of the respective certificate of incorporation or bylaws or similar organizational documents of
Parent or Merger Subs, (ii) result in any violation or breach of or constitute any default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or acceleration of any obligation or a loss of a benefit
under, or result in the creation of any Lien under any Contract to which Parent and/or any Merger Sub is subject or is a party,
or (iii) assuming compliance with the matters described in Section 3.4(a) and Section 4.8, violate, conflict with or result
in any breach under any provision of any Law applicable to Parent or any of its properties or assets, except, in the case of subclauses
(ii) and (iii), where such violation, breach, conflict, default, right of termination or cancellation, acceleration, loss of benefit,
failure to obtain Consent would not reasonably be expected to prevent or materially interfere with or delay the consummation of
any of the Transactions or would, individually or in the aggregate, not reasonably be expected to have a Parent Material Adverse
Effect.
Section 3.5 Compliance
with Laws; Governmental Authorizations.
(a) Parent and each
of its Subsidiaries is and, since December 31, 2013, has been in compliance with the Laws applicable to each of Parent and its
Subsidiaries, in each case except to the extent that the failure to comply therewith would not reasonably be expected to have
a Parent Material Adverse Effect. Parent and each of its Subsidiaries is and, since December 31, 2013, has been in material compliance
with all Anti-Corruption Laws. Since December 31, 2013, neither Parent nor any of its Subsidiaries has received any written notices
of violation with respect to any Laws applicable to it, in each case other than as would not, individually or in the aggregate,
reasonably be expected to have a Parent Material Adverse Effect.
(b) Without limiting
the generality of Section 3.5(a), to the Knowledge of Parent, Parent, its Subsidiaries and their officers, directors, employees
and agents are in compliance with and, since December 31, 2013, have complied in all material respects with: (i) the provisions
of the FCPA, as if its foreign payments provisions were fully applicable to Parent, its Subsidiaries and such owners, officers,
directors, employees, and agents, and (ii) Anti-Corruption Laws of each jurisdiction in which Parent and its Subsidiaries operate
or have operated and in which any agent thereof is conducting or has conducted business involving Parent. Since December 31, 2013,
to the Knowledge of Parent, Parent, its Subsidiaries and/or their respective officers, directors, employees and agents have not
paid, offered or promised to pay, or authorized or ratified the payment, directly or indirectly, of any monies or anything of
value to any national, provincial, municipal or other Government Official or any political party or candidate for political office
for the purpose of corruptly influencing any act or decision of such official or of the government to obtain or retain business,
or direct business to any person or to secure any other improper benefit or advantage in each case in violation in any material
respect of the FCPA and any laws described in clause (ii).
(c) Parent and each
of its Subsidiaries have all Governmental Authorizations necessary to conduct their respective businesses as presently conducted,
except where the failure to have any such Governmental Authorizations would not, individually or in the aggregate, reasonably
be expected to have a Parent Material Adverse Effect. Within the three-year period prior to the Agreement Date, Parent has not
received any written notice from any Governmental Authority regarding (i) any actual or possible violation of any Governmental
Authorization, or any failure to comply in any respect with any term or requirement of any Governmental Authorization or (ii)
any actual or possible revocation, withdrawal, suspension, cancellation, termination or modification of any Governmental Authorization,
in each case other than as would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect.
Section 3.6 SEC
Filings.
(a) Since December
30, 2012, Parent has timely filed or otherwise furnished (as applicable) all registration statements, prospectuses, forms, reports,
proxy statements, schedules, statements and other documents (including exhibits) required to be filed or furnished (as applicable)
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) (such documents
and any other documents
filed by Parent with the SEC since December 30, 2012, as have been supplemented, modified or amended since the time of filing,
collectively, the “Parent SEC Documents”). None of the Parent Subsidiaries is currently or has, since becoming
a Parent Subsidiary been, required to file any forms, reports or other documents with the SEC.
(b) As of their respective
effective dates (in the case of the Parent SEC Documents that are registration statements filed pursuant to the requirements of
the Securities Act) and as of their respective SEC filing dates (in the case of all other Parent SEC Documents), or in each case,
if amended prior to the Agreement Date, as of the date of the last such amendment, the Parent SEC Documents complied in all material
respects with the applicable requirements of the Exchange Act or the Securities Act, as the case may be, the Sarbanes-Oxley Act
and the applicable rules and regulations of the SEC thereunder and did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) To the Knowledge
of Parent, none of the Parent SEC Documents is the subject of ongoing SEC review or outstanding SEC comment. There are no internal
investigations, any SEC inquiries or investigations or other governmental inquiries or investigations pending or, to the Knowledge
of Parent, threatened, in each case regarding any accounting practices of Parent.
Section 3.7 NASDAQ
Compliance. Parent is in compliance in all material respects with the applicable listing and corporate governance rules and
regulations of NASDAQ.
Section 3.8 Financial
Information, Liabilities, Internal Controls.
(a) Each of the consolidated
financial statements of Parent (including, in each case, any notes and schedules thereto) included in the Parent SEC Documents
(collectively, the “Parent Financial Statements”) have been prepared in accordance with GAAP applied on a consistent
basis during the periods involved (except as may be indicated in the notes thereto or, in the case of interim financial statements,
for normal and recurring year-end adjustments that are not material in amount or nature and as may be permitted by the SEC on
Form 10-Q or any successor or like form under the Exchange Act, including the absence of footnotes) and present fairly in all
material respects the consolidated financial position and the consolidated results of operations, cash flows and stockholders’
equity of Parent and the consolidated Parent Subsidiaries as of the dates and for the periods referred to therein.
(b) There are no Liabilities
of Parent that would be required by GAAP to be reflected or reserved against on a consolidated audited balance sheet of Parent
or disclosed in the footnotes thereto, other than those that (i) are reflected or reserved against on the Parent Financial Statements,
(ii) have been incurred in the ordinary course of business consistent with past practices since the date of the most recent balance
sheet included in the Parent Financial Statements, (iii) are permitted or contemplated by this Agreement (including Liabilities
disclosed in the Parent Disclosure Schedule), (iv) have been discharged or paid off in full or (v) individually or in the aggregate,
do not, and would not reasonably be expected to result in, a Parent Material Adverse Effect.
(c) Parent 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) sufficient to provide reasonable assurances regarding the reliability of financial reporting. Parent (i) has designed and
maintains disclosure controls and procedures (as defined in Rules 13a-15(e) and 15d-15(e) of the Exchange Act) to ensure that
all information required to be disclosed by Parent in the reports that it files or submits under the Exchange Act are recorded,
processed, summarized and reported within the time periods specified in the SEC’s rules and forms and is accumulated and
communicated to Parent’s management as appropriate to allow timely decisions regarding required disclosure and (ii) has
disclosed, based on its most recent evaluation of its disclosure controls and procedures and internal control over financial reporting
prior to the Agreement Date, to Parent’s auditors and Parent Board (A) any significant deficiencies and material weaknesses
in the design or operation of internal control over financial reporting that are reasonably likely to adversely affect in any
material respect Parent’s ability to record, process, summarize and report financial information and (B) any fraud, whether
or not material, that involves management or other employees who have a significant role in Parent’s internal control over
financial reporting. Since December 30, 2012, none of Parent, Parent’s auditors, Parent Board or the audit committee of
Parent Board has received any oral or written notification of any matter set forth in the preceding clause (A) or (B).
Parent has made available to the Company (i) a summary of any such disclosure made by management of Parent to its auditors and
Audit Committee of the Parent Board on or after December 30, 2012 and (ii) any material communication on or after December 30,
2012 made by management of Parent or its auditors to the Audit Committee of the Parent Board as required by the listing standards
of NASDAQ, the Audit Committee’s charter or professional standards of the Public Company Accounting Oversight Board. On
and after December 30, 2012, no material complaints from any source regarding accounting, internal accounting controls or auditing
matters or compliance with Law, including from Parent employees regarding questionable accounting, auditing or legal compliance
matters have, to the Knowledge of Parent, been received by Parent.
Section 3.9 Absence
of Certain Changes or Events. Since January 3, 2015 and through the Agreement Date:
(a) no event or events
or development or developments have occurred that would reasonably be expected to have, individually or in the aggregate, a Parent
Material Adverse Effect.
(b) except in connection
with the execution and delivery of this Agreement and the Transactions, Parent has carried on its businesses in all material respects
in the ordinary course.
Section 3.10 Contracts.
(a) As of the date
hereof, neither Parent nor any of its Subsidiaries is a party to or bound by any Contract that would be required to be filed by
Parent as a material contract pursuant to Item 601(b)(10) of Regulation S-K of the Securities Act other than such Contracts that
have been filed or incorporated by reference in the Parent SEC Documents filed prior to the Agreement Date. Each Contract (i)
of the type described in this Section 3.10(a) to
which Parent or any
of its Subsidiaries is a party or (ii) filed as an exhibit or incorporated by reference to the Parent SEC Documents, is referred
to as a “Parent Material Contract,”
(b) With such exceptions
that would not, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse Effect, subject, as
to enforceability, to bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and other similar Laws relating
to or affecting creditors’ rights generally, and general equitable principles, (i) each Parent Material Contract is valid
and binding on Parent or the applicable Parent Subsidiary, as applicable, and is in full force and effect, except to the extent
it has previously expired in accordance with its terms, (ii) Parent and each of its Subsidiaries have performed all obligations
required to be performed by it to date under each such Parent Material Contract and (iii) no event or condition exists that constitutes
or, after notice or lapse of time or both, will constitute, a default on the part of Parent or any of its Subsidiaries under any
such Parent Material Contract or give any other party to any such Parent Material Contract the right to terminate or cancel such
Parent Material Contract.
(c) Neither Parent
nor any of its Subsidiaries has Knowledge of, or has received notice of, any violation of any Parent Material Contract by any
of the other parties thereto that would, individually or in the aggregate, reasonably be expected to have a Parent Material Adverse
Effect.
Section 3.11 Litigation.
Neither Parent nor any of its Affiliates is subject to any order, judgment, stipulation, injunction, decree of or agreement with
any Governmental Authority, which would reasonably be expected to have a Parent Material Adverse Effect. No Proceeding is pending
or, to the Knowledge of Parent, threatened in writing against Parent or any of its Affiliates which would reasonably be expected
to have a Parent Material Adverse Effect.
Section 3.12 Intellectual
Property.
(a) Ownership.
Except as would not reasonably be expected to have a Parent Material Adverse Effect, Parent and its Subsidiaries, collectively,
own, license, or otherwise have the right to use the Intellectual Property Rights used in the operation of their respective businesses
as currently conducted (collectively, the “Parent Intellectual Property Rights”) and such ownership or right
to use the Parent Intellectual Property Rights will not be affected by the execution, delivery and performance of this Agreement
or the consummation of the Merger.
(b) No Infringement.
Except as would not reasonably be expected to have a Parent Material Adverse Effect, to Parent’s Knowledge, the conduct
of the Parent business does not infringe or misappropriate the Intellectual Property Rights of any third party.
(c) No Proceedings.
Except as would not reasonably be expected to have a Parent Material Adverse Effect, no Proceedings before any Governmental Authority
or arbitrator have been filed against Parent or any of its Subsidiaries, and Parent and its Subsidiaries have not received written
notice since December 29, 2013: (i) challenging the scope, ownership, validity or enforceability of the Parent Intellectual Property
Rights, or (ii) alleging the conduct of Parent’s business infringes or misappropriates the Intellectual Property Rights
of any third party.
(d) No Infringement
of Parent Intellectual Property Rights. To the Knowledge of Parent, no Person is infringing or misappropriating any Parent
Intellectual Property Rights, except in each case as would not reasonably be expected to have a Parent Material Adverse Effect,
and neither Parent nor its Subsidiaries since December 29, 2013 has brought or threatened any action against any third party based
on any allegations of such infringement, or misappropriation.
Section 3.13 Tax
Matters.
(a) (a) Except as
would not reasonably be expected to have a Parent Material Adverse Effect: (i) Parent and its Subsidiaries have timely filed,
taking into account any extensions, all Tax Returns required to be filed by them (all such Tax Returns being accurate and complete)
and have paid all Taxes required to be paid by them other than Taxes that are not yet due or that are being contested in good
faith in appropriate Proceedings; (ii) there are no Liens for Taxes on any assets of Parent or its Subsidiaries (except for statutory
liens for Taxes not yet due and payable); (iii) no deficiency for any Tax has been asserted or assessed by a taxing authority
against Parent or any of its Subsidiaries which deficiency has not been paid or is not being contested in good faith in appropriate
Proceedings; (iv) Parent and its Subsidiaries have provided adequate reserves in their financial statements for any Taxes that
have not been paid; and (v) neither Parent nor any of its Subsidiaries is a party to or is bound by any Tax sharing, allocation
or indemnification agreement or arrangement (other than such an agreement or arrangement exclusively between or among Parent and
its Subsidiaries).
(b) Parent is not
aware of any fact or circumstance that would reasonably be expected to prevent the First Merger and the Second Merger, taken together,
from qualifying as a “reorganization” within the meaning of Section 368(a) of the Code.
Section 3.14 Environmental
Matters. Except as would not reasonably be expected to have a Parent Material Adverse Effect: (a) Parent and each of its Subsidiaries
are and have been in compliance with all Environmental Laws, including the possession of, and the compliance with, all Governmental
Authorizations and Governmental Consents required under Environmental Laws, (b) there has not been any Release of Hazardous Materials
in violation of Environmental Laws or in a manner that would reasonably be expected to give rise to a Liability under any Environmental
Laws, and (c) neither Parent nor any of its Subsidiaries has received any Environmental Claim, and to the Knowledge of Parent,
there are no Environmental Claims threatened in writing against the Parent.
Section 3.15 Financial
Capacity.
(a) Parent has delivered
to the Company a true, accurate and complete copy of the executed commitment letter, dated as of the Agreement Date, by and among
Parent and lenders party thereto (the “Lenders”), including all exhibits, schedules, annexes and amendments
thereto (the “Financing Commitments”) and the related fee letters (the “Fee Letters”) with
respect to fees and related arrangements with respect to the Financing (provided, however, that the provisions in the Financing
Commitments relating to fee amounts and pricing caps (none of which could adversely affect the amount or availability or conditionality
of the Financing), including the provisions relating to fee amounts and pricing caps set forth in any
market flex provisions,
may be redacted), pursuant to which, and subject to the terms and conditions of which, the Lenders have committed to lend the
amounts set forth therein to Parent for the purpose of funding the Transactions (such committed financing, together with, unless
the context otherwise requires, any debt securities issued in lieu thereof, the “Financing”).
(b) As of the Agreement
Date, (i) the Financing Commitments are in full force and effect (subject to the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally,
and general equitable principles), and have not been withdrawn, rescinded or terminated, or otherwise amended or modified in any
respect, and (ii) each of the Financing Commitments, in the form so delivered, constitutes a legal, valid and binding obligation
of Parent and, to the Knowledge of Parent, the other parties thereto, enforceable against it or them, as the case may be, in accordance
with its terms except as enforceability may be affected by bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium
and other similar Laws relating to or affecting creditors’ rights generally, and general equitable principles. Except for
the Fee Letters, the Financing Commitments are the only agreements relating to the Financing as of the Agreement Date. Other than
as expressly set forth in such Financing Commitments and the Fee Letters, there are no other agreements, side letters, or arrangements
relating to the Financing Commitments that could affect the amount, availability or conditionality of the Financing.
(c) As of the Agreement
Date, 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 under any term or condition of the Financing Commitments or, to the Knowledge of Parent, would (i) make any of
the assumptions or any of the statements set forth in the Financing Commitments inaccurate in any material respect, (ii) result
in any of the conditions in the Financing Commitments not being satisfied or (iii) otherwise result in the Financing not being
available on the Closing Date. As of the Agreement Date, no Lender party to any Financing Commitment has notified Parent of its
intention to terminate any of the Financing Commitments or not to provide the Financing.
(d) Parent
has fully paid (or caused to be paid) any and all commitment fees or other fees required by the Financing Commitments to be
paid on or before the Agreement Date. The aggregate proceeds from the Financing constitute all of the financing required for
the consummation of the Transactions and are sufficient in amount for Parent to pay the cash portion of the Merger
Consideration and all associated fees, costs and expenses in connection with the Transactions, including the Financing, and
to repay, retire and redeem in full all Indebtedness of the Company and its Subsidiaries set forth in items 1, 2 and 4 of
Section 2.11(a)(vii) of the Company Disclosure Schedule (the “Required Amount”). The Financing Commitments
contain all of the conditions precedent to the obligations of the parties thereunder to make the Financing available to
Parent on the terms and subject only to the conditions set forth therein. Parent acknowledges that its obligation to
consummate the Merger is not contingent on Parent’s ability to obtain any financing whether pursuant to the Financing
Commitments or otherwise, and Parent’s failure to consummate the Financing or alternative financing for the Required
Amount upon the satisfaction or waiver of the closing conditions set forth in Section 5.1 and Section 5.2 of
this Agreement shall constitute an Intentional Breach by Parent of this Agreement.
Section 3.16 Merger
Subs. The authorized capital stock of Merger Sub consists of 1,000 shares of common stock, 100 shares of which are validly
issued and outstanding. All of the issued and outstanding capital stock of Merger Sub is, and at the Effective Time will be, owned
directly or indirectly by Parent. Merger Subs have been formed solely for the purpose of effecting the Merger. Merger Subs do
not have any liabilities or other obligations other than pursuant to the Financing Commitments.
Section 3.17 Quality
and Safety of Products. Since December 30, 2012, Parent has not received any written notice in connection with any product
produced, sold or distributed by or on behalf of Parent or any of its Subsidiaries of any claim or allegation against Parent or
any of its Subsidiaries, nor has Parent or any of its Subsidiaries been a party or subject to any Proceeding pending against,
or, to Parent’s Knowledge, any Proceeding threatened against, Parent or any of its Subsidiaries as a result of manufacturing,
storage, quality, packaging, marketing or advertising or labeling of any product produced, sold or distributed by or on behalf
of Parent or any of its Subsidiaries, except, in each case, as would not reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect. The manufacturing and storage practices, preparation, ingredients, composition, and
packaging, marketing or advertising and labeling for each of the products of Parent and its Subsidiaries are in compliance with
all applicable Governmental Authorizations or Laws, including applicable Governmental Authorizations and Laws relating to food
and beverage manufacturing, storage, preparation, packaging, marketing, advertising and labeling, including the rules and regulations
of the Food and Drug Administration, except, in each case, as would not reasonably be expected to have, individually or in the
aggregate, a Parent Material Adverse Effect. Since December 29, 2013, (a) there have been no recalls of any product of Parent
or any of its Subsidiaries, whether ordered by a Governmental Authority or undertaken voluntarily by Parent or any of its Subsidiaries
and (b) none of the products of Parent or any of its Subsidiaries have been adulterated, misbranded, mispackaged, mismarketed,
misadvertised or mislabeled in violation of applicable Law, except, in each case, as would not reasonably be expected to have,
individually or in the aggregate, a Parent Material Adverse Effect.
Section 3.18 Customers,
Suppliers and Distributors. With respect to the fiscal year ended January 3, 2015, Section 3.18 of the Parent Disclosure
Schedule lists (a) the ten largest (by dollar volume) customers of Parent during such period (showing the dollar volume for each),
(b) the ten largest (by dollar volume) suppliers of Parent during such period (showing the dollar volume for each) and (c) the
five largest (by dollar volume) distributors of Parent during such period (showing the dollar volume for each).
Section 3.19 Parent
Information. The information relating to Parent and its Subsidiaries that is provided by Parent or any of its Subsidiaries
for inclusion in the Joint Proxy Statement/Prospectus and the Form S-4 Registration Statement, will not (a) in the case of the
Form S-4 Registration Statement, at the time the Form S-4 Registration Statement is filed with the SEC, at any time it is amended
or supplemented or at the time it is declared effective under the Securities Act, and (b) in the case of the Joint Proxy Statement/Prospectus,
at the date it is first mailed to Parent Stockholders or at the time of the Parent Stockholders Meeting (or at the date it is
first mailed to the Company Stockholders or at the time of the Company Stockholders Meeting), contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein,
in light of the
circumstances in which
they are made, not misleading. The Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus (except for such portions
thereof that relate only to the Company or any of its Subsidiaries) will comply as to form in all material respects with the provisions
of the Securities Act, the Exchange Act and the rules and regulations thereunder. No representation or warranty is made by Parent
or Merger Subs with respect to the information supplied by the Company for inclusion in the Form S-4 Registration Statement.
Section 3.20 Ownership
of Shares. Neither Parent nor Merger Subs is, nor at any time during the last three years has it been, an “interested
stockholder” of the Company as defined in Section 203 of the DGCL (other than as contemplated by this Agreement). To Parent’s
Knowledge, there are no other “fair price,” “moratorium,” “control share acquisition” or other
similar Takeover Statutes applicable to the Merger.
Section 3.21 Finders;
Brokers. Other than Morgan Stanley & CO. LLC and Deutsche Bank Securities Inc. (each a “Parent Financial Advisor”),
Parent has not employed any finder or broker in connection with the Merger or the other Transactions who would have a valid claim
for a fee or commission in connection with the negotiation, execution or delivery of this Agreement or the consummation of the
Transactions.
Section 3.22 Opinion
of Parent Financial Advisor. The Parent Board has received the opinion of Deutsche Bank Securities Inc., dated on or about
the Agreement Date, to the effect that, as of the date of such opinion and subject to the assumptions, limitations, qualifications
and conditions set forth therein, the Merger Consideration to be paid by Parent in connection with the Merger pursuant to this
Agreement was fair, from a financial point of view, to Parent, a signed copy of which opinion will be made available to the Company
for informational purposes only promptly following the Agreement Date.
Section 3.23 No
Other Representations or Warranties. Except for the representations and warranties expressly set forth in this Article 3,
none of Parent or its Subsidiaries or Affiliates, nor any other Person on behalf of any of them makes or has made any express
or implied representation or warranty with respect to, or on behalf of, Parent, its Subsidiaries or Affiliates or their respective
businesses or with respect to any other information provided or made available to the Company or Company Representatives in connection
with the Merger or the other Transactions, including the accuracy or completeness thereof, and each of Parent, its Subsidiaries
and Affiliates hereby disclaims any such representation or warranty whether by Parent, its Subsidiaries or Affiliates or any other
Person on behalf of any of them.
Article
4
Certain
Covenants
Section 4.1 Covenants
of the Company. Except as expressly provided or permitted herein as set forth in Section 4.1 of the Company Disclosure
Schedule or as consented to in writing by Parent (which consent shall not be unreasonably withheld, conditioned or delayed), during
the period commencing on the Agreement Date and ending at the Effective Time or such earlier date as this Agreement may be terminated
in accordance with its terms (the “Pre-Closing Period”), the Company shall, and shall cause each of its Subsidiaries
to, use commercially reasonable efforts to act and carry on its business in the ordinary course of business consistent
with past practice.
Without limiting the generality of the foregoing, except as expressly provided or permitted herein or as set forth in Section
4.1 of the Company Disclosure Schedule, during the Pre-Closing Period the Company shall not, and shall not permit any of its
Subsidiaries to, directly or indirectly, do any of the following without the prior written consent of Parent (which consent shall
not be unreasonably withheld, conditioned or delayed):
(a) (i) declare, set
aside or pay any dividends on, or make any other distributions (whether in cash, securities or other property) in respect of,
any of its capital stock (other than dividends and distributions by a direct or indirect wholly-owned Subsidiary of the Company
to its parent), (ii) split, combine or reclassify any of its capital stock or issue or authorize the issuance of any other securities
in respect of, in lieu of or in substitution for shares of its capital stock or any of its other securities; or (iii) purchase,
redeem or otherwise acquire any shares of its capital stock or any other of its securities or any rights, warrants or options
to acquire any such shares or other securities, except, in the case of this clause (iii), for the acquisition of shares of Company
Common Stock (A) from holders of Company Options in full or partial payment of the exercise price payable by such holder upon
exercise of Company Options to the extent required or permitted under the terms of such Company Options, (B) from holders of Company
RSUs or Company Performance RSUs in full or partial payment of any Taxes payable by such holder upon the settlement of Company
RSUs or Company Performance RSUs to the extent required or permitted under the terms of such Company RSUs or Company Performance
RSUs, or (C) from former employees, directors and consultants in accordance with agreements providing for the repurchase of Company
Restricted Stock at their original issuance price in connection with any termination of services to the Company or any of its
Subsidiaries:
(b) issue, deliver,
sell, pledge, dispose of, grant, or transfer or authorize the issuance, delivery, sale, pledge, disposition or grant of any capital
stock in the Company or any of its Subsidiaries of any class, or securities convertible into, or exchangeable or exercisable for,
any shares of such capital stock, or any options, warrants or other rights of any kind to acquire any shares of such capital stock
or such convertible or exchangeable securities or any other ownership interest (including any such interest represented by Contract
rights), of the Company or any of its Subsidiaries, other than (i) upon the exercise or settlement of Company Options, Company
Restricted Stock, Company RSUs, and Company Performance RSUs that are outstanding on the Agreement Date solely in accordance with
their terms as of the Agreement Date, (ii) for issuance by a wholly-owned Subsidiary of such Subsidiary’s capital stock
to another wholly-owned Subsidiary, or (iii) grants to new non-executive officer hires in the ordinary course of business consistent
with past practice;
(c) amend the Company
Certificate or Company Bylaws, or the certificate of incorporation, bylaws or other comparable charter, formation or organizational
documents of any Company Subsidiary;
(d) acquire by merging
or consolidating with, or by purchasing all or a substantial portion of the assets or any stock of, or by any other manner, any
business or any corporation, partnership, joint venture, limited liability company, association or other business organization
or division thereof, other than purchases of inventory, raw materials and other supplies in the ordinary course of business consistent
with past practice;
(e) sell, lease,
license, pledge, or otherwise dispose of or encumber any material properties or material assets of the Company or of any of
its Subsidiaries other than in the ordinary course of business consistent with past practice;
(f) incur, create,
assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities or assume, guarantee or endorse,
or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise), the obligations of any
Person (other than any wholly-owned Company Subsidiary in the ordinary course of business consistent with past practice) for borrowed
money or issue or sell options, warrants, calls or other rights to acquire any indebtedness for borrowed money of the Company
or any of its Subsidiaries, or take any action that would result in any amendment, modification or change of any term of any indebtedness
for borrowed money of the Company or any of its Subsidiaries, except (i) borrowings under the Company’s existing credit
facilities, (ii) loans between the Company and its wholly-owned Subsidiaries or between the Company’s wholly-owned Subsidiaries,
and (iii) Contracts entered into for purposes of hedging against changes in commodities prices or Contracts entered into for purposes
of hedging against changes in foreign currency exchange rates;
(g) make any capital
expenditures or other expenditures with respect to property, plant or equipment in excess of the amounts set forth in the Company’s
plan for capital expenditures previously made available to Parent;
(h) make any material
changes in accounting methods, principles or practices, except insofar as may have been required by a change in Law or GAAP;
(i) except to the
extent required by (A) applicable Law, (B) the terms of any Company Benefit Plan as in effect on the Agreement Date or (C) commitments
under Contracts of the Company or any of its Subsidiaries or policies with respect to severance or termination pay in existence
on the Agreement Date, (I) increase the compensation or benefits payable or to become payable to its directors, officers or employees,
except for (i) increases in salary or wages in the ordinary course of business consistent with past practice, (ii) payments of
bonuses for the Company’s 2015 fiscal year pursuant to the Company’s Annual Incentive Plan, or (iii) increases of
salary, wages and target incentive compensation in connection with the promotion of an existing employee in amounts consistent
with past practice for such positions, (II) grant any rights to severance or termination pay to, or enter into any employment
or severance agreement with, any director, officer or employee of the Company or any of its Subsidiaries (or any of their respective
dependents or beneficiaries), or establish, adopt, enter into or amend any bonus, profit sharing, thrift, compensation, stock
option, restricted stock, pension, retirement, deferred compensation, employment, termination, severance or other plan, agreement,
trust, fund, policy or arrangement for the benefit of any director, officer or employee or any of their respective dependents
or beneficiaries, or establish, adopt, enter into any plan, program or arrangement that would be a Company Benefit Plan or Company
Equity Plan if in existence on the date hereof, (III) except as contemplated in Section 1.5(a), take any action to amend
or waive any performance or vesting criteria or accelerate vesting, exercisability or funding under any Company Benefit Plan or
Company Equity Plan, (IV) terminate the employment of any executive officer other than for “cause” or (V) hire any
new employees, except for non-officer employees with a base salary of less than $150,000 per year;
(j) implement or
adopt any material change in financial accounting policies, practices or methods, other than as may be required by Law, GAAP or
regulatory guidelines;
(k) settle any
Proceedings if such settlement would require a payment by the Company in excess of $1,000,000 in any individual case or series
of related cases or $3,000,000 in the aggregate, other than (i) as required by their terms as in effect on the Agreement Date,
(ii) claims reserved against in the Company Financial Statements (for amounts not materially in excess of such reserves), (iii)
claims incurred since the date of the Company Financial Statements in the ordinary course of business consistent with past practice,
or (iv) fully insured claims, provided that, in the case of each of (i), (ii) or (iii), the payment, discharge, settlement
or satisfaction of such Proceeding does not include any material obligation (other than the payment of money) to be performed
by the Company or any of its Subsidiaries;
(l) other than
in the ordinary course of business, (a) amend or modify, in each case, in any material respect or terminate (excluding terminations
upon expiration of the term thereof in accordance with the terms thereof) any Company Material Contract or waive, release or assign
any material rights, claims or benefits under any Company Material Contract and (b) enter into any Contract that would have been
a Company Material Contract had it been entered into prior to the Agreement Date unless it is on terms substantially consistent
with, or on terms more favorable to the Company and/or its Subsidiaries than, either a Contract it is replacing or a form of such
Company Material Contract made available to Parent prior to the Agreement Date;
(m) extend, renew
or enter into any Contracts containing non-compete or exclusivity provisions that would materially restrict or limit, in any respect,
the operations of the Company, its Subsidiaries or, upon completion of the Merger, Parent or its Subsidiaries;
(n) enter into
or modify any collective bargaining agreement or other material labor-related agreement, unless required by applicable Law;
(o) (i) make, change
or revoke any material Tax election, (ii) change any Tax accounting period or any material method of Tax accounting, (iii) amend
any material Tax Return or file any claim for a material Tax refund, (iv) enter into any “closing agreement” within
the meaning of Section 7121(a) of the Code (or any similar provision of state, local or foreign Law) or other material agreement
with any Governmental Authority with respect to Taxes or request any ruling from any Governmental Authority with respect to Taxes
that would have binding effect on the Company or any of its Subsidiaries after the Closing, (v) settle or compromise any material
Tax claim or proceeding with respect to a material amount of Taxes or surrender any right to claim a material Tax refund, offset
or other reduction in Tax liability, (vi) enter into any Tax sharing, allocation or indemnification agreement or arrangement (other
than pursuant to a commercial agreement, not primarily related to Taxes, that is entered into the ordinary course of business),
or (vii) other than in the ordinary course of business, consent to any extension or waiver of any statute of limitations or period
for assessment or collections of any material Taxes;
(p) (A) (1) enter
into any new line of business other than any line of business that is reasonably ancillary to and a reasonably foreseeable extension
of any line of business as of the Agreement Date, or (2) start to conduct a line of business of the Company or any of its Subsidiaries
in any geographic area where it is not conducted as of the Agreement Date, other than starting to conduct a line of business of
the Company or any of its Subsidiaries in geographic areas that are reasonable extensions to geographic areas where such business
line is conducted as of the Agreement Date;
(q) other than
in the ordinary course of business consistent with past practice in an aggregate amount not to exceed $5,000,000, make any loans,
advances or capital contributions to, or investments in, any Person (other than loans, advances or capital contributions to the
Company or any direct or indirect wholly owned Subsidiary of the Company);
(r) authorize any
of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.
If the Company or any of its Subsidiaries
desires to take an action which would be prohibited pursuant to the foregoing clauses (a)-(r) without the written consent of Parent,
prior to taking such action, the Company may request such written consent (which consent shall not be unreasonably withheld, conditioned
or delayed) by sending an electronic mail or facsimile to the representative of Parent listed on Section 4.1 of the Company
Disclosure Schedule. Parent will either deliver to the Company written consent or a denial notification via electronic mail or
facsimile within two Business Days after Parent receives a written request by the Company pursuant to this Section 4.1.
If no such Consent or denial is received by the Company within three Business Days of its request in accordance with this Section
4.1, Parent will be deemed to have granted its consent to such action(s) requested by the Company. Nothing contained in this
Agreement shall give Parent or Merger Subs, directly or indirectly, the right to control, direct or interfere with the operations
of the Company prior to the Effective Time.
Section 4.2 Covenants
of Parent. Except as expressly provided or permitted herein or as set forth in Section 4.2 of the Parent Disclosure
Schedule, during the Pre-Closing Period Parent shall not, and shall not permit any of its Subsidiaries or Affiliates to, directly
or indirectly, do any of the following without the prior written consent the Company (which consent shall not be unreasonably
withheld, conditioned or delayed):
(a) (i) declare,
set aside or pay any dividends in excess of $0.16 per quarter on, or make any other distributions (whether in cash, securities
or other property) in respect of, any of its capital stock, except for dividends by any of the Parent Subsidiaries to Parent or
any of the other Parent Subsidiaries or any regularly scheduled quarterly dividends the timing and amount of which are in the
ordinary course of business consistent with past practice or (ii) split, combine or reclassify any of its capital stock or issue
or authorize the issuance of any other securities in respect of, in lieu of or in substitution for shares of its capital stock
or any of its other securities;
(b) amend its Certificate
of Incorporation, as amended, or Bylaws, as amended, or the certificate of incorporation, bylaws or other comparable charter,
formation or organizational documents of Parent Subsidiaries;
(c) other than
the Financing, incur, create, assume or otherwise become liable for indebtedness for borrowed money or issue any debt securities
or assume, guarantee or endorse, or otherwise as an accommodation become responsible for (whether directly, contingently or otherwise),
the obligations of any Person (other than any wholly-owned Parent Subsidiary in the ordinary course of business consistent with
past practice) for borrowed money or issue or sell options, warrants, calls or other rights to acquire any indebtedness for borrowed
money of Parent or any of its Subsidiaries, or take any action that would result in any amendment, modification or change of any
term of any indebtedness for borrowed money of Parent or any of its Subsidiaries, except (i) borrowings under Parent’s existing
credit facilities and loans between Parent and its wholly-owned Subsidiaries or between Parent’s wholly-owned Subsidiaries,
and (ii) Contracts entered into for purposes of hedging against changes in commodities prices or Contracts entered into for purposes
of hedging against changes in foreign currency exchange rates or interest rates;
(d) implement or
adopt any material change in financial accounting policies, practices or methods, other than as may be required by Law, GAAP or
regulatory guidelines;
(e) acquire or
agree to acquire by merging, or consolidating with, or by purchasing any interest in or assets or securities of, or by any other
manner, any business or any Person or any division or business thereof, if such acquisition or agreement (i) is for an amount
in excess of $100,000,000 or (ii) could reasonably be expected to present a material risk of delaying the Effective Time, making
it materially more difficult to obtain, or materially delay obtaining, any Consents or approvals of any Governmental Authority
necessary to consummate the Merger, or present a material risk of any Governmental Authority entering an Order prohibiting the
consummation of the Merger or materially increasing the risk of not being able to remove any such Order on appeal or otherwise;
(f) authorize any
of, or commit or agree, in writing or otherwise, to take any of, the foregoing actions.
If Parent or any of its Subsidiaries desires
to take an action which would be prohibited pursuant to the foregoing clauses (a)-(f) without the written consent of the Company,
prior to taking such action, Parent may request such written consent (which consent shall not be unreasonably withheld, conditioned
or delayed) by sending an electronic mail or facsimile to the representative of the Company listed on Section 4.2 of the
Parent Disclosure Schedule. The Company will either deliver to Parent written consent or a denial notification via electronic
mail or facsimile within two Business Days after the Company receives a written request by Parent pursuant to this Section
4.2. If no such consent or denial is received by Parent within three Business Days of its request in accordance with this
Section 4.2, the Company will be deemed to have granted its consent to such action(s) requested by Parent.
Section 4.3 Access
to Information; Confidentiality.
(a) From the Agreement
Date until the earlier of the termination of this Agreement and the Effective Time, the Company shall, and shall cause each of
its Subsidiaries to and shall cause its directors, officers, accountants, consultants, legal counsel, advisors, agents and other
representatives, (collectively, the “Company Representatives”) to (i) provide to Parent, Merger Subs and their
respective officers, directors, employees, accountants, consultants, legal counsel, advisors, agents and other representatives
(collectively, the “Parent Representatives”) reasonable access, at reasonable times, upon reasonable prior
notice to the Company, to the officers, agents, properties, offices and other facilities of the Company and its Subsidiaries,
and to the books and records thereof (including Tax Returns, but excluding any confidential information contained in personnel
files to the extent the disclosure of such information is prohibited by Privacy and Security Laws), and, with the Company’s
consent (such consent not to be unreasonably withheld, delayed or conditioned), to the employees of the Company and its Subsidiaries
and (ii) furnish as promptly as reasonably practicable such information concerning the business, properties, Contracts, assets,
Liabilities, Personnel and other aspects of the Company and its Subsidiaries as Parent or the Parent Representatives may reasonably
request, provided, however, that the foregoing shall neither require the Company to disclose any information, pursuant
to this Section 4.3(a) to the extent that (i) in the reasonable good faith judgment of the Company, any applicable Law
requires the Company or its Subsidiaries to restrict or prohibit access to any such properties or information, (ii) in the reasonable
good faith judgment of the Company, the information is subject to confidentiality obligations to a third party or (iii) disclosure
of any such information or document would result in the loss of attorney-client privilege; provided, further, that with
respect to clauses (i) through (iii) of this Section 4.3(a), the Company shall use its commercially reasonable efforts
to (1) obtain the required consent of any such third party to provide such inspection or disclosure, (2) develop an alternative
to providing such information so as to address such matters that is reasonably acceptable to Parent, and (3) in the case of clauses
(i) and (iii), utilize the procedures of a joint defense agreement or implement such other techniques if the Company determines
that doing so would reasonably permit the disclosure of such information without violating applicable Law or jeopardizing such
privilege. No investigation conducted pursuant to this Section 4.3(a) shall affect or be deemed to qualify, modify or limit
any representation or warranty made by the Company in this Agreement.
(b) Parent, Merger
Subs and the Company, and each of their respective Subsidiaries and Affiliates shall comply with, and shall cause the Parent Representatives
or Company Representatives, as applicable, to comply with, all of their obligations under the Confidentiality Agreement. With
respect to the information disclosed pursuant to this Section 4.3, Parent, Merger Subs and the Company shall comply with,
and shall cause the Parent Representatives and Company Representatives, as applicable, to comply with all of their respective
obligations under the Confidentiality Agreement.
Section 4.4 Registration
Statement; Joint Proxy Statement and Prospectus.
(a) As promptly
as practicable after the Agreement Date, Parent and the Company shall prepare and cause to be filed with the SEC the Joint Proxy
Statement/Prospectus and Parent shall prepare and cause to be filed with the SEC the Form S-4
Registration Statement,
in which the Joint Proxy Statement/Prospectus will be included as a prospectus. Each of Parent and the Company shall use reasonable
best efforts to cause the Form S-4 Registration Statement and the Joint Proxy Statement/Prospectus to comply with the applicable
rules and regulations promulgated by the SEC, to promptly notify the other, cooperate with respect to, and respond promptly to,
any comments of the SEC or its staff and to have the Form S-4 Registration Statement declared effective under the Securities Act
as promptly as practicable after it is filed with the SEC and to keep the Form S-4 Registration Statement effective through the
Closing in order to consummate the Transactions contemplated by this Agreement. As soon as reasonably practicable (but in any
event within five Business Days) following the date on which the Form S-4 Registration Statement is declared effective under the
Securities Act and the SEC staff advises that it has no further comments on the Joint Proxy Statement/Prospectus or that the Company
may commence mailing the Joint Proxy Statement/Prospectus, Parent shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus
to be mailed to Parent Stockholders, and the Company shall use reasonable best efforts to cause the Joint Proxy Statement/Prospectus
to be mailed to the Company Stockholders. Each of Parent and the Company shall promptly furnish all information concerning the
respective Party and their respective Subsidiaries and stockholders that may be required or reasonably requested in connection
with any action contemplated by this Section 4.4(a). If any event occurs, or if the Company or Parent becomes aware of
any information, that should be disclosed in an amendment or supplement to the Form S-4 Registration Statement or the Joint Proxy
Statement/Prospectus, then such Party shall promptly inform the other thereof and shall cooperate and provide the other (and its
counsel) with a reasonable opportunity to review and comment on any amendment or supplement to the Form S-4 Registration Statement
or the Joint Proxy Statement/Prospectus prior to filing such with the SEC and shall provide each other with a copy of all such
filings made with the SEC and shall cooperate, if appropriate, in mailing such amendment or supplement to the stockholders of
the Company or Parent.
(b) Prior to the
Effective Time, Parent shall use its reasonable best efforts to obtain all regulatory approvals needed to ensure that the Parent
Common Stock to be issued in the Merger will (to the extent required) be registered or qualified or exempt from registration or
qualification under the securities Law of every state of the United States in which any registered holder of Company Common Stock
has an address of record on the record date for determining the stockholders entitled to notice of and to vote at the Company
Stockholders Meeting.
Section 4.5 Stockholder
Meetings.
(a) Company
Stockholders Meeting.
(i) The Company
shall take all action necessary under all applicable Laws to duly call, give notice of and hold a meeting of the holders of Company
Common Stock to vote on a proposal to adopt this Agreement (the “Company Stockholders Meeting”); provided
that the Company may adjourn or postpone the Company Stockholders Meeting to a later date to the extent that the Company believes
in good faith that such adjournment or postponement is reasonably necessary (A) to ensure that any required supplement or amendment
to the Joint Proxy Statement/Prospectus is provided to the holders of
Company Common Stock
within a reasonable amount of time in advance of the Company Stockholders Meeting, (B) to allow reasonable additional time to
solicit additional proxies necessary to obtain the Company Stockholder Approval, (C) to ensure that there are sufficient shares
of Company Common Stock represented (either in person or by proxy) and voting to constitute a quorum necessary to conduct the
business of the Company Stockholders Meeting, (D) if the Parent Stockholders Meeting is postponed or adjourned pursuant to Section
4.5(b) or (E) otherwise to comply with applicable Law; provided that the date of the Company Stockholders Meeting is not postponed
or adjourned more than an aggregate of 15 calendar days in connection with any postponements or adjournments in reliance on the
preceding sentence. The Company and Parent shall use reasonable best efforts to hold the Company Stockholders Meeting and the
Parent Stockholders Meeting (defined below) on the same day (on a date mutually selected by the Company and Parent) and as promptly
as practicable after the Form S-4 Registration Statement is declared effective under the Securities Act. The Company shall use
its reasonable best efforts to provide that all proxies solicited in connection with the Company Stockholders Meeting are solicited
in compliance with all applicable Laws. In the event that during the five Business Days prior to the date that the Company Stockholders
Meeting is then scheduled to be held, the Company delivers a notice of an intent to make a Change of Company Board Recommendation
in accordance with Section 4.6(d) or Section 4.6(e) and/or a termination of this Agreement for a Superior Proposal
in accordance with Section 6.1(g), Parent may direct the Company to postpone the Company Stockholders Meeting for up to
five Business Days and the Company shall promptly, and in any event no later than the next Business Day, postpone the Company
Stockholders Meeting in accordance with Parent’s direction.
(ii) Except to
the extent the Company Board shall have made a Change of Company Board Recommendation as permitted by Section 4.6(d) or
Section 4.6(e), (A) the Joint Proxy Statement/Prospectus shall include the Company Board Recommendation and (B) the Company
Board Recommendation shall not be withdrawn or modified in a manner adverse to Parent, and no resolution by the Company Board
or any committee thereof to withdraw the Company Board Recommendation or modify the Company Board Recommendation in a manner adverse
to Parent shall be adopted; provided, however, that the Company shall not be prohibited from including in the Joint Proxy
Statement/Prospectus an accurate statement that an Acquisition Proposal has been made and such statement shall not be deemed a
Change in Recommendation in and of itself.
(iii) Notwithstanding
any Change of Company Board Recommendation, the Company shall nonetheless submit this Agreement to the Company Stockholders for
adoption at the Company Stockholders Meeting unless this Agreement is terminated in accordance with Article 6 prior to
the Company Stockholders Meeting. Without the prior written consent of Parent, the adoption of this Agreement shall be the only
matter (other than matters of procedure and matters required by Law to be voted on by the Company Stockholders in connection with
the approval of this Agreement and the transactions contemplated hereby) that the Company shall propose to be acted on by the
Company Stockholders at the Company Stockholders Meeting.
(b) Parent Stockholders
Meeting.
(i) Parent shall
take all action necessary to duly call, give notice of and hold a meeting of the holders of Parent Common Stock to vote on the
issuance of Parent Common Stock in the Merger (the “Parent Stockholders Meeting”); provided that Parent
may adjourn or postpone the Parent Stockholder Meeting to a later date to the extent that Parent believes in good faith that such
adjournment or postponement is reasonably necessary (A) to ensure that any required supplement or amendment to the Joint Proxy
Statement/Prospectus is provided to the holders of Parent Common Stock within a reasonable amount of time in advance of the Parent
Stockholders Meeting, (B) to allow reasonable additional time to solicit additional proxies necessary to obtain the Parent Stockholder
Approval, (C) to ensure that there are sufficient shares of Parent Common Stock represented (either in person or by proxy) and
voting to constitute a quorum necessary to conduct the business of the Parent Stockholders Meeting, (D) if the Company Stockholders
Meeting is postponed or adjourned pursuant to Section 4.5(a) or (E) otherwise to comply with applicable Law; provided that
the date of the Parent Stockholders Meeting is not postponed or adjourned more than an aggregate of 15 calendar days in connection
with any postponements or adjournments in reliance on the preceding sentence. The Company and Parent shall use reasonable best
efforts to hold the Company Stockholders Meeting and the Parent Stockholders Meeting on the same day (on a date mutually selected
by the Company and Parent) and as promptly as practicable after the Form S-4 Registration Statement is declared effective under
the Securities Act. Parent shall use its reasonable best efforts to provide that all proxies solicited in connection with the
Parent Stockholders Meeting are solicited in compliance with all applicable Laws. In the event that during the five Business Days
prior to the date that the Parent Stockholders Meeting is then scheduled to be held, Parent delivers a notice of an intent to
make a Change of Parent Board Recommendation in accordance with Section 4.7(d), the Company may direct Parent to postpone
the Parent Stockholders Meeting for up to five Business Days and Parent shall promptly, and in any event no later than the next
Business Day, postpone the Parent Stockholders Meeting in accordance with the Company’s direction.
(ii) Except to
the extent the Parent Board shall have made a Change of Parent Board Recommendation as permitted by Section 4.7(d), (A)
the Joint Proxy Statement/Prospectus shall include a statement to the effect that the Parent Board recommends that Parent Stockholders
vote to approve the issuance of Parent Common Stock in the Merger (the recommendation of Parent Board that Parent Stockholders
vote to approve the issuance of Parent Common Stock in the Merger being referred to as the “Parent Board Recommendation”)
and (B) the Parent Board Recommendation shall not be withdrawn or modified in a manner adverse to the Company, and no resolution
by the Parent Board or any committee thereof to withdraw the Parent Board Recommendation or modify the Parent Board Recommendation
in a manner adverse to the Company shall be adopted.
(iii) Notwithstanding
any Change of Parent Board Recommendation, Parent shall nonetheless submit the Parent Stockholder Approval for approval at the
Parent Stockholders Meeting unless this Agreement is terminated in accordance with Article 6 prior to the Parent Stockholders
Meeting. Without the prior written consent of Company, the Parent Stockholder Approval shall be the only matter (other than matters
of procedure and matters required by Law to be voted on by the Parent Stockholders in connection
with the Parent Stockholder
Approval and the transactions contemplated hereby) that Parent shall propose to be acted on by the Parent Stockholders at the
Parent Stockholders Meeting.
Section 4.6 No
Solicitation of Transactions by the Company.
(a) Subject to
Section 4.6(b), Section 4.6(d), Section 4.6(e) and Section 4.6(g) during the Pre-Closing Period, the
Company and its Subsidiaries shall not, and the Company shall not authorize or knowingly permit the Company Representatives to,
directly or indirectly:
(i) initiate, solicit
or knowingly encourage or knowingly induce the making, submission or announcement of any Acquisition Proposal or Acquisition Inquiry
or otherwise knowingly cooperate with or knowingly assist or participate in or knowingly facilitate the making, submission or
announcement of any Acquisition Proposal or Acquisition Inquiry,
(ii) participate
or engage in discussions or negotiations with any Person with respect to an Acquisition Proposal or Acquisition Inquiry (for avoidance
of doubt, it being understood that the foregoing shall not prohibit the Company or the Company Representatives from making such
Person aware of the restrictions of this Section 4.6 in response to the receipt of an Acquisition Proposal),
(iii) provide any
non-public information or data to any Person in connection with any Acquisition Proposal or Acquisition Inquiry,
(iv) approve, adopt,
endorse, or recommend to the Company Stockholders, or publicly propose to approve, adopt, endorse, declare advisable or recommend
to the Company Stockholders, any Acquisition Proposal,
(v) fail to recommend
against any Acquisition Proposal that is a tender offer or exchange offer within ten Business Days after the commencement thereof,
(vi) withdraw,
change, amend, modify or qualify or publicly propose to withdraw, change, amend, modify or qualify, in a manner adverse to Parent
or Merger Subs, the Company Board Recommendation (any action or failure to act taken by the Company Board set forth in the foregoing
clause (iv), clause (v) or this clause (vi), a “Change of Company Board Recommendation”),
(vii) enter into
any merger agreement, letter of intent, term sheet, agreement in principle, memorandum of understanding, share purchase agreement,
asset purchase agreement, share exchange agreement or other similar agreement constituting or relating to an Acquisition Proposal
(other than an Acceptable Confidentiality Agreement) or enter into any Contract or agreement requiring the Company to abandon,
terminate or fail to consummate the Transactions, or resolve or agree to take any of the foregoing actions, or
(viii) terminate,
waive, amend or modify any provision of, or grant permission under, any confidentiality agreement to which the Company or any
of its Subsidiaries is a party (provided, that the Company shall be deemed to have waived, and shall
not enforce, any standstill
agreement to the extent such provision would otherwise prohibit the counterparty thereto from making an unsolicited Acquisition
Proposal to the Company Board).
The Company shall immediately (A) cease
and cause to be terminated any solicitation, knowing encouragement, discussion or negotiation with any Persons, conducted prior
to the execution of this Agreement, by the Company, its Subsidiaries or any of the Company Representatives with respect to any
Acquisition Proposal or Acquisition Inquiry, (B) terminate access to any physical or electronic dataroom relating to the Company
for an Acquisition Proposal, and (C) request the prompt return or destruction of any confidential information provided to any
third party in connection with an Acquisition Proposal or Acquisition Inquiry.
(b) Notwithstanding
anything to the contrary contained in this Agreement, at any time following the Agreement Date and prior to the Company Stockholder
Approval, in response to a bona fide written Acquisition Proposal that the Company Board determines in good faith After
Consultation constitutes or could reasonably be expected to lead to or result in a Superior Proposal, the Company and the Company
Representatives may (i) engage or participate in discussions or negotiations with the Person (or such Person’s representatives)
that has made such Acquisition Proposal, and (ii) furnish to the Person (or such Person’s representatives) that has made
the Acquisition Proposal information relating to the Company and its Subsidiaries and/or afford access to the business, properties,
assets, books, records or the personnel of the Company and its Subsidiaries, in each case pursuant to an Acceptable Confidentiality
Agreement; provided that (A) the Acquisition Proposal was unsolicited and the Company did not receive such Acquisition
Proposal as a result of a breach of the terms of this Section 4.6, (B) prior to engaging or participating in any such discussions
or negotiations with or furnishing any information to, such Person, the Company gives Parent written notice of the identity of
such Person and its representatives and all of the material terms and conditions of such Acquisition Proposal and of the Company’s
intention to engage or participate in discussions or negotiations with, or furnish information to such Person and (C) contemporaneously
with or promptly (but in no event later than one Business Day) after furnishing any information to such Person, the Company shall
furnish such information to Parent (to the extent such information has not been previously furnished by the Company to Parent).
(c) In addition
to the obligations of the Company set forth in Section 4.6(b), the Company shall promptly, and in all cases within one
Business Day after the receipt by the Company, notify Parent orally and in writing of the receipt by the Company or the Company
Representatives of any Acquisition Proposal or Acquisition Inquiry, which notice shall include (x) the material terms and conditions
of such Acquisition Proposal or Acquisition Inquiry (for the purposes of clarity, this clause (x) shall be deemed satisfied in
the event a copy of any written Acquisition Proposal and any related agreements, reflecting conditions or other material terms
relating to any Acquisition Proposal is furnished to Parent) and (y) the identity of the Person or “group” (as defined
under Section 13(d) of the Exchange Act) making any such Acquisition Proposal or Acquisition Inquiry. Commencing upon the provision
of any notice referred to above until any such Acquisition Proposal or Acquisition Inquiry has been withdrawn, the Company (or
its outside counsel) shall (A) provide prompt notice to Parent no later than one Business Day after any material change in the
material terms of any such Acquisition Proposal or Acquisition Inquiry and (B) promptly (and in any event not later than one Business
Day) after receipt or delivery thereof, provide Parent (or its outside counsel) with copies of all material
documents (including
any written, or electronic material to the extent such material contains any financial terms, conditions or other material terms
relating to any Acquisition Proposal, including the financing thereof) exchanged between the Company or any of its Subsidiaries
or any of the Company Representatives, on the one hand, and the Person making an Acquisition Proposal or any of its Affiliates,
or their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or representatives,
on the other hand.
(d) Notwithstanding
anything in this Agreement to the contrary, if the Company receives an Acquisition Proposal, other than as a result of a material
breach of this Section 4.6, that the Company Board concludes in good faith, After Consultation, constitutes a Superior
Proposal, the Company Board may, at any time prior to the receipt of the Company Stockholder Approval, if it determines in good
faith, After Consultation, that the failure to take such actions contemplated by clauses (x) and/or (y) below would be inconsistent
with the Company Board’s fiduciary duties to the Company Stockholders under applicable Law, (x) effect a Change of Company
Board Recommendation with respect to such Superior Proposal and/or (y) terminate this Agreement pursuant to Section 6.1(g)
and simultaneously enter into a definitive agreement with respect to such Superior Proposal; provided, however, that
the Company shall not terminate this Agreement pursuant to the foregoing clause (y) unless in advance of or concurrently with
such termination the Company pays the Termination Fee; and provided further that the Company Board may not effect a Change
of Company Board Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause
(y) unless:
(i) the Company
shall have provided prior written notice to Parent, at least four Business Days in advance (the “Superior Proposal Notice
Period”), of its intention to effect such a Change of Company Board Recommendation (which notice itself shall not constitute
a Change of Company Board Recommendation) or terminate this Agreement to enter into an Alternative Company Acquisition Agreement
with respect to such Superior Proposal, which notice shall specify the material terms and conditions of such Superior Proposal
and the identity of the Person or group making such Superior Proposal, and shall have contemporaneously provided (in the case
of a proposed termination pursuant to clause (y) above) the execution draft of the relevant proposed definitive transaction agreements
with the Person making such Superior Proposal (the “Alternative Company Acquisition Agreement”)) and other
material documents with respect to such Superior Proposal (including any with respect to the financing thereof); and
(ii) prior to effecting
such Change of Company Board Recommendation or terminating this Agreement to enter into an Alternative Company Acquisition Agreement
with respect to such Superior Proposal, (A) if requested by Parent, the Company shall have, and shall have caused the Company
Representatives to, during the Superior Proposal Notice Period, negotiate with Parent in good faith to make such adjustments in
the terms and conditions of this Agreement so that such Acquisition Proposal ceases to constitute a Superior Proposal, and (B)
Parent shall not have, during the Superior Proposal Notice Period, made an irrevocable written offer during the Superior Proposal
Notice Period that would, upon the Company’s acceptance thereof, be binding on Parent and that, after consideration of such
offer by the Company Board in good faith and After Consultation, results in the Company Board determining that such Superior Proposal
no longer constitutes a Superior Proposal.
In the event of any amendment to the financial
terms or any other material revisions to the Superior Proposal, the Company shall be required to deliver a new written notice
to Parent pursuant to Section 4.6(d)(i) and to comply with the requirements of this Section 4.6(d) with respect
to such new written notice (including a new Superior Proposal Notice Period), except the Superior Proposal Notice Period shall
be at least two Business Days (rather than the four Business Days contemplated by Section 4.6(d)(i) above).
(e) Notwithstanding
anything to the contrary contained in this Agreement, and solely in response to an Intervening Event, the Company Board may effect
a Change of Company Board Recommendation prior to the receipt of the Company Stockholder Approval if the Company Board determines
in good faith, After Consultation, that the failure to do so would be inconsistent with the Company Board’s fiduciary duties
to the Company Stockholders under applicable Law; provided, however, that the Company Board may not effect such a Change
of Company Board Recommendation unless:
(i) the Company
shall have provided prior written notice to Parent, at least four Business Days in advance (the “Company Intervening
Event Notice Period”), of its intention to effect such a Change of Company Board Recommendation (which notice itself
shall not constitute a Change of Company Board Recommendation), which notice shall specify the details of such Intervening Event
and the basis upon which the Company Board intends to effect a Change of Company Board Recommendation; and
(ii) prior to effecting
such Change of Company Board Recommendation, (A) if requested by Parent, the Company shall have, and shall have caused the Company
Representatives to, during the Company Intervening Event Notice Period, negotiate with Parent in good faith to make such adjustments
in the terms and conditions of this Agreement so that a Change of Company Board Recommendation is no longer necessary, and (B)
that Parent shall not have, during the Company Intervening Event Notice Period, made an irrevocable written offer during the Company
Intervening Event Notice Period that would, upon the Company’s acceptance thereof, be binding on Parent and that, after
due consideration of such offer by the Company Board in good faith and After Consultation, results in the Company Board determining
that it would not be inconsistent with the Company Board’s fiduciary duties to the Company Stockholders under applicable
Law to not effect the Change of Company Board Recommendation.
In the event of any material changes to
the circumstances applicable to the Intervening Event, after the start of the Company Intervening Event Notice Period, the Company
shall be required to deliver a new written notice to Parent pursuant to Section 4.6(e)(i) and to comply with the requirements
of this Section 4.6(e) with respect to such new written notice (including a new Company Intervening Event Notice Period)
except the Company Intervening Event Notice Period shall be at least two Business Days (rather than the four Business Days contemplated
by Section 4.6(e)(i) above).
(f) The Company
shall keep confidential any proposals made by Parent to revise the terms of this Agreement, other than in the event of any amendment
to this Agreement and to the extent required by applicable Law to be disclosed in any Company SEC Documents.
(g) Nothing contained
in this Agreement shall prohibit the Company Board from taking and disclosing to the Company Stockholders a position contemplated
by Rule 14e-2(a), Rule 14d-9, Item 1012 of Regulation M-A or otherwise complying with the provisions of Rule 14d-9 or Item 1012
under the Exchange Act; provided, however, that none of the following shall be deemed to be a Change of Company Board Recommendation:
(i) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange
Act, (ii) an express rejection of any applicable Acquisition Proposal, and/or (iii) an express reaffirmation of the Company Board
Recommendation.
(h) No Change of
Company Board Recommendation shall change the approval of the Company Board for purposes of causing any Takeover Law to be applicable
to the Transactions.
Section 4.7 No
Solicitation of Transactions by Parent.
(a) Subject to
Section 4.7(b), Section 4.7(d) and Section 4.7(f) during the Pre-Closing Period, Parent and its Subsidiaries
shall not, and Parent shall not authorize or knowingly permit the Parent Representatives to, directly or indirectly:
(i) initiate, solicit
or knowingly encourage or knowingly induce the making, submission or announcement of any Parent Acquisition Proposal or Parent
Acquisition Inquiry or otherwise knowingly cooperate with or knowingly assist or participate in or knowingly facilitate the making,
submission or announcement of any Parent Acquisition Proposal or Parent Acquisition Inquiry,
(ii) participate
or engage in discussions or negotiations with any Person with respect to a Parent Acquisition Proposal or Parent Acquisition
Inquiry (for avoidance of doubt, it being understood that the foregoing shall not prohibit Parent or Parent Representatives from
making such Person aware of the restrictions of this Section 4.7 in response to the receipt of a Parent Acquisition Proposal
or Parent Acquisition Inquiry),
(iii) provide any
non-public information or data to any Person in connection with any Parent Acquisition Proposal or Parent Acquisition Inquiry;
(iv) approve, adopt,
endorse, or recommend to Parent Stockholders, or publicly propose to approve, adopt, endorse, declare advisable or recommend to
Parent Stockholders, any Parent Acquisition Proposal,
(v) fail to recommend
against any Parent Acquisition Proposal that is a tender offer or exchange offer within ten Business Days after the commencement
thereof,
(vi) withdraw,
change, amend, modify or qualify or publicly propose to withdraw, change, amend, modify or qualify, in a manner adverse to the
Company, the Parent Board Recommendation (any action or failure to act taken by the Parent Board set forth in the foregoing clause
(iv), clause (v) or this clause (vi), a “Change of Parent Board Recommendation”),
(vii) enter into
any merger agreement, letter of intent, term sheet, agreement in principle, memorandum of understanding, share purchase agreement,
asset purchase agreement, share exchange agreement or other similar agreement constituting or relating to a Parent Acquisition
Proposal (other than an Acceptable Confidentiality Agreement) or enter into any Contract or agreement requiring Parent to abandon,
terminate or fail to consummate the Transactions, or resolve or agree to take any of the foregoing actions, or
(viii) terminate,
waive, amend or modify any provision of, or grant permission under, any confidentiality agreement to which Parent or any of its
Subsidiaries is a party (provided, that Parent shall be deemed to have waived, and shall not enforce, any standstill agreement
to the extent such provision would otherwise prohibit the counterparty thereto from making an unsolicited Parent Acquisition Proposal
to the Parent Board).
Parent shall immediately
(A) cease and cause to be terminated any solicitation, knowing encouragement, discussion or negotiation with any Persons, conducted
prior to the execution of this Agreement, by Parent, its Subsidiaries or any of the Parent Representatives with respect to any
Parent Acquisition Proposal or Parent Acquisition Inquiry, (B) terminate access to any physical or electronic dataroom relating
to Parent for a Parent Acquisition Proposal, and (C) request the prompt return or destruction of any confidential information
provided to any third party in connection with a Parent Acquisition Proposal or Parent Acquisition Inquiry.
(b) Notwithstanding
anything to the contrary contained in this Agreement, at any time following the Agreement Date and prior to the Parent Stockholder
Approval, in response to a bona fide written Parent Acquisition Proposal that the Parent Board determines in good faith,
After Consultation, constitutes or could reasonably be expected to lead to or result in a Parent Superior Proposal, Parent and
the Parent Representatives may (i) engage or participate in discussions or negotiations with the Person (or such Person’s
representatives) that has made such Parent Acquisition Proposal, and (ii) furnish to the Person (or such Person’s representatives)
that has made the Parent Acquisition Proposal information relating to Parent and its Subsidiaries and/or afford access to the
business, properties, assets, books, records or the personnel of Parent and its Subsidiaries, in each case pursuant to an Acceptable
Confidentiality Agreement; provided that (A) the Parent Acquisition Proposal was unsolicited and Parent did not receive
such Parent Acquisition Proposal as a result of a breach of the terms of this Section 4.7, (B) prior to engaging or participating
in any such discussions or negotiations with or furnishing any information to, such Person, Parent gives the Company written notice
of the identity of such Person and its representatives and all of the material terms and conditions of such Parent Acquisition
Proposal and of Parent’s intention to engage or participate in discussions or negotiations with, or furnish information
to such Person and (C) contemporaneously with or promptly (but in no event later than one Business Day) after furnishing any information
to such Person, Parent shall furnish such information to the Company (to the extent such information has not been previously furnished
by Parent to the Company).
(c) In addition
to the obligations of Parent set forth in Section 4.7(b), Parent shall promptly, and in all cases within one Business Day
after the receipt by Parent, notify the Company orally and in writing of the receipt by Parent or the Parent Representatives of
any Parent Acquisition Proposal or Parent Acquisition Inquiry, which notice shall include (x) the material terms and conditions
of such Parent Acquisition Proposal or Parent Acquisition Inquiry
(for the purposes of
clarity, this clause (x) shall be deemed satisfied in the event a copy of any written Parent Acquisition Proposal and any related
agreements, reflecting conditions or other material terms relating to any Parent Acquisition Proposal is furnished to the Company)
and (y) the identity of the Person or “group” (as defined under Section 13(d) of the Exchange Act) making any such
Parent Acquisition Proposal or Parent Acquisition Inquiry. Commencing upon the provision of any notice referred to above until
any such Parent Acquisition Proposal or Parent Acquisition Inquiry has been withdrawn, Parent (or its outside counsel) shall (A)
provide prompt notice to the Company no later than one Business Day after any material change in the material terms of any such
Parent Acquisition Proposal or Parent Acquisition Inquiry and (B) promptly (and in any event not later than one Business Day)
after receipt or delivery thereof, provide the Company (or its outside counsel) with copies of all material documents (including
any written, or electronic material to the extent such material contains any financial terms, conditions or other material terms
relating to any Parent Acquisition Proposal, including the financing thereof) exchanged between Parent or any of its Subsidiaries
or any of the Parent Representatives, on the one hand, and the Person making a Parent Acquisition Proposal or any of its Affiliates,
or their respective officers, directors, employees, investment bankers, attorneys, accountants or other advisors or representatives,
on the other hand.
(d) Notwithstanding
anything in this Agreement to the contrary, if Parent receives a Parent Acquisition Proposal, other than as a result of a material
breach of this Section 4.7, that the Parent Board concludes in good faith, After Consultation, constitutes a Parent Superior
Proposal, the Parent Board may, at any time prior to the receipt of the Parent Stockholder Approval, if it determines in good
faith, After Consultation, that the failure to take such actions contemplated by clauses (x) and/or (y) below would be inconsistent
with the Parent Board’s fiduciary duties to the Parent Stockholders under applicable Law, (x) effect a Change of Parent
Board Recommendation with respect to such Parent Superior Proposal and/or (y) terminate this Agreement pursuant to Section
6.1(h) and simultaneously enter into a definitive agreement with respect to such Parent Superior Proposal; provided, however,
that Parent shall not terminate this Agreement pursuant to the foregoing clause (y) unless in advance of or concurrently with
such termination Parent pays the Parent Termination Fee; and provided further that the Parent Board may not effect a Change
of Parent Board Recommendation pursuant to the foregoing clause (x) or terminate this Agreement pursuant to the foregoing clause
(y) unless:
(i) Parent shall
have provided prior written notice to Parent, at least four Business Days in advance (the “Parent Superior Proposal Notice
Period”), of its intention to effect such a Change of Parent Board Recommendation (which notice itself shall not constitute
a Change of Parent Board Recommendation) or terminate this Agreement to enter into an Alternative Parent Acquisition Agreement
with respect to such Parent Superior Proposal, which notice shall specify the material terms and conditions of such Parent Superior
Proposal and the identity of the Person or group making such Parent Superior Proposal, and shall have contemporaneously provided
(in the case of a proposed termination pursuant to clause (y) above) the execution draft of the relevant proposed definitive transaction
agreements with the Person making such Parent Superior Proposal (the “Alternative Parent Acquisition Agreement”))
and other material documents with respect to such Parent Superior Proposal (including any with respect to the financing thereof);
and
(ii) prior to effecting
such Change of Parent Board Recommendation or terminating this Agreement to enter into an Alternative Parent Acquisition Agreement
with respect to such Parent Superior Proposal, (A) if requested by the Company, Parent shall have, and shall have caused the Parent
Representatives to, during the Parent Superior Proposal Notice Period, negotiate with the Company in good faith to make such adjustments
in the terms and conditions of this Agreement so that such Parent Acquisition Proposal ceases to constitute a Parent Superior
Proposal, and (B) the Company shall not have, during the Parent Superior Proposal Notice Period, made an irrevocable written offer
during the Parent Superior Proposal Notice Period that would, upon Parent’s acceptance thereof, be binding on Parent and
that, after consideration of such offer by the Parent Board in good faith and After Consultation, results in the Parent Board
determining that such Parent Superior Proposal no longer constitutes a Parent Superior Proposal.
In the event of any amendment to the financial
terms or any other material revisions to the Parent Superior Proposal, Parent shall be required to deliver a new written notice
to the Company pursuant to Section 4.7(d)(i) and to comply with the requirements of this Section 4.7 with respect
to such new written notice (including a new Parent Superior Proposal Notice Period), except the Parent Superior Proposal Notice
Period shall be at least two Business Days (rather than the four Business Days contemplated by Section 4.7(d)(i) above).
(e) Parent shall
keep confidential any proposals made by the Company to revise the terms of this Agreement, other than in the event of any amendment
to this Agreement and to the extent required by applicable Law to be disclosed in any Parent SEC Documents.
(f) Nothing contained
in this Agreement shall prohibit Parent Board from taking and disclosing to the Parent Stockholders a position contemplated by
Rule 14e-2(a), Rule 14d-9, Item 1012 of Regulation M-A or otherwise complying with the provisions of Rule 14d-9 or Item 1012 under
the Exchange Act; provided, however, that none of the following shall be deemed to be a Change of Parent Board Recommendation:
(i) a “stop, look and listen” or similar communication of the type contemplated by Rule 14d-9(f) under the Exchange
Act, (ii) an express rejection of any applicable Parent Acquisition Proposal, and/or (iii) an express reaffirmation of the Parent
Board Recommendation.
Section 4.8 Appropriate
Action; Consents; Filings.
(a) Prior to the
Effective Time, the Company shall use its reasonable best efforts to obtain any Consents of third parties with respect to any
Contracts of the Company or any of its Subsidiaries, as may be necessary or appropriate for the consummation of the Transactions
or required by the terms of any Contract of the Company or any of its Subsidiaries as a result of the execution, performance or
consummation of the Transactions; provided that, the Company and Parent shall determine reasonably and jointly whether
to seek any Consents from third parties under any Company Material Contract. In the event that such third party Consent described
in this Section 4.8(a) shall not be obtained, the Company and Parent shall determine reasonably and jointly whether to
take any further actions with respect to such Contracts; provided, further, however, that without its consent
(such consent to be given or withheld in its sole discretion), the Company shall not be required to pay any amount or change its
business
practices in order to
obtain any such Consent, waiver or approval. Prior to the Effective Time, the Company shall furnish Parent with (i) an executed
affidavit that satisfies the requirements of Treasury Regulation Section 1.1445-2(c)(3)(i) and (ii) a notice of such affidavit
to the Internal Revenue Service satisfying the requirements of Treasury Regulation Section 1.897-2(h).
(b) Subject to
Section 4.8(c) and the other terms and conditions of this Agreement, the Company and Parent agree, and Parent and the Company
agree to cause their respective Subsidiaries to use their respective reasonable best efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or advisable under applicable Law to consummate and make
effective the Transactions and to use their respective reasonable best efforts to cause the conditions to each Party’s obligation
to close the Transactions as set forth in Article 5 to be satisfied as promptly as practicable, including taking all actions
necessary (i) to obtain all Governmental Consents required for the satisfaction of the conditions set forth in Section 5.1(c),
(ii) to effect all such necessary registrations and filings with the Governmental Authorities in order to consummate and make
effective the Merger and the other Transactions, (iii) to comply with all requirements under applicable Law which may be imposed
on it with respect to this Agreement and the Merger and (iv) to defend any Proceedings, whether judicial or administrative, brought
under, pursuant to or relating to any regulatory Law challenging this Agreement or the consummation of the Transactions. The Parties
shall cooperate fully with each other to the extent necessary in connection with the foregoing.
(c) In connection
with the efforts referenced in Section 4.8(b) and without limiting the generality of the undertaking pursuant thereto,
Parent and Company shall promptly make all filings which may be required for the satisfaction of the condition set forth in Section
5.1(c) by each of them in connection with the consummation of the Transactions, which, in any event, shall be made within
ten Business Days following the Agreement Date with respect to the initial filings required under the HSR Act and all other applicable
Antitrust Laws. In addition, Parent and the Company agree, and shall cause each of their respective Subsidiaries, to cooperate
and to use their respective reasonable best efforts to obtain any Governmental Consents required for the satisfaction of the conditions
set forth in Section 5.1(c) as contemplated by Section 4.8(b) above as promptly as possible, including, within ten
Business Days of the Agreement Date, to make all other necessary filings, notifications or registrations to obtain all such Governmental
Consents and to respond as promptly as practicable to any requests for information from any Governmental Authority. In no event
shall Parent be required to (i) sell or otherwise dispose of, hold separate or agree to sell or dispose of, any assets, categories
of assets or businesses of Parent or its Subsidiaries, (ii) amend, modify or terminate existing relationships, contractual rights
or obligations or (iii) amend, modify or terminate existing licenses or other intellectual property agreements or enter into new
licenses or other intellectual property agreements to avoid, prevent or terminate any action by the U.S. Federal Trade Commission
or the U.S. Department of Justice or any other Governmental Authority which would restrain, enjoin or otherwise prevent consummation
of the Transactions. Each Party shall furnish to the other such necessary information and assistance as the other Party may reasonably
request in connection with the preparation of any necessary filings or submissions by it to any Governmental Authority. Neither
Party shall Consent to any voluntary extension of any statutory deadline or withdraw its notification and report form pursuant
to the HSR Act or any other filing made pursuant to any Antitrust Law or other regulatory Law unless the other Party has given
its prior written Consent to such extension or delay.
(d) Parent and
the Company will consult and cooperate with one another, and consider in good faith the views of one another, in connection with,
and provide to the other in advance (to the extent legally permissible), any analyses, presentations, memoranda, briefs, arguments,
opinions and proposals made or submitted by or on behalf of any Party hereto in connection with Proceedings under or relating
to any Antitrust Laws. Without limiting the generality of the foregoing, in connection with this Agreement and the Transactions,
the Parties agree to (i) give each other reasonable advance notice of all meetings with any Governmental Authority relating to
any Antitrust Laws, (ii) give each other an opportunity to participate in each of such meetings, (iii) give each other reasonable
advance notice of all substantive oral communications with any Governmental Authority relating to any Antitrust Laws, (iv) if
any Governmental Authority initiates a substantive oral communication regarding any Antitrust Laws, to promptly notify the other
Party of the substance of such communication, (v) provide each other with a reasonable advance opportunity to review and comment
upon all written communications (including any analyses, presentations, memoranda, briefs, arguments, opinions and proposals)
with a Governmental Authority regarding any Antitrust Laws, and (vi) provide each other with copies of all substantive communications
from any Governmental Authority relating to any Antitrust Laws. Any disclosures or provision of copies by one Party to the other
may be made on an outside counsel basis, if appropriate.
(e) Each of Parent
and the Company shall notify and keep the other advised as to (i) any material communication from any Governmental Authority regarding
any of the Transactions, and (ii) any litigation or administrative Proceeding pending and known to such Party, or to its Knowledge
threatened, which challenges, or would challenge, the Transactions. The Company and Parent shall not take any action inconsistent
with their obligations under this Agreement or, without prejudice to the Company’s or Parent’s rights under this Agreement,
which would materially hinder or delay the consummation of the Transaction
(f) Notwithstanding
anything to the contrary contained in this Agreement, Parent shall have the principal responsibility for devising and implementing
the strategy for obtaining any necessary Antitrust Laws or competition clearances and shall take the lead in all meetings and
communications with any Governmental Authority in connection with obtaining any necessary Antitrust Laws or competition clearances.
All expenses incurred in connection with the foregoing shall be shared equally by Parent and the Company. In furtherance and not
in limitation of this Section 4.8(f), subject to applicable Laws relating to the exchange of information, each of the Company
and Parent shall consult and cooperate with the other in connection with any analysis, appearance, presentation, memorandum, brief,
argument, opinion or proposal made or submitted in connection with any such request, inquiry, investigation, action or other legal
proceeding. In addition, except as may be prohibited by any Governmental Authority or by Law, in connection with any such request,
inquiry, investigation, action or other legal proceeding, each of the Company and Parent shall permit authorized Company Representatives
and Parent Representatives, respectively, (x) to participate at or in each substantive meeting, conference or telephone call with
a representative of a Governmental Authority relating to such request, inquiry, investigation, action or other legal proceeding
and (y) to have reasonable access to and be consulted in connection with any material document, opinion or proposal made or submitted
to any Governmental Authority in connection with any such request, inquiry, investigation, action or other legal proceeding. Parent
and the Company may, as each deems advisable and necessary, reasonably designate any competitively sensitive material
provided to the other
under this Section 4.8(f) as “outside counsel only.” 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 or directors of the recipient unless express permission is obtained in advance from the source of the materials or its
legal counsel. Notwithstanding anything to the contrary in this Section 4.8(f), materials provided to the other party or its outside
counsel may be redacted to remove references concerning the valuation, pricing and other competitively sensitive terms from an
antitrust perspective in the Contracts of Parent, the Company and their respective Subsidiaries.
(g) During the
period from the Agreement Date until the Closing Date, except as required by this Agreement, Parent and its Affiliates shall not,
without the prior written consent of the Company, engage in any action or enter into any transaction or permit any action to be
taken or transaction to be entered into by Parent or any of its Affiliates, that would reasonably be expected to have a Parent
Material Adverse Effect.
Section 4.9 Parent
Financing.
(a) Parent shall,
and shall cause its Affiliates to, use its reasonable best efforts to obtain the Financing on the terms, and subject only to the
conditions described in, the Financing Commitments (including any market flex provisions), including using its reasonable best
efforts to (i) promptly negotiate and execute definitive agreements on the terms and subject only to the conditions contained
in the Financing Commitments (including any market flex provisions) so that such agreements are in effect on the Closing Date,
(ii) promptly satisfy (or obtain a waiver to) or cause the satisfaction (or waiver) of all conditions in the Financing Commitments
and the definitive agreements for the Financing, (iii) as promptly as practicable, provide the Lenders with such information as
is required under the Financing Commitments to commence the Marketing Period (as such term is defined in the Financing Commitments),
(iv) consummate the Financing on the terms and subject only to the conditions (including accepting to the fullest extent any
amendments or modifications to the Financing pursuant to any market flex provisions) contained in the Financing Commitments (including,
subject to the satisfaction of the conditions set forth in Section 5.1 and Section 5.2 and in the Financing Commitments, by causing
the Lenders to provide such Financing) on or prior to the date on which the Closing is required to occur pursuant to Section
1.3, (v) in the event that the conditions set forth in Section 5.1 and Section 5.2 and in the Financing Commitments have been
satisfied or, upon funding would be satisfied, enforce its rights under the Financing Commitments (including by initiating and
prosecuting Proceedings in good faith against the Lenders) in the event of any breach thereof, (vi) comply with and maintain in
effect the Financing Commitments and (vii) in the event that the conditions set forth in Section 5.1, Section 5.2
and in the Financing Commitments have been satisfied or, upon funding would be satisfied, cause the Lenders to fund the full amount
of the Financing at or prior to the Closing (or if lesser, the Required Amount).
(b) Parent shall both (1) either (x) obtain the consent of the lenders under the Existing Parent Credit Agreement to the
Transaction and the Financing, (y) obtain a waiver by such lenders of any covenants or other provisions under the Existing Parent
Credit Agreement that would conflict with, be breached by, or otherwise impede, the Transaction and the Financing or (z) repay
all outstanding borrowings and pay other payment
obligations under the
Existing Parent Credit Agreement and (2) either (x) obtain the consent of the holders of the 5.72% Senior Notes due 2017 to the
Transaction and the Financing, (y) obtain a waiver by such holders of any covenants or other provisions under the indenture with
respect to the 5.72% Senior Notes due 2017 that would conflict with, be breached by, or otherwise impede, the Transaction and
the Financing, or (z) redeem Parent’s 5.72% Senior Notes due 2017, in the case of clauses (1) and (2), on or before the
Closing (and take all action required therefor, including providing any required notices of prepayment or redemption, as applicable,
by such times as are necessary in order to repay such borrowings and obligations, and redeem such notes, on or prior to the Closing).
(c) In the event
that, notwithstanding the use of reasonable best efforts by Parent to satisfy its obligations under Section 4.9(a), any
portion of the Financing becomes unavailable on the terms (including any market flex provisions) and subject only to the conditions
contemplated in the Financing Commitments (unless such portion is not reasonably required to consummate the Transactions), Parent
shall promptly notify the Company thereof and use its reasonable best efforts to obtain alternative financing for the Required
Amount as promptly as reasonably practicable following the occurrence of such event; provided that such alternative financing
shall not have any of the effects described in clause (d)(i) below. Parent shall deliver to the Company true and complete copies
of all agreements pursuant to which any such alternative source shall have committed to provide Parent with any portion of such
alternative financing substantially concurrently with the execution thereof
(d) Parent shall
have the right from time to time to amend, replace, supplement or otherwise modify, or waive any of its rights under, the Financing
Commitments or definitive agreement relating to the Financing (including any amendments or modifications to the Financing pursuant
to any market flex provisions); provided, however, that (i) without the prior written consent of the Company, no such amendment,
replacement, supplement, modification or waiver shall (A) reduce (or have the effect of reducing) the aggregate amount of the
Financing (including by increasing the amount of fees to be paid or original issue discount in respect of the Financing), (B)
add conditions precedent to the Financing or amend, replace, supplement or modify any existing conditions precedent to the Financing
that could reasonably be expected to (1) prevent, impede or delay the funding of the Financing (or satisfaction of the conditions
to the Financing), (2) impede or materially delay the availability of the Financing, (C) adversely impact the ability of Parent
to enforce or cause the enforcement of its rights under the Financing Commitments or the definitive agreements relating to the
Financing, or (D) impose additional obligations on the Company or its Affiliates prior to the Effective Time which are not already
in effect; and (ii) it is understood and agreed that Parent may amend the Financing Commitments to add lenders, arrangers, bookrunners,
agents, managers or similar entities that have not executed the Financing Commitments as of the Agreement Date.
(e) To the extent
Parent obtains alternative financing pursuant to Section 4.9(c), or amends, replaces, supplements, modifies or waives any
of the Financing pursuant to Section 4.9(d), references to the “Financing” and “Financing Commitments”
(and other like terms in this Agreement) shall be deemed to refer to such alternative financing, or the Financing as so amended,
replaced, supplemented, modified or waived.
(f) Parent shall
keep the Company reasonably informed on a reasonably timely basis and in reasonable detail of the status of Parent’s efforts
to arrange and obtain the Financing. Without limiting the foregoing, Parent shall notify the Company promptly (and in any event
within one Business Day) if at any time prior to the Closing Date: (i) the Financing Commitments expire or are terminated for
any reason, (ii) Parent obtains Knowledge of any material breach or default by any party to any Financing Commitment, (iii) Parent
receives any written communication from any Person providing a Financing Commitment with respect to any (A) actual, potential
or threatened breach, default, termination or repudiation by any party to the Financing Commitments with respect to a material
provision of the Financing Commitments or (B) a material dispute or disagreement between or among any parties to the Financing
Commitments with respect to the obligation to fund the Financings or the amount of the Financings to be funded at Closing, or
(iv) any other event or development occurs that Parent expects to have a material and adverse impact on the ability of Parent
to obtain all or any material portion of the Financings contemplated by the Financing Commitments on the terms, in the manner
or from the sources contemplated by the Financing Commitments or the definitive documents related to the Financing or Parent,
for any reason, otherwise no longer believes in good faith that it will be able to obtain all or any portion of the Financing
on the terms described in the Financing Commitments. As soon as reasonably practicable (but in any event within one Business Day
after the date the Company delivers to Parent a written request therefor), Parent shall provide any information reasonably requested
by the Company relating to any circumstance referred to in clause (i) through (iv) of the immediately preceding sentence.
(g) The Company
shall use its reasonable best efforts to provide, and shall cause its Subsidiaries to use reasonable best efforts to provide,
such customary cooperation in connection with the Financing as may be reasonably requested by Parent, in each case at Parent’s
sole expense, including (i) participating in a reasonable number of meetings, presentations, road shows, drafting sessions, due
diligence sessions and sessions with the Financing Sources and ratings agencies, and reasonably cooperating with the marketing
efforts of Parent and its Financing Sources, in each case in connection with the Financing, as may be reasonably requested by
Parent or the Financing Sources in connection with the Financing, provided, that such participation will be limited to the Company’s
executive officers and will be solely for the purpose of providing information in relation to the Company, (ii) furnishing Parent
and its Financing Sources with historical financial and other pertinent information regarding the Company (to the extent reasonably
available to the Company) as may be reasonably requested by Parent or the Financing Sources in connection with the Financing,
(iii) assisting with the preparation of materials for rating agency presentations, bank information memoranda, and similar documents
required in connection with the Financing, (iv) taking such steps reasonably requested by Parent as may be necessary to perfect
the liens and security interests to be granted as security for the Financing in the assets of the Company and its Subsidiaries;
provided, that any such liens or security interests do not attach or otherwise become effective prior to the occurrence
of the Closing, (v) executing and delivering, on behalf of the Company’s Subsidiaries, any necessary pledge and security
documents and otherwise reasonably facilitating the granting of a security interest (and perfection thereof) in collateral, guarantees,
mortgages and other definitive financing documents as may reasonably be requested by Parent; provided that any obligations
contained in all such agreements and documents shall be subject to the occurrence of the Closing and effective no earlier than
the Closing, (vi) providing customary authorization letters with respect to the information regarding the Company in the
bank information memoranda
and (vii) using reasonable best efforts to obtain surveys and title insurance at the expense of and as reasonably requested by
Parent on behalf of the Financing Sources; provided, however, that nothing herein shall require such cooperation
to the extent it would interfere unreasonably with the operations of the Company and its Subsidiaries; and provided, further,
that Company, its Subsidiaries and its and their respective officers, directors or employees shall not be required, prior to Closing, to (a) authorize,
execute, deliver or perform under any agreement with respect to the Financing that is not contingent upon the Closing or that
would be effective prior to the Closing, (b) disclose any confidential information to any party who is not subject to customary
confidentiality undertakings with respect thereto, (c) deliver any assets to the possession of any other party as collateral,
(d) pay any commitment or other fees in connection with the Financing, (e) execute or deliver any closing or officer’s certificate,
solvency certificate or similar certificate, (f) publicly disclose any projections or other forward-looking information, or (g)
require any corporate authorization or approval, or adoption of any resolutions, by the Board of Directors of the Company or any
of its Subsidiaries. The Company hereby consents to the use of the Company’s logos in connection with the Financing; provided,
that such logos are used solely in a manner that is not intended to, nor reasonably likely to, harm or disparage the Company or
its Subsidiaries. Parent shall be responsible for all fees and expenses related to the Financing and shall promptly reimburse
upon request of the Company, all out-of-pocket costs and expenses (including reasonable fees and expenses of counsel) incurred
by the Company or its Subsidiaries in connection with the cooperation of the Company as contemplated by this Section 4.9. Parent
shall, and hereby agrees to, indemnify and hold harmless the Company, its Subsidiaries and their respective representatives from
and against any and all Liabilities suffered or incurred by them in connection with the arrangement of the Financing, except to
the extent resulting from the gross negligence or willful misconduct of the Company or its Affiliates. All non-public or other
confidential information provided by the Company or its representatives pursuant to this Agreement will be kept confidential in
accordance with the Confidentiality Agreement, except that Parent will be permitted to disclose such information to any financing
sources or prospective financing sources and other financial institutions and investors that may become parties to the Financing
(and, in each case, to their respective counsel and auditors) so long as such Persons (i) agree to be bound by the Confidentiality
Agreement as if parties thereto; or (ii) are subject to other confidentiality undertakings reasonably satisfactory to the Company
and of which the Company is a beneficiary.
(h) Notwithstanding
anything to the contrary contained herein, Parent acknowledges and agrees that its obligations to consummate the Merger or any
of the other Transactions is not contingent upon Parent obtaining the Financing or any other third party financing, and Parent’s
failure to consummate the Financing or alternative financing upon the satisfaction or waiver of the conditions in Section 5.1
and Section 5.2 shall constitute an Intentional Breach by Parent of this Agreement.
Section 4.10 Certain
Notices. During the Pre-Closing Period, each of Parent and the Company shall promptly notify the other Party of the occurrence
of any event that would be likely to cause any condition to the obligations of Parent or the Company, respectively, to effect
the Merger not to be satisfied; provided, however, that the delivery of any notice pursuant to this Section 4.10
shall not cure any breach of any representation, warranty, covenant or agreement contained in this Agreement or otherwise
limit or affect the remedies available hereunder to the Party receiving such notice.
Section 4.11 Public
Announcements. Each of the Company, Parent and Merger Subs agrees that no public release or announcement concerning the Transactions
(including any communication required to be filed with the SEC) shall be issued by any Party or its Affiliates without the prior
written Consent of the Company and Parent (which Consent shall not be unreasonably withheld or delayed), except as such release
or announcement may be required by applicable Law or the rules or regulations of any Governmental Authority to which the relevant
Party is subject, in which case the Party required to make the release or announcement shall use its commercially reasonable efforts
to allow each other Party reasonable time to comment on such release or announcement in advance of such issuance. The Company,
Parent and Merger Subs agree that the initial press release announcing the execution and delivery of this Agreement shall be a
joint press release of, and shall not be issued prior to the approval of each of, the Company, on the one hand, and Parent, on
the other hand. Notwithstanding the foregoing provisions of this Section 4.11, (i) Parent, the Parent Representatives,
the Company and the Company Representatives and Parent’s and the Company’s respective Subsidiaries may make public
releases or announcements concerning the Transactions that are not materially inconsistent with previous press releases or announcements
made by Parent and/or the Company in compliance with this Section 4.11, (ii) Parent, the Parent Representatives, the Company
and the Company Representatives and Parent’s and the Company’s respective Subsidiaries may make public statements
in response to specific questions by the press, analysts, investors or those attending industry conferences or financial analyst
conference calls, so long as any such statements are not materially inconsistent with previous press releases, public disclosures
or public statements made jointly by the Company and Parent and do not reveal material, non-public information regarding the other
Party or Parties, the Merger or the other Transactions and (iii) the restrictions set forth in this Section 4.11 shall
not apply to any release or announcement made or proposed to be made in connection with, or in response to, a Change of Company
Board Recommendation that is effected in compliance with Section 4.6 or a Change of Parent Board Recommendation that is
effected in compliance with Section 4.7.
Section 4.12 Employee
Benefit Matters.
(a) With respect
to any “employee benefit plan” as defined in Section 3(3) of ERISA maintained by Parent or any of its Subsidiaries
in which any director, officer or employee of the Company or any of its Subsidiaries (the “Company Employees”)
will participate effective as of or after the Effective Time (collectively, “New Plans”), subject to applicable
Law and applicable Tax qualification requirements, Parent shall, or shall cause the Final Surviving Company to, recognize all
service of the Company Employees with the Company or any of its Subsidiaries that is reflected in the books and records of the
Company, as the case may be, for vesting, eligibility and level of benefits purposes (but not for accrual purposes, except for
vacation and severance) in any New Plan in which such Company Employees will be eligible to participate after the Effective Time,
in each case except to the extent that recognizing such service would result in a duplication of benefits. To the extent any Company
Employee participates in a New Plan that is a group health of Parent or any of its Subsidiaries following the Closing Date (a
“Parent Welfare Plan”), Parent and any of its Subsidiaries will, to the extent permitted by applicable Law
and any insurer or service provider under the applicable Parent Welfare Plan, cause all (i) pre-existing condition limitations
which otherwise would be applicable to such Company Employee and his or her covered dependents to be waived to the extent satisfied
under a Company Benefit Plan comparable to such Parent
Welfare Plan immediately
prior to the Closing Date or, if later, immediately prior to such Company Employee’s commencement of participation in such
Parent Welfare Plan, (ii) participation waiting periods under each Parent Welfare Plan that would otherwise be applicable to such
Company Employee to be waived to the same extent waived or satisfied under the Company Benefit Plan comparable to such Parent
Welfare Plan immediately prior to the Closing Date or, if later, immediately prior to such Company Employee’s commencement
of participation in such Parent Welfare Plan and (iii) co-payments and deductibles paid by Company Employees in the plan year
in which the Effective Time occurs to be credited for purposes of satisfying any applicable deductible or out of pocket requirement
under any such Parent Welfare Plan. In addition, to the extent that any Company Employee has begun a course of treatment with
a physician or other service provider who is considered “in network” under a Company Benefit Plan and such course
of treatment is not completed prior to the Closing, Parent will use reasonable efforts to arrange for transition care, whereby
such Company Employee may complete the applicable course of treatment with the pre-Closing physician or other service provider
at “in network” rates.
(b) For any Company
Employee that remains an employee of the Company, the First Step Surviving Corporation or the Final Surviving Company, or any
of their respective Subsidiaries or Affiliates (each a “Continuing Employee”), Parent shall (x) for a period
of 12 months following the Effective Time, provide for cash compensation and bonus opportunity at least equal to the aggregate
economic value of the total cash compensation and bonus opportunity (excluding equity compensation) that such Continuing Employee
received immediately prior to the Effective Time, (y) until December 31, 2016, provide employee benefits (excluding equity compensation)
no less favorable in the aggregate economic value of the benefits under the Company Benefit Plans as provided to such Continuing
Employees immediately prior to the Effective Time (which obligation, for clarification, only extends so long as such individual
remains an employee of the Company), and (z) and upon a termination without cause of a Continuing Employee, provide severance
benefits consistent with Parent’s policies for similarly situated employees, giving effect to service with the Company or
any of its Subsidiaries prior to the Effective Time, provided, however, the payment for any Continuing Employee terminated
within twelve (12) months following the Effective Time shall not be less than the Transaction Severance Benefits the Continuing
Employee would have received had he or she been a Non-Continuing Employee pursuant to Section 4.12(b), and provided
further, that if the Continuing Employee is entitled to severance and/or termination payments or benefits pursuant to any
written agreement between such Company Employee and the Company or any of its Subsidiaries, or is entitled to receive severance
and/or termination payments or benefits pursuant to the Company Change in Control Plan or the terms of any agreement or plan,
the terms of such agreement or plan shall govern in lieu of this paragraph if resulting in the provision of greater benefits than
this Section 4.12(b). For purposes of Section 409A of the Code, all such benefits will be paid consistent with the terms
of the arrangements that provide the greatest economic value to the Continuing Employee.
(c) For any Company
Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing
Employee with the severance payments and termination payments or benefits under the applicable formula set forth, or otherwise
described, in Section 4.12(c) of the Company Disclosure Schedule or any higher amount of severance and/or termination payments
or benefits as may be required by
applicable Law, any
agreement between such Company Employee and the Company or any of its Subsidiaries, or any agreement governing the relationship
between such Company Employee and the Company or any of its Subsidiaries (such payments and benefits, the “Transaction
Severance Benefits”). Except as otherwise required by applicable Law or the terms of such Transaction Severance
Benefits, Parent will pay or deliver the Transaction Severance Benefits to any such Non Continuing Employee as soon as reasonably
practicable following the termination of such Non Continuing Employee’s employment.
(d) The Company
and Parent or any Parent Subsidiary shall each use its commercially reasonable efforts to take any action reasonably appropriate
to mitigate and/or minimize the impact of the tax consequences of Section 280G of the Code (including as a result of the Transactions
under all employment, severance and termination agreements, other compensation arrangements and Company Benefit Plans) on any
individual that is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation
Section 1.280G-1).
(e) Prior to the
Effective Time, the Company shall take such actions as Parent may reasonably request so as to enable the First Step Surviving
Corporation and Final Surviving Company to effect such actions relating to the 401(k) plan of the Company (the “401(k)
Plan”) as Parent may deem necessary or appropriate, including amending and/or terminating the 401(k) Plan or any such
other plan prior to the Effective Time, subject to the terms of the 401(k) Plan or any such other plan and applicable Law and
provided that such action does not preclude the immediate participation of the Company Employees in any successor 401(k) plan
or other replacement plan. Notwithstanding the foregoing, and subject to applicable Law and collective bargaining arrangements,
the Company agrees to use commercially reasonable efforts to terminate, prior to Closing, any Company Benefit Plan as Parent may
direct at least ten (10) Business Days prior to the Effective Time.
(f) This Section
4.12 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section
4.12, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under
or by reason of this Section 4.12. Nothing contained herein shall (i) be treated as an amendment of any particular Company
Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 4.12 or (iii) require Parent
or any of its Affiliates to (A) maintain any particular Company Benefit Plan or (B) retain the employment of any particular employee
(g) Parent shall
(i) file with the SEC, no later than one Business Day after the date on which the Merger becomes effective, a registration statement
on Form S-8, Form S-3, or another appropriate or successor form (or any other appropriate or successor form), relating to the
shares of Parent Common Stock issuable with respect to the Company Options, Company RSUs, and Company Performance RSUs assumed
by Parent in accordance with Section 1.5(a)(iv) and Section 1.5(a)(v) (ii) use its reasonable best efforts to maintain
the effectiveness of such registration statement for so long as such assumed Company Options, Company RSUs, and Company Performance
RSUs remain outstanding; and (iii) deliver to each
holder of an assumed
Company Option, Company RSU or Company Performance RSUs an appropriate notice setting forth such holder’s rights pursuant
to such option or RSU
(h) Following the
date hereof, each of Parent and the Company (and their respective Affiliates) will use reasonable best efforts in all matters
necessary to effect the transactions contemplated by this Section 4.12 and the requirements of any applicable Law and will
provide, and will cause each of their respective representatives, including legal, human resources and regulatory compliance personnel,
to provide, all cooperation reasonably requested by the other Party in that regard, including, (i) cooperating and providing each
other with all necessary and reasonable assistance and information to ensure that any works councils or committees, trade unions
and/or employee representatives applicable to the Continuing Employees are provided with the information required in order for
proper consultation, notification and other required processes under applicable Law to take place, and (ii) exchanging information
and data, including reports prepared in connection with bonus plan participation and related data of Continuing Employees (other
than individual bonus opportunities based on target bonus as a percentage of base salary), relating to workers’ compensation,
employee benefits and employee benefit plan coverages, including information and data that are necessary to support or perform
any compensation consultant process or that is otherwise reasonably requested in connection with any compensation consultant process
(in each case, except to the extent prohibited by applicable Law or to the extent that such information and data relates to performance
ratings or assessments of employees of the Company and its Subsidiaries), making any and all required filings and notices, making
any and all required communications with Company Employees and obtaining any Governmental Authorizations required hereunder. Such
cooperation will include the provision of any information and consultation required by applicable Law, the terms of any Contract,
or as reasonably requested by the other Party. Each of Parent and the Company will make available its representatives at such
times and in such places as the other Party may reasonably request for purposes of discussions with representatives of any such
works council, economic committee, union or similar body.
Section 4.13 Indemnification
of Directors and Officers.
(a) For a period
of six years from and after the Effective Time, the Final Surviving Company shall (and Parent shall cause the Final Surviving
Company to) indemnify and hold harmless all past and present directors, officers and employees of the Company and its Subsidiaries
(collectively, the “Indemnified Persons”) to the same extent such Persons are indemnified as of the Agreement
Date by the Company pursuant to applicable Law, the Company Certificate, the Company Bylaws, and indemnification agreements in
existence on the Agreement Date and the comparable documents of its Subsidiaries (collectively, the “D&O Indemnification
Agreements”), arising out of acts or omissions in their capacity as directors, officers or employees of the Company
and its Subsidiaries occurring at or prior to the Effective Time. The Final Surviving Company shall (and Parent shall cause the
Final Surviving Company to) advance expenses (including reasonable legal fees and expenses) incurred in the defense of any Proceedings
with respect to the matters subject to indemnification pursuant to this Section 4.13(a) in accordance with the procedures
set forth in the Company Certificate, the Company Bylaws, the D&O Indemnification Agreements and the comparable documents
of its Subsidiaries, in existence on the Agreement Date; provided, however, that the director, officer or employee of the
Company and its Subsidiaries to whom expenses are advanced undertakes, to
the extent required
by the DGCL, to repay such advanced expenses to the Final Surviving Company if it is ultimately determined that such director,
officer or employee is not entitled to indemnification under applicable Law, the Company Certificate, the Company Bylaws, the
D&O Indemnification Agreements and comparable documents of its Subsidiaries.
(b) For a period
of six years from and after the Effective Time, to the extent permitted by applicable Law the certificate of formation and limited
liability company agreement of the Final Surviving Company shall contain provisions no less favorable with respect to exculpation,
indemnification and advancement of expenses of directors, officers and employees of the Company for periods at or prior to the
Effective Time than are currently set forth in the Company Certificate and the Company Bylaws. To the extent permitted by applicable
Law, the D&O Indemnification Agreements shall continue in full force and effect in accordance with their terms following the
Effective Time.
(c) Prior to the
Effective Time, the Company shall bind and purchase directors and officers runoff insurance coverage (the “D&O Runoff
Insurance”), which by its terms shall survive the Merger for not less than six years for the benefit of the Company,
its Subsidiaries, the Company’s and any Company Subsidiary’s past and present directors and/or officers that are insured
under the Company’s current directors’ and officers’ liability insurance policy in effect as of the Agreement
Date. The D&O Runoff Insurance shall provide coverage for the Company, its Subsidiaries and such persons in their capacity
as directors, officers and/or employees of the Company or any of its Subsidiaries prior to the Effective Time that is not less
favorable in the aggregate than the Company’s existing directors and officers policy (true and complete copies which have
been made available to Parent) or, if substantially equivalent insurance coverage is unavailable, the best available coverage.
The Final Surviving Company shall maintain the D&O Runoff Insurance in full force and effect and continue to honor the obligations
thereunder for a period of six years after the Effective Time or, if such policies are terminated or cancelled, obtain (subject
to the limitations set forth in the next sentence) alternative D&O Runoff Insurance on substantially similar terms as set
forth in this Section 4.13(c). Neither the Company nor the Final Surviving Company shall be required to pay an annual premium
for the D&O Runoff Insurance in excess of 300% (the “Maximum Amount”) of the last annual premium paid prior
to the Agreement Date (it being understood and agreed that in the event the cost of such D&O Runoff Insurance exceeds the
Maximum Amount, in the aggregate, the Company shall remain obligated to provide, and the Final Surviving Company shall be obligated
to maintain, the broadest D&O Runoff Insurance coverage as may be obtained for the Maximum Amount). The Company and Indemnified
Parties may be required to make reasonable application and provide reasonable and customary representations and warranties to
applicable insurance carriers for the purpose of obtaining such D&O Runoff Insurance. Parent shall upon written request furnish
a copy of such insurance policy to each beneficiary of such policy.
(d) In the event
the Final Surviving Company or its Subsidiaries or their respective successors or assigns (i) consolidate with or merge into any
other Person and are not the continuing or surviving company or Entity of such consolidation or merger or (ii) transfer all or
substantially all of their properties and assets to any Person, then proper provision shall be made so that such continuing or
surviving corporation or Entity or transferee of such assets, as
the case may be, shall
assume the obligations set forth in this Section 4.13, without relieving Parent of its obligations under this Section
4.13.
(e) The obligations
under this Section 4.13 shall not be terminated or modified in such a manner as to adversely affect in any material respect
any indemnitee to whom this Section 4.13 applies without the Consent of such affected indemnitee (it being expressly agreed
that the indemnitees to whom this Section 4.13 applies shall be third party beneficiaries of this Section 4.13).
Section 4.14 Certain
Tax Matters.
(a) Each of the
Parties shall use its reasonable best efforts to cause the First Merger and Second Merger, taken together, to qualify as a “reorganization”
within the meaning of Section 368(a) of the Code. None of the Parties shall (and each of the Parties shall cause their respective
Subsidiaries not to) take any action, or fail to take any action, that could reasonably be expected to cause the First Merger
and Second Merger, taken together, to fail to qualify as a “reorganization” within the meaning of Section 368(a) of
the Code. The Parties intend to report and, except to the extent otherwise required by Law, shall report, for federal income tax
purposes, the First Merger and Second Merger, taken together, as a “reorganization” within the meaning of Section
368(a) of the Code.
(b) Prior to the
effectiveness of the Form S-4 Registration Statement, Parent and the Company shall execute and deliver to Fenwick & West LLP
tax representation letters in the forms of Exhibit E-2 and Exhibit E-3, respectively. To the extent requested by
Parent or the Company, each of Parent, Merger Subs and the Company shall confirm to Fenwick & West LLP the accuracy and completeness
as of the Effective Time of the tax representation letters made available pursuant to the immediately preceding sentence. Following
the delivery of the tax representation letters pursuant to the first sentence of this Section 4.14(b), the Company shall
use its reasonable best efforts to cause Fenwick & West LLP to deliver to it a tax opinion satisfying the requirements of
Item 601 of Regulation S-K under the Securities Act. In rendering such opinion, such counsel shall be entitled to rely on the
tax representation letters referred to in this Section 4.14(b).
Section 4.15 State
Takeover Laws. If any Takeover Law becomes or is deemed to be applicable to the Company, Parent, Merger Subs, the Merger,
including by reason of the acquisition of shares of Company Common Stock pursuant thereto, the Company Stockholder Voting Agreements
or any other transaction contemplated to be consummated by the Parties pursuant to this Agreement, then the Company Board shall
take all action necessary to render such Law inapplicable to the foregoing.
Section 4.16 Section
16 Matters. Prior to the Effective Time, the Company Board, or an appropriate committee of non-employee directors thereof,
shall adopt a resolution consistent with the interpretive guidance of the SEC so that the disposition by any officer or director
of the Company who is a covered person of the Company for purposes of Section 16 of the Exchange Act and the rules and regulations
thereunder (“Section 16”) of Company Common Stock (including the disposition of shares of Company Restricted
Stock), Company Options and Company Common Stock acquired upon the vesting of any Company RSUs or Company
Performance RSUs, pursuant
to this Agreement, and the Merger shall be an exempt transaction for purposes of Section 16.
Section 4.17 Listing.
Parent shall use reasonable best efforts to cause the shares of Parent Common Stock being issued in the Merger to be approved
for listing (subject to notice of issuance) on the NASDAQ at or prior to the Effective Time.
Section 4.18 Board
of Directors. Parent will take all action necessary (including, if necessary, to increase the size of the Parent Board), and
shall cause one member of the Company Board who shall be designated by the Company and who shall satisfy the criteria for Parent
Board membership established by the Governance and Nominating Committee of the Parent Board as of the Agreement Date, to be appointed
to the Parent Board as of the Effective Time, subject to the election by Parent’s stockholders at the next annual meeting of Parent.
Section 4.19 Merger
Sub. Parent shall take all actions necessary to (a) cause Merger Subs to perform their respective obligations under this Agreement
and to consummate the Merger on the terms and conditions set forth in this Agreement, and (b) ensure that, prior to the Effective
Time, Merger Subs shall not conduct any business or make any investments or incur or guarantee any Indebtedness other than as
specifically contemplated by this Agreement.
Article
5 Conditions to Consummation of the Merger
Section 5.1 Conditions
Precedent to Obligations of Each Party Under This Agreement. The respective obligations of each Party to consummate the Merger
shall be subject to the satisfaction at or prior to the Effective Time of each of the following conditions:
(a) Company
Stockholder Approval. The Company Stockholder Approval shall have been obtained.
(b) Parent Stockholder
Approval. The Parent Stockholder Approval shall have been obtained.
(c) Antitrust
Consent. Any waiting period under the HSR Act applicable to the Transactions shall have expired or been earlier terminated.
(d) No Injunctions
or Restraints. The consummation of the Merger shall not then be restrained, enjoined or prohibited by any Order (whether temporary,
preliminary or permanent) of a court of competent jurisdiction or any other Governmental Authority of competent jurisdiction and
there shall not be in effect any Law promulgated or deemed applicable to the Merger by any Governmental Authority of competent
jurisdiction which prevents the consummation of the Merger.
(e) Effectiveness
of Registration Statement. The Form S-4 Registration Statement shall have become effective in accordance with the provisions
of the Securities Act; no stop order shall have been issued by the SEC and shall remain in effect with respect to the Form S-4
Registration Statement; and no Proceeding seeking such a stop order
shall have been initiated
by the SEC and remain pending or shall be threatened in writing by the SEC.
(f) Listing.
The shares of Parent Common Stock to be issued in the Merger shall have been approved for listing (subject to notice of issuance)
on the NASDAQ.
Section 5.2 Conditions
to Obligations of Parent and Merger Subs. The obligations of each of Parent and Merger Subs to effect the Merger are also
subject to the satisfaction or waiver by Parent at or prior to the Effective Time of the following conditions:
(a) Accuracy
of the Representations and Warranties of the Company. The representations and warranties of the Company contained in:
(i) Section
2.2(a) and Section 2.2(b) (Capitalization) shall be true and correct in all material respects as of the Agreement Date
and as of immediately prior to the Effective Time with the same force and effect as if made on and as of the Agreement Date and
as of immediately prior to the Effective Time except for representations and warranties in Section 2.2(a) and Section
2.2(b) that relate to a specific date or time (which need only be true and correct in all material respects as of such date
or time), provided, however, that if any inaccuracies in Section 2.2(a) and Section 2.2(b), individually
or in the aggregate, result in the aggregate amount required to be paid by Parent as additional consideration in the Merger to
increase by more than 1%, such representations and warranties in Section 2.2(a) and Section 2.2(b) shall be deemed
to fail to be true and correct in all material respects;
(ii) Section
2.1 (Corporate Existence), Section 2.2(c) through Section 2.2(h) (Capitalization), Section 2.3 (Corporate
Authority), Section 2.20 (Finders; Brokers) and Section 2.21 (Opinion of Company Financial Advisor) (collectively,
the “Fundamental Representations”) to the extent qualified by materiality or “Company Material Adverse
Effect” shall be true and correct in all respects as of the Agreement Date and as of immediately prior to the Effective
Time with the same force and effect as if made on and as of the Agreement Date and as of immediately prior to the Effective Time
except for representations and warranties in the Fundamental Representations that relate to a specific date or time (which need
only be true and correct as of such date or time), and all of the Fundamental Representations to the extent not qualified by materiality
or “Company Material Adverse Effect” shall be true and correct in all material respects as of the Agreement Date and
as of immediately prior to the Effective Time with the same force and effect as if made on and as of the Agreement Date and as
of immediately prior to the Effective Time except for representations and warranties in the Fundamental Representations that relate
to a specific date or time (which need only be true and correct as of such date or time); and
(iii) Article
2 of this Agreement (other than in Section 2.2(a) and Section 2.2(b) (Capitalization) and the Fundamental Representations)
(without giving effect to any materiality or “Company Material Adverse Effect” qualifications therein (except for
the representation in Section 2.9(a) (Absence of Certain Changes or Events) of the Agreement)), shall be true and correct
as of the Agreement Date and as of immediately prior to the Effective Time with the same force and effect as if made on and as
of the Agreement Date and as of immediately prior to the Effective Time except for such representations and warranties in this
Agreement that relate
to a specific date or time (which need only be true and correct in all material respects as of such date or time), in each
case, except for such failures to be true and correct, individually and in the aggregate, as have not had a Company Material
Adverse Effect that is continuing.
(b) Covenants of
the Company. The Company shall have performed in all material respects all obligations and agreements contained in this Agreement
to be performed or complied with by it prior to or on the Closing Date.
(c) Company Material
Adverse Effect. Since the Agreement Date, a Company Material Adverse Effect shall not have occurred and be continuing.
(d) Closing Certificate.
Parent shall have received a certificate of the Company, executed by the Chief Executive Officer or the Chief Financial Officer
of the Company, dated as of the Closing Date, to the effect that the conditions set forth in Section 5.1(a), Section
5.2(a), Section 5.2(b) and Section 5.2(c) have been satisfied in accordance with the terms thereof.
Section 5.3 Conditions
to Obligations of Company. The obligations of the Company to effect the Merger are also subject to the satisfaction or waiver
by the Company at or prior to the Effective Time of the following conditions:
(a) Accuracy of
the Representations and Warranties of Parent and Merger Subs. The representations and warranties of Parent and Merger Sub
contained in:
(i) Section 3.2(a)
and Section 3.2(b) (Capitalization) shall be true and correct in all material respects as of the Agreement Date and
as of immediately prior to the Effective Time with the same force and effect as if made on and as of the Agreement Date and as
of immediately prior to the Effective Time except for representations and warranties in Section 3.2(a) and Section 3.2(b)
that relate to a specific date or time (which need only be true and correct in all material respects as of such date or time),
provided, however, that if any inaccuracies in Section 3.2(a) and Section 3.2(b), individually or in the
aggregate, result in the aggregate percentage of Parent to be acquired by the Company Stockholders and other equityholders (including
as a result of the assumption of additional Company Options, Company Restricted Stock, Company RSUs, Company Performance RSUs,
or other securities convertible into Company Common Stock in connection with the Merger) to decrease by more than 1%, such representations
and warranties in Section 3.2(a) and Section 3.2(b) shall be deemed to fail to be true and correct in all material
respects.
(ii) Section 3.1
(Corporate Existence), Section 3.2(c) through Section 3.2(g) (Capitalization) Section 3.3 (Corporate
Authority), Section 3.21 (Finders; Brokers) and Section 3.22 (Opinion of Parent Financial Advisor) (collectively,
the “Parent Fundamental Representations”) to the extent qualified by materiality or “Parent Material
Adverse Effect” shall be true and correct in all respects as of the Agreement Date and as of immediately prior to the Effective
Time with the same force and effect as if made on and as of the Agreement Date and as of immediately prior to the Effective Time
except for representations and warranties in the Parent Fundamental Representations that relate to a specific date or time
(which need only be
true and correct as of such date or time), and all of the Parent Fundamental Representations to the extent not qualified by materiality
or “Parent Material Adverse Effect” shall be true and correct in all material respects as of the Agreement Date and
as of immediately prior to the Effective Time with the same force and effect as if made on and as of the Agreement Date and as
of immediately prior to the Effective Time except for representations and warranties in the Parent Fundamental Representations
that relate to a specific date or time (which need only be true and correct as of such date or time); and
(iii) Article 3
of this Agreement (other than Section 3.2(a) and (b) (Capitalization) and the Parent Fundamental Representations)
(without giving effect to any materiality or “Parent Material Adverse Effect” qualifications therein (except for the
representation in Section 3.9(a) (Absence of Certain Changes or Events) of the Agreement)), shall be true and correct as
of the Agreement Date and as of immediately prior to the Effective Time with the same force and effect as if made on and as of
the Agreement Date and as of immediately prior to the Effective Time except for such representations and warranties in this Agreement
that relate to a specific date or time (which need only be true and correct in all material respects as of such date or time),
in each case, except for such failures to be true and correct, individually and in the aggregate, as have not had a Parent Material
Adverse Effect that is continuing.
(b) Covenants of
the Company. Parent and Merger Subs shall have performed in all material respects all obligations and agreements contained
in this Agreement to be performed or complied with by them prior to or on the Closing Date.
(c) Parent Material
Adverse Effect. Since the Agreement Date, a Parent Material Adverse Effect shall not have occurred and be continuing.
(d) Closing Certificate.
The Company shall have received a certificate of Parent, executed by the Chief Executive Officer or the Chief Financial Officer
of Parent dated as of the Closing Date, to the effect that the conditions set forth in Section 5.1(b), Section 5.3(a),
Section 5.3(b) and Section 5.3(c) have been satisfied in accordance with the terms thereof.
(e) Company Tax
Opinion. The Company shall have received from Fenwick & West LLP, Tax counsel to the Company, substantially in the form
attached hereto as Exhibit E-1, on the basis of certain facts, representations and assumptions set forth in such opinion,
dated as of the date on which the Form S-4 Registration Statement is filed and as of the Closing Date, to the effect that the
First Merger and the Second Merger will together qualify as a tax-free “reorganization” within the meaning of Section
368(a) of the Code. In rendering such opinion, Fenwick & West LLP shall be entitled to rely upon representations of officers
of Parent and Merger Subs made substantially in the form attached hereto as Exhibit E-2 and the Company made substantially
in the form attached hereto as Exhibit E-3.
Article
6
Termination,
Amendment and Waiver
Section 6.1 Termination.
This Agreement may be terminated and the Merger may be abandoned by action taken or authorized by the Board of Directors of the
terminating Party or Parties:
(a) By mutual written
consent of Parent and the Company, by action of their respective Boards of Directors, at any time prior to the Effective Time,
whether before or after receipt of the Company Stockholder Approval and Parent Stockholder Approval;
(b) By Parent or the
Company, if the Effective Time shall not have occurred on or before the Outside Date; provided, however that the right
to terminate this Agreement pursuant to this Section 6.1 shall not be available to any Party whose breach of this Agreement
has been the primary cause of the failure of the Effective Time to have occurred on or before the Outside Date;
(c) By either the
Company or Parent, if any court of competent jurisdiction or other Governmental Authority of competent jurisdiction shall have
issued an Order or taken any other action permanently restraining, enjoining or otherwise prohibiting, whether before or after
receipt of the Company Stockholder Approval and Parent Stockholder Approval, the Merger, and such Order shall have become final
and nonappealable;
(d) By either the
Company or Parent, if (i) the Company Stockholders Meeting (including any adjournment or postponement thereof) has concluded,
the Company Stockholders have duly voted, and the Company Stockholder Approval was not obtained or (ii) the Parent Stockholders
Meeting (including any adjournment or postponement thereof) has concluded, the Parent Stockholders have duly voted, and the Parent
Stockholder Approval was not obtained;
(e) By Parent, at
any time prior to the Effective Time, if the Company Board shall have effectuated a Change of Company Board Recommendation;
(f) By the Company,
at any time prior to the Effective Time, if the Parent Board shall have effectuated a Change of Parent Board Recommendation;
(g) By the Company,
at any time prior to the receipt of the Company Stockholder Approval, if the Company Board determines to accept a Superior Proposal
in compliance with Section 4.6; provided, however, that such termination shall not be effective unless the Company
shall simultaneously with such termination enter into the Alternative Company Acquisition Agreement and pay the Termination Fee
to Parent substantially concurrently with such termination;
(h) By Parent, at
any time prior to the receipt of the Parent Stockholder Approval, if the Parent Board determines to accept a Parent Superior Proposal
in compliance with Section 4.7; provided, however, that such termination shall not be effective unless Parent shall
simultaneously with such termination enter into the Alternative Parent
Acquisition Agreement
and pay the Parent Termination Fee to the Company substantially concurrently with such termination;
(i) By Parent, at
any time prior to the Effective Time if: (i) there shall be an Uncured Inaccuracy in any representation or warranty of the Company
contained in this Agreement or a breach of any covenant of the Company contained in this Agreement, in any case, such that any
condition to the Merger set forth in Section 5.2(a) or Section 5.2(b) would not then be satisfied, (ii) Parent shall
have delivered to the Company written notice of such Uncured Inaccuracy or breach of covenant, and (iii) either such Uncured Inaccuracy
or breach of covenant is not capable of cure or at least 20 Business Days shall have elapsed since the date of delivery of such
written notice to the Company and such Uncured Inaccuracy or breach of covenant shall not have been cured; provided, however,
that Parent shall not be permitted to terminate this Agreement pursuant to this Section 6.1(i) if any of the circumstances
referred to in clauses (i) or (iii) of this Section 6.1(i) was caused by the breach of this Agreement by Parent or Merger
Subs; or
(j) By the Company,
at any time prior to the Effective Time if: (i) there shall be an Uncured Inaccuracy in any representation or warranty of Parent
or Merger Subs contained in this Agreement or breach of any covenant of Parent or Merger Subs contained in this Agreement, in
any case, such that any condition to the Merger set forth in Section 5.3(a) or Section 5.3(b) would not then be
satisfied, (ii) the Company shall have delivered to Parent written notice of such Uncured Inaccuracy or breach of covenant, and
(iii) either such Uncured Inaccuracy or breach of covenant is not capable of cure or at least 20 Business Days shall have elapsed
since the date of delivery of such written notice to Parent and such Uncured Inaccuracy or breach of covenant shall not have been
cured; provided, however, that the Company shall not be permitted to terminate this Agreement pursuant to this Section
6.1(j) if any of the circumstances referred to in clauses (i) or (iii) of this Section 6.1(j) was caused by the breach
of this Agreement by the Company.
Section 6.2 Effect
of Termination; Termination Fees.
(a) In the event of
termination of this Agreement by either the Company or Parent as provided in Section 6.1, this Agreement shall forthwith
become void and there shall be no Liability on the part of Parent, Merger Subs or the Company or their respective Subsidiaries,
officers, directors, employees, agents or representatives except (i) with respect to Section 4.3(b) (Confidentiality),
Section 4.11 (Public Announcements), this Section 6.2 and Article 7 and (ii) with respect to any Liabilities
incurred or suffered by a Party as a result of an Intentional Breach by another Party of any of its representations, warranties,
covenants or other agreements set forth in this Agreement, or from any obligation to pay the Termination Fee, Parent Termination
Fee, Regulatory Termination Fee or Financing Termination Fee pursuant to this Section 6.2.
(b) In the event that
this Agreement is terminated (i) by Parent pursuant to Section 6.1(e), (ii) by the Company pursuant to Section 6.1(g)
or (iii) pursuant to Section 6.1(d)(i) at a time when Parent has a right to terminate pursuant to Section 6.1(e),
then the Company shall pay to Parent concurrently with such termination in the case of a termination by the Company, or within
two Business Days thereafter in the case of a termination by Parent, the Termination Fee.
(c) In the event that
this Agreement is terminated (i) by the Company pursuant to Section 6.1(f), (ii) by Parent pursuant to Section 6.1(h),
or (iii) pursuant to Section 6.1(d)(ii) at a time when the Company has a right to terminate pursuant to Section
6.1(f), then Parent shall pay to the Company concurrently with such termination in the case of a termination by Parent, or
within two Business Days thereafter in the case of a termination by the Company, the Parent Termination Fee.
(d) In the event that
(i) this Agreement is terminated by Parent or the Company pursuant to Section 6.1(b) or Section 6.1(d)(i), and (ii)
prior to the date of such termination of this Agreement, a bona fide Acquisition Proposal shall have been made to the Company
or any of its Subsidiaries or shall have been made directly to the Company Stockholders generally or any Person shall have publicly
announced (and not publicly withdrawn prior to such termination) an intention (whether or not conditional) to make a bona fide
Acquisition Proposal with respect to the Company, and (iii) within 12 months after such termination, the Company either (1)
consummates any transaction contemplated by the definition of Acquisition Proposal or (2) enters into a definitive agreement with
respect to any transaction contemplated by the definition of Acquisition Proposal and subsequently consummates such transaction,
even if such transaction is consummated after such 12-month period (provided that for all purposes of this Section 6.2(d),
the term Acquisition Proposal shall have the meaning assigned to such term in Exhibit A, except that the references to
“15%” shall be deemed to be references to 50%), then the Company shall pay to Parent the Termination Fee on the date
no later than two Business Days after the consummation of such Acquisition Proposal.
(e) In the event that
(i) this Agreement is terminated by Parent or the Company pursuant to Section 6.1(b) or Section 6.1(d)(ii), and
(ii) prior to the date of such termination of this Agreement, a bona fide Parent Acquisition Proposal shall have been made
to Parent or any of its Subsidiaries or shall have been made directly to the Parent Stockholders generally or any Person shall
have publicly announced (and not publicly withdrawn prior to such termination) an intention (whether or not conditional) to make
a bona fide Parent Acquisition Proposal with respect to Parent, and (iii) within 12 months after such termination, Parent
either (1) consummates any transaction contemplated by the definition of Parent Acquisition Proposal or (2) enters into a definitive
agreement with respect to any transaction contemplated by the definition of Parent Acquisition Proposal and subsequently consummates
such transaction, even if after such 12-month period, then Parent shall pay to the Company the Parent Termination Fee on the date
no later than two Business Days after the consummation of such Parent Acquisition Proposal.
(f) In the event that
this Agreement is terminated by Parent or the Company pursuant to either Section 6.1(b) or Section 6.1(c) and at
such time either of the conditions set forth in Section 5.1(c) or Section 5.1(d) (but only with respect to any Order
or restraint relating to Antitrust Laws) of this Agreement have not been satisfied, then Parent shall pay to the Company the Regulatory
Termination Fee on the date no later than two Business Days following such termination.
(g) In the event
that (i) this Agreement is terminated by Parent or the Company pursuant to either Section 6.1(b) and at such time
all of the conditions set forth in Article 5 have been satisfied or waived (other than those conditions that by their
terms are to be
satisfied by actions
taken at the Closing or are within the control of Parent (including Section 5.1(f)) and Parent does not then have readily
available the Required Amount, or Parent and Merger Subs otherwise fail to consummate the transactions
contemplated by this Agreement on the date the Closing should have occurred pursuant to Section 1.3, or (ii) this Agreement is
otherwise terminated by Parent or the Company at a time at which the Company could terminate this Agreement under circumstances described in
clause (iii) of this Section 6.2(g), or (iii) this Agreement is terminated by the Company pursuant to Section 6.1(j) as a result of a breach by
Parent of Section 3.15 or Section 4.9, then Parent shall pay to the Company the Financing Termination Fee on the date
no later than two Business Days following such termination.
(h) All payments under
this Section 6.2 shall be made by wire transfer of immediately available funds to an account designated in writing by Parent
or the Company, as applicable.
(i) Each of the Company,
Parent and Merger Subs acknowledges that (i) the agreements contained in this Section 6.2 are an integral part of the Transactions,
(ii) without these agreements, Parent, Merger Subs and the Company would not enter into this Agreement, and (iii) none of the
Parent Termination Fee, Regulatory Termination Fee, Financing Termination Fee or Termination Fee is a penalty, but rather constitute damages in a reasonable
amount that will, subject to Section 6.2(j), compensate Parent or the Company, as applicable, in the circumstances in which
such Parent Termination Fee, Regulatory Termination Fee, Financing Termination Fee or Termination Fee is payable. Accordingly, if a Party fails to pay in
a timely manner the Parent Termination Fee, Regulatory Termination Fee, Financing Termination Fee or the Termination Fee, as applicable, and, in order to
obtain such payment, the Party to receive such fee makes a claim that results in a judgment for the amount set forth in this Section
6.2, the Party paying such fee shall also pay to the Party receiving such fee its reasonable costs and expenses (including
reasonable fees and costs of counsel) in connection with such suit, together with interest on the amount set forth in this Section
6.2 at the prime rate of Bank of America, N.A. in effect from time to time from the date such payment was required to be made
hereunder
(j) Notwithstanding
anything to the contrary in this Agreement, in the event that this Agreement is terminated as described in Section 6.2(g)
and the Financing Termination Fee is paid to the Company (or its designee) in accordance with the provisions of this Agreement, the
Company shall have the right, exercisable by written notice to Parent within two Business Day after receipt of payment of such
Financing Termination Fee, to refund such Financing Termination Fee to Parent, and in the event that Parent receives a full refund of
the Financing Termination Fee within two Business Day after the delivery of such notice, the Company shall be entitled to all remedies
available to it pursuant to Section 6.2(a) and Section 7.7. If, after receiving a Financing Termination Fee, the Company
fails to exercise its right to refund the Financing Termination Fee in accordance with the time periods provided for in this Section
6.2(j), the Company shall be deemed to have irrevocably waived such right and Parent and its agents and representatives shall
have no further liability to the Company relating to or under this Agreement, or with respect to the negotiation, execution, performance
or any actual or purported breach hereof or the Transactions, or in respect of any other document or theory of law or equity,
or in respect of any representations, warranties, covenants and agreements made or alleged to be made in connection herewith or
therewith, whether at law or equity, in contract, in tort or otherwise, except as set forth in Section 6.2(a)(i). In no
event shall any Party be required to pay the Parent Termination Fee, the Regulatory Termination Fee, Financing Termination Fee or the Termination Fee on
more than one occasion.
Section 6.3 Amendment.
This Agreement may be amended by the Company, Parent and Merger Subs by action taken by or on behalf of their respective boards
of directors at any time prior to the Effective Time; provided, however, that, after the receipt of the Company Stockholder
Approval or Parent Stockholder Approval, there shall be no amendment that by Law or in accordance with the rules of NASDAQ requires
further approval by the Company Stockholders or Parent Stockholders, as applicable, without the further approval of the Company
Stockholders or Parent Stockholders, as applicable. This Agreement may not be amended except by an instrument in writing signed
by the Parties hereto.
Section 6.4 Waiver.
At any time prior to the Effective Time, Parent and Merger Subs, on the one hand, and the Company, on the other hand, may (i)
extend the time for the performance of any of the obligations or other acts of the other, (ii) waive any Uncured Inaccuracies
in the representations and warranties of the other contained herein or in any document delivered pursuant hereto and (iii) waive
compliance by the other with any of the agreements or conditions contained herein; provided, however, that after receipt
of the Company Stockholder Approval or the Parent Stockholder Approval, there shall be made no waiver that by Law or in accordance
with the rules of NASDAQ requires further approval by the Company Stockholders or Parent Stockholders, as applicable, without
the further approval of the Company Stockholders or Parent Stockholders, as applicable. 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. The failure of any Party to assert any of its rights under this
Agreement or otherwise shall not constitute a waiver of those rights.
Section 6.5 General.
Notwithstanding anything to the contrary contained in Section 6.3 or Section 6.4, in no event shall Section 4.9(g),
this Section 6.5, Section 7.6, Section 7.8, Section 7.9 or Section 7.13 (or any other provision
of this Agreement to the extent an amendment, modification, waiver or termination of such provision would modify the substance
of Section 4.9(g), Section 7.6, Section 7.8, Section 7.9 or Section 7.13 be amended, modified,
waived or terminated in a manner that impacts or is adverse in any respect to the Financing Sources without the prior written
consent of the Financing Sources.
Article
7
MISCELLANEOUS
PROVISIONS
Section 7.1 Non-Survival
of Representations and Warranties. None of the representations and warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time. This Section 7.1 shall not limit any covenant or agreement
of the Parties which by its terms contemplates performance after the Effective Time.
Section 7.2 Fees
and Expenses. All expenses incurred by the Parties hereto shall be borne solely and entirely by the Party which has incurred
the same, except that (i) the filing fee under the HSR Act and all other applicable Antitrust Laws, (ii) the expenses contemplated
by Section 4.8(f) and (iii) expenses incurred in connection with the filing fee for the Form S-4 Registration Statement
and printing and mailing the Joint Proxy Statement/Prospectus and the
Form S-4 Registration
Statement shall be shared equally by Parent and the Company. Any expenses contemplated by Section 4.9(g) shall be borne solely
by Parent.
Section 7.3 Notices.
All notices, requests, demands and other communications under this Agreement shall, except to the extent expressly provided to
be oral under this Agreement, be in writing and shall be deemed to have been duly given or made as follows: (a) if sent by registered
or certified mail in the United States return receipt requested, upon receipt; (b) if sent designated for overnight delivery by
nationally recognized overnight air courier (such as DHL or Federal Express), upon receipt of proof of delivery; (c) if sent by
facsimile transmission or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment on a Business Day before 5:00 p.m.
in the time zone of the receiving Party, when transmitted and receipt is confirmed; (d) if sent by facsimile transmission or e-mail
of a .pdf, .tif, .gif, .jpeg or similar electronic attachment on a day other than a Business Day or after 5:00 p.m. in the time
zone of the receiving Party, and receipt is confirmed, on the following Business Day; and (e) if otherwise actually personally
delivered, when delivered, provided that such notices, requests, demands and other communications are delivered to the
address set forth below, or to such other address as any Party shall provide by like notice to the other Parties to this Agreement:
If to Parent or Merger
Subs, addressed to it at:
Snyder’s-Lance, Inc.
13515 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Attention: , President and Chief Executive Officer
Facsimile:
Email:
with a copy to:
Snyder’s-Lance, Inc.
13515 Ballantyne Corporate Place
Charlotte, North Carolina 28277
Attention: , Chief General Counsel
Facsimile:
Email:
with a copy to (for
information purposes only):
Troutman Sanders LLP
One Wells Fargo Center
301 S. College Street, Suite 3400
Charlotte, North Carolina 28202
Attention:
Facsimile:
Email:
If to the Company,
addressed to it at:
Diamond Foods, Inc.
600 Montgomery Street, 13th Floor
San Francisco, California 94111
Attention: , President and Chief Executive Officer
Facsimile:
Email:
with a copy to:
Diamond Foods, Inc.
600 Montgomery Street, 13th Floor
San Francisco, California 94111
Attention: , Executive Vice President and General Counsel
Facsimile:
Email:
with a copy to (for
information purposes only):
Fenwick & West LLP
555 California Street, 12th Floor
San Francisco, California 94104
Attention:
Facsimile:
Email:
Section 7.4 Severability.
Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions of this Agreement or the validity or enforceability of the
offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision of this Agreement is invalid or unenforceable, the Parties hereto agree that
the court making such determination shall have the power to limit the term or provision, to delete specific words or phrases or
to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes
closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable
as so modified. In the event such court does not exercise the power granted to it in the prior sentence, the Parties hereto agree
to replace such invalid or unenforceable term or provision with a valid and enforceable term or provision that will achieve, to
the extent possible, the economic, business and other purposes of such invalid or unenforceable term.
Section 7.5 Entire
Agreement. This Agreement (together with the Company Disclosure Schedule and the Parent Disclosure Schedule and the other
documents delivered pursuant hereto) 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 and, except as otherwise
expressly provided herein,
are not intended to confer upon any other Person any rights or remedies hereunder.
Section 7.6 Assignment;
Third Party Beneficiaries.
(a) This Agreement
shall not be assigned by any Party without the prior written consent of the other Parties, and any attempted assignment, without
such consent, shall be null and void; provided that Parent, Merger Sub and Merger Sub II may assign all or a portion
of their respective rights hereunder to any Financing Source, including, without limitation, any agent or other representative
thereof, as collateral security for obligations thereto in respect of the Financing, including any refinancings, extensions, refundings
or renewals thereof without the consent of the Company, but any such assignment shall not relieve Parent, Merger Sub and Merger
Sub II of their respective obligations under this Agreement. Subject to the preceding sentence, this Agreement shall be binding
upon and inure solely to the benefit of each Party hereto and their respective permitted successors and permitted assigns, and
nothing in this Agreement, express or implied, other than pursuant to Section 4.13 (Indemnification of Directors and Officers),
is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason
of this Agreement.
(b) Notwithstanding
the foregoing clause (a), the Financing Sources shall be third party beneficiaries of the provisions set forth in Section 6.5,
this Section 7.6, Section 7.8, Section 7.9 and Section 7.13 (and such provisions shall be enforceable
against all parties to this Agreement by each Financing Source and their respective successors and assigns).
Section 7.7 Specific
Performance. The Parties hereto agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached and that money damages or other
legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that prior to any valid termination
of this Agreement in accordance with Section 6.1, (a) each Party shall be entitled to an injunction or injunctions to prevent
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 and (b) the Parties shall waive, in any Proceeding for specific performance,
the defense of adequacy of a remedy at Law. Each Party further agrees that no other Party hereto or any other Person shall be
required to obtain, furnish or post any bond or similar instrument in connection with or as a condition to obtaining any remedy
referred to in this Section 7.7, and each Party hereto irrevocably waives any right it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument. A party’s pursuit of specific performance at any time shall
not be deemed an election of remedies or waiver of the right to pursue any other right or remedy to which such party may be entitled,
including the right to pursue remedies for Liabilities or damages incurred or suffered by such party in the case of a breach of
this Agreement involving fraud or willful or intentional misconduct.
Section 7.8 Governing
Law. This Agreement and all claims arising out of this Agreement shall be governed by, and construed in accordance with, the
internal Laws of the State of Delaware (whether arising in contract, tort, equity or otherwise), without regard to any conflicts
of law principles that would result in the application of any Law other than the Law of
the State of Delaware;
provided that, notwithstanding the foregoing, all disputes or controversies involving the Financing Sources (other than
any determinations as to (i) whether any representations and warranties made by or on behalf of the Company in this Agreement
have been breached, (ii) whether the Parent, Merger Sub, Merger Sub II or any of their respective Subsidiaries can terminate their
(or its) obligations under this Agreement or (iii) whether a Company Material Adverse Effect has occurred, in each case which
shall be governed by, and construed in accordance with, the internal Laws of the State of Delaware), shall be governed by, and
construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction
that might be applied because of the conflicts of laws principles of the State of New York. For the avoidance of doubt, any disputes
or controversies relating to Section 4.9(b) or Section 6.2(g) shall be governed by, and construed in accordance
with, the internal Laws of the State of Delaware.
Section 7.9 Consent
to Jurisdiction. The Parties hereby irrevocably and unconditionally submit to the exclusive jurisdiction of the Court of Chancery
of the State of Delaware or, if such court shall not have jurisdiction, any Federal court of the United States of America located
within the State of Delaware, solely in respect of the interpretation and enforcement of the provisions of this Agreement and
of the documents referred to in this Agreement, and in respect of the transactions contemplated hereby and thereby, and, to the
fullest extent permitted by Law, hereby waive, and agree not to assert, as a defense in any action, suit or other Proceeding for
the interpretation or enforcement hereof or thereof, that it is not subject thereto or that such action, suit or other Proceeding
may not be brought or is not maintainable in said courts or that the venue thereof may not be appropriate or that this Agreement
or any such document may not be enforced in or by such courts, and the Parties irrevocably and unconditionally agree that all
claims with respect to such action, suit or other Proceeding shall be heard and determined in such a Delaware State or, to the
extent required or permitted by Law, Federal court. The Parties hereby consent to and grant any such court jurisdiction over the
Person of such Parties and over the subject matter of such dispute and agree that mailing of process or other papers in connection
with any such action, suit or Proceeding in the manner provided for notices in Section 7.3 or in such other manner as may
be permitted by applicable Law, shall be valid and sufficient service thereof. With respect to any particular action, suit or
other Proceeding, venue shall lie solely in the Court of Chancery of the State of Delaware or such Federal court located within
the State of Delaware. The Parties further agree, to the extent permitted by Law, that final and non-appealable judgment against
a Party in any Proceeding contemplated above shall be conclusive and may be enforced in any other jurisdiction within or outside
the United States by suit on the judgment, a certified or exemplified copy of which shall be conclusive evidence of the fact and
amount of such judgment.
Section 7.10 WAIVER
OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT, EQUITY OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT, THE FINANCING COMMITMENTS, THE FINANCING OR THE ACTIONS OF ANY PARTY HERETO AND THERETO IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF OR THEREOF.
Section 7.11 Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar
attachment (“Electronic Delivery”) in two or more counterparts, and by the different Parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Any such counterpart, to the extent delivered using Electronic Delivery shall be treated
in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as
if it were the original signed version thereof delivered in person. No Party hereto shall raise the use of Electronic Delivery
to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use
of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except
to the extent that such defense relates to lack of authenticity.
Section 7.12 Rules
of Construction.
(a) The Parties have
been represented by counsel during the negotiation, preparation and execution of this Agreement and, therefore, hereby waive,
with respect to this Agreement and each Exhibit and each Schedule attached hereto, the application of any Law or rule of construction
providing that ambiguities in an agreement or other document shall be construed against the Party drafting such agreement or document.
(b) When a reference
is made in this Agreement to Sections, Exhibits or Schedules, such reference shall be to a Section of, or an Exhibit to this Agreement
or Schedule to the Company Disclosure Schedule or Parent Disclosure Schedule, as applicable, unless otherwise indicated. The words
“hereof, “herein”, “hereto” and “hereunder” and words of similar import when used in
this Agreement will refer to this Agreement as a whole (including any exhibits and schedules to this Agreement) and not to any
particular provision of this Agreement. The words “include”, “including”, or “includes” when
used herein shall be deemed in each case to be followed by the words “without limitation” or words having similar
import. The phrases “delivered,” “made available,” “provided to,” “furnished to,”
and phrases of similar import when used herein, unless the context otherwise requires, shall mean that a true, correct and complete
paper copy of the information or material referred to has been provided to the Party to whom such information or material is to
be provided, have been deposited by the Company or Parent in the electronic datarooms maintained for the Transactions by the Company
or Parent, as applicable, or publicly filed by the Company with the SEC. The headings and table of contents in this Agreement
are included for convenience of reference only and will not limit or otherwise affect the meaning or interpretation of this Agreement.
Unless the context of this Agreement otherwise requires: (i) words of any gender include each other gender and (ii) words using
the singular or plural number also include the plural or singular number, respectively.
Section 7.13 No
Recourse to Financing Sources. Notwithstanding anything herein to
the contrary, the Company (on behalf of itself, its Affiliates and its and their respective shareholders, partners, members, directors,
officers, employees, agents and representatives) hereby waives any rights or claims against each Financing Source in connection
with this Agreement, the Financing, and the Financing Commitments, whether at law or equity, in contract, in tort or otherwise,
and the Company (on behalf of itself, its Affiliates and its and their respective shareholders, partners, members, directors,
officers, employees, agents and
representatives) agrees
not to commence (and if commenced agrees to dismiss or otherwise terminate) any action or proceeding against any Financing Source
in connection with this Agreement or any transaction contemplated hereby or thereby (including any action or proceeding relating
to the Financing or the Financing Commitments). In furtherance and not in limitation of the foregoing waiver, it is agreed that
no Financing Source shall have any liability for any claims, losses, settlements, liabilities, damages, costs, expenses, fines
or penalties to the Company (or any of its Affiliates or any of its or their respective shareholders, partners, members, directors,
officers, employees, agents and representatives) in connection with this Agreement or any transaction contemplated hereby or thereby
(including any action or proceeding relating to the Financing or the Financing Commitments). Nothing in this Section 7.13 shall
in any way (i) affect the circumstances in which the Parent or any Merger Sub may be liable under this Agreement or as a result
of the transactions contemplated hereby (including as a result of the Financing) or (ii) limit or qualify the obligations and
liabilities of the parties to the Financing Commitments to each other thereunder or in connection therewith.
[Remainder of page intentionally left
blank]
In
Witness Whereof, the Parties have caused this Agreement to be executed as of the date first above written.
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Snyder’s-Lance, Inc. |
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/s/ Carl E. Lee |
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Name: |
Carl E. Lee |
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Title: |
President and Chief Executive Officer |
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Shark Acquisition Sub I, Inc. |
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By: |
/s/ Carl E. Lee |
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Name: |
Carl E. Lee |
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Title: |
President and Chief Executive Officer |
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Shark Acquisition Sub II, LLC |
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By: |
/s/ Carl E. Lee |
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Name: |
Carl E. Lee |
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Title: |
President and Chief Executive Officer |
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Diamond Foods, Inc. |
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By: |
/s/ Brian J. Driscoll |
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Name: |
Brian J. Driscoll |
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Title: |
President and Chief Executive Officer |
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Exhibit A
Certain
Definitions
2014 Company Performance
RSUs. “2014 Company Performance RSUs” shall mean the Company Performance RSUs granted by the Company in or around
October 2014.
2015 Company Performance
RSUs. “2015 Company Performance RSUs” shall mean the Company Performance RSUs granted by the Company in or around
October 2015.
Acceptable Confidentiality
Agreement. “Acceptable Confidentiality Agreement” shall mean a confidentiality agreement that (a) contains provisions
that are at least as restrictive in all material respects as those contained in the Confidentiality Agreement, provided,
that such confidentiality agreement need not contain any standstill provision, (b) does not prohibit the Company or Parent, as
applicable, from complying with the provisions of Section 4.6 and (c) does not include any provision calling for an exclusive
right to negotiate with the Company or Parent, as applicable, prior to the termination of this Agreement.
Acquisition Inquiry.
“Acquisition Inquiry” shall mean any inquiry, indication of interest or request for non-public information (other
than an inquiry, indication of interest or request for information made or submitted by Parent, Merger Subs, Parent’s Affiliates
or the Parent Representatives) that could reasonably be expected to lead to an Acquisition Proposal.
Acquisition Proposal.
“Acquisition Proposal” shall mean any proposal or offer (whether in writing or otherwise) from any Person, other than
Parent and its Subsidiaries, relating to any (i) direct or indirect acquisition of assets of the Company or any of its Subsidiaries
(including securities of the Subsidiaries of the Company) equal to more than 15% of the Company’s consolidated assets or
to which more than 15% of the Company’s revenues or earnings on a consolidated basis are attributable, (ii) direct or indirect
acquisition (whether by merger, consolidation or otherwise) of more than 15% of any class of equity securities of the Company
or any of its Subsidiaries or (iii) tender offer or exchange offer that if consummated would result in any Person beneficially
owning more than 15% of any class of equity securities of the Company or any of its Subsidiaries or of any resulting parent company
of the Company, other than the Transactions.
Affiliate. “Affiliate”
shall means (a) in the case of an individual, the members of the immediate family (including parents, siblings and children) of
(i) the individual, (ii) the individual’s spouse and (iii) any Business Entity that directly or indirectly, through one
or more intermediaries, controls, or is controlled by, or is under common control with, any of the foregoing individuals, or (b)
in the case of a Business Entity, another Business Entity or a Person that directly or indirectly, through one or more intermediaries,
controls, or is controlled by, or is under common control with, such Business Entity.
After Consultation.
“After Consultation” by a Person means after consultation with such Person’s outside legal counsel and, other
than with respect to determinations with respect to the fiduciary duties of such Person’s board of directors, such Person’s
financial advisor of nationally recognized reputation.
Agreement. “Agreement”
shall mean this Agreement and Plan of Merger and Reorganization, as it may be amended from time to time.
Antitrust Law. “Antitrust
Law” shall mean, individually and collectively, the HSR Act, the United States Sherman Act, as amended, the United States
Clayton Act, as amended, the United States Federal Trade Commission Act, as amended, and any other applicable United States federal
or state, or foreign, statutes, rules, regulations, orders or decrees that are designed to prohibit, restrict or regulate actions
having the purpose or effect of monopolization or restraint of trade.
Anti-Corruption Law.
“Anti-Corruption Law” shall mean the Foreign Corrupt Practices Act of 1977, as amended, the U.K. Bribery Act of 2010,
and all other applicable anti-bribery or anti-corruption Law.
Business Day. “Business
Day” shall mean a day other than Saturday, Sunday or other day on which commercial banks in New York, New York or
San Francisco, California are authorized or required by Law to be closed.
Business Entity.
“Business Entity” shall mean any corporation (including any non-profit corporation), general partnership, limited
partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization, entity or group (as defined in Section 13(d)(3) of
the Exchange Act).
Cash Consideration Percentage.
“Cash Consideration Percentage” shall mean the quotient obtained by dividing (a) the Per Share Cash Consideration
by (b) the Cash Value of the Merger Consideration.
Cash Value of the Merger
Consideration. “Cash Value of the Merger Consideration” shall mean the sum of (a) the Per Share Cash Consideration
and (b) the product of (i) the Per Share Stock Consideration multiplied by (ii) Parent Stock Consideration Value.
COBRA. “COBRA”
shall mean the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended.
Code. “Code”
shall mean the United States Internal Revenue Code of 1986, as amended.
Company Benefit Plan.
“Company Benefit Plan” shall mean each “employee benefit plan” as defined in ERISA (whether or not
subject to ERISA), and any other plan, policy, program, practice, agreement, understanding or arrangement (whether written or
oral, qualified or nonqualified, funded or unfunded, foreign or domestic, currently effective or terminated) providing compensation
or other benefits to any current or former director, officer, employee, consultant or independent contractor (or to any spouse,
dependent or beneficiary thereof) of the Company, a Company Subsidiary or any ERISA Affiliate, which are now maintained, sponsored
or contributed to by the Company, a Company Subsidiary or any ERISA Affiliate, or under which the Company, a Company Subsidiary
or any ERISA Affiliate has any Liability or obligations (contingent or otherwise), including all incentive, bonus, pension, profit
sharing, consulting, employment, retirement, deferred compensation, severance, vacation, paid time off,
holiday, cafeteria, medical,
disability, death benefit, workers’ compensation, life or other insurance, fringe benefit, change in control, stock purchase,
stock option, stock appreciation, phantom stock, restricted stock or other stock-based compensation plans, policies, programs,
practices, agreements or arrangements (except with respect to any offer letters, employment agreements or consulting agreements
that are terminable for convenience without notice or Liability).
Company Change in Control
Plan. “Company Change in Control Plan” shall mean the Company Change of Control Plan, effective as of June 2,
2015.
Company Common Stock.
“Company Common Stock” shall mean the common stock, $0.001 par value per share, of the Company.
Company Equity Plans.
“Company Equity Plans” shall mean: (a) the Company’s 2005 Equity Incentive Plan and (b) the Company’s
2015 Equity Incentive Plan.
Company Material Adverse
Effect. “Company Material Adverse Effect” shall mean any Effect that (i) is, or would reasonably be expected to
be, individually or in the aggregate with all other Effects, materially adverse to the business, properties, financial condition,
assets and Liabilities, operations or results of operations of the Company and its Subsidiaries, taken as a whole, or (ii) would
or would reasonably be expected to, prevent, materially delay or materially impair the ability of the Company to consummate the
Merger or to perform any of its material obligations under this Agreement; provided, however, that, in the case of clause
(i), none of the following Effects shall constitute nor shall be taken into account in determining whether there is a Company
Material Adverse Effect: (a) changes affecting the economies or general business, economic or regulatory conditions of or financial,
credit or capital market conditions anywhere in the world in which the Company and its Subsidiaries operate, to the extent such
changes do not adversely affect the Company and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative
to other similarly situated participants in the industry in which the Company and its Subsidiaries operate; (b) changes in the
trading volume or trading price of the Company Common Stock in and of itself (provided that the facts and circumstances
giving rise to such changes in such volume or price may be deemed to constitute, and may be taken into account in determining
whether there is a Company Material Adverse Effect), (c) changes in the industry in which the Company and its Subsidiaries operate,
to the extent such changes do not adversely affect the Company and its Subsidiaries, taken as a whole, in a materially disproportionate
manner relative to other similarly situated participants in the industry in which the Company and its Subsidiaries operate, (d)
national or international political conditions, acts of war (whether or not declared), the commencement, continuation or escalation
of a war, acts of armed hostility, sabotage or terrorism or other international or national calamity or any material worsening
of such conditions threatened or existing as of the Agreement Date, (e) changes in Law or GAAP (or in the interpretation thereof),
(f) any failure by the Company to meet any published analyst projections, estimates or expectations of the Company’s past
or projected revenue, earnings or other financial performance or results of operations for any period, in and of itself, and any
resulting analyst downgrade of the Company’s securities, or any failure by the Company to meet its internal budgets, plans
or forecasts of its revenues, earnings or other financial performance or results of operations, in and of itself (provided
that the facts and circumstances giving rise to such failures may be deemed to constitute, and may be taken into
account in determining whether
there is a Company Material Adverse Effect), (g) any legal or related Proceedings made or brought by any of the current or former
stockholders of the Company (on their own behalf or on behalf of the Company) against the Company or the Company Board, relating
to, in connection with, or arising out of the Merger or the other Transactions, including the Joint Proxy Statement/Prospectus,
(h) any Effects to the extent attributable to the execution, announcement or pendency of this Agreement or the anticipated consummation
of the Merger (including the identity of Parent as the acquirer of the Company), or any leaks or rumors related thereto, including
the impact thereof on relationships, contractual or otherwise, with officers, employees, customers, suppliers, distributors, vendors,
licensors, licensees, lenders, investors, subcontractors or partners, (i) fires, epidemics, quarantine restrictions, earthquakes,
hurricanes, tornadoes or other natural disasters, and (j) any Effects resulting from or arising out of (1) the failure by the
Company or any of its Subsidiaries to take any action prohibited by this Agreement or (2) any actions taken by the Company or
any of its Subsidiaries as required by this Agreement or with the consent of Parent or Merger Subs.
Company Options. “Company
Options” shall mean options to purchase shares of Company Common Stock from the Company (whether granted by the Company
pursuant to the Company Equity Plans, assumed by the Company or otherwise).
Company Performance
RSU. “Company Performance RSU” shall mean a restricted stock unit issued with performance-based metrics, terms
or conditions under any of the Company Equity Plans.
Company Restricted Stock.
“Company Restricted Stock” shall mean any shares of Company Common Stock that as of immediately prior to the Effective
Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted
stock purchase agreement, performance based restricted stock purchase agreement, or other Contract with the Company.
Company RSU. “Company
RSU” shall mean a restricted stock unit issued under any of the Company Equity Plans.
Company Stockholder.
“Company Stockholder” shall mean a holder of Company Common Stock.
Company Subsidiary.
“Company Subsidiary” shall mean a Subsidiary of the Company, whether direct or indirect, other than the Excluded Subsidiary, and Company Subsidiaries shall mean Subsidiaries of the Company,
other than the Excluded Subsidiary.
Confidentiality Agreement.
“Confidentiality Agreement” shall mean that certain Mutual Nondisclosure Agreement, dated March 9, 2015, between
the Company and Parent.
Consent. “Consent”
shall mean any approval, consent, ratification, permission, waiver, authorization (including any Governmental Authorization),
or the expiration or termination of any statutory waiting periods.
Contract. “Contract”
shall mean any legally binding written agreement, contract, subcontract, lease, understanding, arrangement, instrument, note,
option, warranty, purchase
order, license, sublicense,
insurance policy or commitment or undertaking of any nature that is currently effective.
Defined Benefit Plan.
“Defined Benefit Plan” shall mean any “employee pension benefit plan” (as defined in Section 3(2)
of ERISA) that is subject to Title IV of ERISA, Section 302 of ERISA and/or Section 412 of the Code.
DGCL. “DGCL”
shall mean the Delaware General Corporation Law.
DLLCA. “DLLCA”
shall mean the Delaware Limited Liability Company Act.
DOL. “DOL”
shall mean the United States Department of Labor.
Effect. “Effect”
shall mean any change, event, development, occurrence, state of facts, circumstance or effect.
Entity. “Entity”
shall mean any corporation (including any non-profit corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, company (including any company limited by shares, limited liability company or joint
stock company), firm, society or other enterprise, association, organization or entity.
Environmental Claim.
“Environmental Claim” shall mean any written claim, Proceeding, complaint, or notice of violation alleging violation
of, noncompliance with or Liability under or with respect to, any Environmental Laws.
Environmental Laws.
“Environmental Laws” shall mean any applicable foreign, federal, state or local Laws, statutes, regulations, codes,
ordinances, permits, decrees, orders or common Law relating to, or imposing standards regarding the protection or cleanup of the
environment, any Hazardous Materials Activity, the preservation or protection of waterways, groundwater, drinking water, air,
wildlife, plants or other natural resources, or the exposure of any individual to Hazardous Materials, including without limitation
protection of health and safety of employees. Environmental Laws shall include, without limitation, the following United States
statutes: the Federal Insecticide, Fungicide Rodenticide Act, Resource Conservation & Recovery Act, Clean Water Act, Safe
Drinking Water Act, Atomic Energy Act, Occupational Safety and Health Act, Toxic Substance Control Act, Clean Air Act, Comprehensive
Environmental Response, Compensation and Liability Act, Emergency Planning and Community Right to Know Act, Hazardous Materials
Transportation Act and all analogous or related foreign, federal state or local Law, each as amended.
ERISA. “ERISA”
shall mean the Employee Retirement Income Security Act of 1974, as amended.
ERISA Affiliate.
“ERISA Affiliate” shall mean any Person, trade or business which is considered a single employer with the Company
or any Company Subsidiary under Section 4001 of ERISA or Section 414 of the Code.
Exchange Act. “Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended.
Exchange Ratio.
“Exchange Ratio” shall mean the sum of (a) the Per Share Stock Consideration plus (b) the quotient obtained by dividing
(i) the Per Share Cash Consideration by (ii) the Parent Stock Transaction Value, as such resulting amount may be adjusted in accordance
with Section 1.5(b).
Excluded Subsidiary.
“Excluded Subsidiary” shall mean Yellow Chips Holdings BV.
Financing Source. “Financing
Source” shall mean any agents, arrangers, lenders and other Persons that have committed to provide or otherwise entered
into agreements in connection with the Financing in connection with the transactions contemplated hereby (including, with respect
to the Financing, any lead arranger, any arranger or any lender) and any joinder agreements, credit agreements or other definitive
documentation relating thereto, together with their respective Affiliates and their and their respective Affiliates’ officers,
directors, partners, members, employees, controlling persons, agents, trustees, administrators, managers, advisors and representatives
and their respective successors and assigns.
Financing Termination Fee. “Financing Termination Fee”
shall mean $90.0 million in cash.
Form S-4 Registration
Statement. “Form S-4 Registration Statement” shall mean the registration statement on Form S-4 to be filed with
the SEC by Parent in connection with the issuance of Parent Common Stock in the Merger, as said registration statement may be
amended prior to the time it is declared effective by the SEC.
GAAP. “GAAP”
shall mean generally accepted accounting principles in the United States.
Governmental Authority.
“Governmental Authority” shall mean any United States, foreign, federal, state, provincial, municipal or local
government, government agency, court of competent jurisdiction, administrative agency or commission or other governmental or regulatory
authority or instrumentality.
Governmental Authorization.
“Governmental Authorization” shall mean any: (a) permit, license, certificate, franchise, permission, variance, clearance,
registration, qualification or authorization issued, granted, given or otherwise made available by or under the authority of any
Governmental Authority pursuant to any Law.
Governmental Consent.
“Governmental Consent” shall mean any license, certificate, permit, approval, clearance, expiration, consent,
waiver or termination of applicable waiting periods, authorizations, qualifications and orders of any Governmental Authority.
Governmental Official.
“Government Official” shall mean any official, officer, employee, or representative of, or any Person acting in
an official capacity for or on behalf of, any Governmental Authority, and includes any official or employee of any directly or
indirectly government-owned or -controlled entity, and any officer or employee of a public international organization, as well
as any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality,
or for or on behalf of any such public international organization.
Hazardous Materials.
“Hazardous Materials” shall mean any infectious, carcinogenic, radioactive, toxic or hazardous chemical or chemical
compound, or any pollutant, contaminant or
hazardous substance, material
or waste, in each case, whether solid, liquid or gas, including, without limitation, petroleum, petroleum products, by products
or derivatives, asbestos or asbestos-containing material, mold or mycotoxin, polychlorinated biphenyls, radioactive materials
and any other substance, material or waste that is subject to regulation, control or remediation under any Environmental Law.
Hazardous Materials
Activity. “Hazardous Materials Activity” shall mean the transportation, transfer, recycling, reclamation, storage,
use, management, disposal, arranging for disposal, treatment, manufacture, removal, remediation, Release, exposure of others to,
sale, or distribution of any Hazardous Materials or any product or waste containing a Hazardous Material, or product manufactured
with ozone depleting substances, including, without limitation, any required labeling, payment of waste fees or charges (including
so called eWaste fees) and compliance with any product take back or product content requirements.
HSR Act. “HSR
Act” shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
Indebtedness. “Indebtedness”
shall mean (with respect to a Person and without duplication) (a) indebtedness of a Person for borrowed money, whether current
or funded, secured or unsecured, including that evidenced by notes, bonds, debentures or other similar instruments (and including
all outstanding principal, prepayment premiums, if any, and accrued interest, fees and expenses related thereto), (b) any amounts
owed by such Person with respect to drawn letters of credit or performance bonds, (c) any cash overdrafts of such Person, (d)
all obligations of such Person issued or assumed as the deferred purchase price of property (including any potential future earn-out,
purchase price adjustment, release of “holdback” or similar payment, but excluding obligations of such Person incurred
in the ordinary course of business consistent with past practice), (e) all lease obligations of such Person capitalized on the
books and records of such Person, (f) all Indebtedness of others secured by a Lien on property or assets owned or acquired by
such Person, whether or not the Indebtedness secured thereby has been assumed, and (g) any outstanding guarantees and keepwell
arrangements of such Person of the type described in clauses (a) through (f) above.
Information Technology.
“Information Technology” means computers, software, databases, firmware, middleware, servers, workstations, networks,
systems, routers, hubs, switches, data communications lines, and all other information technology equipment and associated documentation.
Intellectual Property
Rights. “Intellectual Property Rights” shall mean the rights associated with the following anywhere in the world:
(a) patents and utility models, and applications therefore (including any continuations, continuations-in-part, divisionals, reissues,
renewals, extensions or modifications for any of the foregoing) (“Patents”), (b) trade secrets and all other
rights in or to confidential business or technical information, including know-how, processes, procedures, formulae, recipes,
technical data, specifications, customer lists, and supplier lists (“Trade Secrets”), (c) copyrights, copyright registrations
and applications therefore, moral rights and all other rights corresponding to the foregoing (“Copyrights”),
(d) uniform resource locators and registered internet domain names (“Internet Properties”), (e) industrial
design rights and any registrations and applications therefore (“Industrial Designs”), (f)
databases and data collections
(including knowledge databases, customer lists and customer databases) under the Laws of any jurisdiction, whether registered
or unregistered, and any applications for registration therefor (“Database Rights”), (g) trademarks and service
marks, whether registered or unregistered, and the goodwill appurtenant to each of the foregoing (“Trademarks”),
and (h) any similar, corresponding or equivalent rights to any of the foregoing. Intellectual Property Rights specifically excludes
contractual rights (including license grants from third parties) and also excludes the tangible embodiment of any of the foregoing
in subsections (a) – (h).
Intentional Breach.
“Intentional Breach” shall mean an act or omission taken with the knowledge that such action or omission constitutes,
or would reasonably be expected to result in, a material breach of this Agreement.
Intervening Event. “Intervening
Event” means a material event, occurrence, fact or change occurring or arising after the Agreement Date that was not known
or reasonably foreseeable to the Company Board as of the Agreement Date, which event, occurrence, fact or change becomes known
to the Company Board prior to the Effective Time, other than (a) changes in the Company Common Stock price, in and of itself (however,
the underlying reasons for such changes may constitute a Intervening Event), (b) the timing of any consents, registrations, approvals,
permits, clearances or authorizations required to be obtained prior to the Effective Time by the Company or Parent or any of their
respective Subsidiaries from any Governmental Authority in connection with this Agreement and the consummation of the Transactions,
(c) any Acquisition Proposal or Acquisition Inquiry, or the consequences thereof or (d) the fact that, in and of itself, the Company
exceeds any internal or published projections, estimates or expectations of the Company’s revenue, earnings or other financial
performance or results of operations for any period, in and of itself (however, the underlying reasons for such events may constitute
a Intervening Event).
IRS. “IRS”
shall mean the United States Internal Revenue Service.
Joint Proxy Statement/Prospectus.
“Joint Proxy Statement/Prospectus” shall mean the joint proxy statement/prospectus to be sent to the Company Stockholders
in connection with the Company Stockholders Meeting and to Parent Stockholders in connection with the Parent Stockholders Meeting.
Knowledge. “Knowledge”
shall mean, with respect to any Entity and with respect to any matter in question, the actual knowledge of the Persons set forth
on Schedule A of the Company Disclosure Schedule and the Parent Disclosure Schedule, respectively, after reasonable inquiry.
Law. “Law”
shall mean any federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution,
ordinance, code, edict, decree, rule, regulation, order, award, ruling or requirement issued, enacted, adopted, promulgated, implemented
or otherwise put into effect by or under the authority of any Governmental Authority (or under the authority of the NASD, NYSE
or NASDAQ).
Liability. “Liability”
shall mean any known or unknown liability, Indebtedness, obligation, responsibility or commitment of any kind, nature or character
(whether accrued,
absolute, contingent, matured,
unmatured or otherwise, and whether or not required to be recorded or reflected on a balance sheet prepared under GAAP).
Liens. “Liens”
shall mean any mortgage, deed of trust, deed to secure debt, easement, lease, sublease, right of way, trust or title retention
agreement, pledge, lien, charge, security interest, option, or any other encumbrance.
NASD. “NASD” shall mean the
National Association of Securities Dealers.
NASDAQ. “NASDAQ” shall mean
The NASDAQ Global Select Market.
NYSE. “NYSE” shall mean The
New York Stock Exchange.
Order. “Order” shall mean
any order, writ, injunction, judgment or decree.
Outside Date. “Outside
Date” shall mean 11:59 p.m. Eastern Time on May 27, 2016, provided, however, that such date may be extended by
Parent or the Company for a period of up to five months, if any of the conditions set forth in Section 5.1(c) or Section
5.1(d) have not been satisfied as of 11:59 p.m. Eastern Time on May 27, 2016 but all other conditions to Closing shall be
satisfied, waived, or capable of being satisfied.
Parent Acquisition Inquiry.
“Parent Acquisition Inquiry” shall mean any inquiry, indication of interest or request for non-public information
that could reasonably be expected to lead to a Parent Acquisition Proposal.
Parent Acquisition Proposal.
“Parent Acquisition Proposal” shall mean any proposal or offer (whether in writing or otherwise) from any Person relating
to any (i) direct or indirect acquisition of assets of Parent or any of its Subsidiaries (including securities of the Subsidiaries
of Parent) equal to more than 50% of Parent’s consolidated assets or to which more than 50% of the Parent’s revenues
or earnings on a consolidated basis are attributable, (ii) direct or indirect acquisition (whether by merger, consolidation or
otherwise) of more than 50% of any class of equity securities of Parent or any of its Subsidiaries or (iii) tender offer or exchange
offer that if consummated would result in any Person beneficially owning more than 50% of any class of equity securities of Parent
or any of its Subsidiaries or of any resulting parent company of Parent.
Parent Common Stock.
“Parent Common Stock” shall mean the common stock, $0.83-1/3 par value per share, of Parent.
Parent Equity Plans.
“Parent Equity Plans” shall mean the Lance, Inc. 2003 Key Employee Stock Plan, as amended, the Lance, Inc. 2007
Key Employee Incentive Plan, as amended effective May 4, 2010, the Snyder’s-Lance, Inc. 2008 Director Stock Plan (as amended
and restated) dated February 8, 2013, the Snyder’s-Lance, Inc. 2014 Director Stock Plan, the Snyder’s-Lance, Inc.
2012 Key Employee Incentive Plan, the Snyder’s-Lance, Inc. 2012 Associate Stock Purchase Plan, the Snyder’s of Hanover,
Inc. Non-Qualified Stock Option Plan, as amended and restated effective January 2, 2005, the Amendment No. 1 to the Snyder’s
of Hanover, Inc. Non-Qualified Stock Option Plan, effective as of December 6, 2010, and the
Snyder’s-Lance, Inc.
Long-Term Performance Incentive Plan for Officers and Key Managers, dated February 7, 2013.
Parent Existing Credit
Agreement. “Parent Existing Credit Agreement” shall mean the Amended and Restated Credit Agreement dated as of
May 30, 2014 among Parent, the lenders party thereto and Bank of America, N.A., as amended, restated, supplemented or otherwise
modified.
Parent Material Adverse
Effect. “Parent Material Adverse Effect” shall mean any Effect that (i) is, or would reasonably be expected to
be, individually or in the aggregate with all other Effects, materially adverse to the business, financial condition, Properties,
assets and Liabilities, or results of operations of Parent and its Subsidiaries, taken as a whole, or (ii) would, or would reasonably
be expected to, prevent, materially delay or materially impair the ability of the Company to consummate the Merger or to perform
any of its material obligations under this Agreement; provided, however, that, in the case of clause (i), none of the following
Effects shall constitute, nor shall be taken into account in determining whether there is a Parent Material Adverse Effect: (a)
changes affecting the economies or general business, economic or regulatory conditions of or financial, credit or capital market
conditions anywhere in the world in which Parent and its Subsidiaries operate, to the extent such changes do not adversely affect
Parent and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other similarly situated participants
in the industries in which Parent and its Subsidiaries operate; (b) changes in the trading volume or trading price of Parent Common
Stock in and of itself (provided that the facts and circumstances giving rise to such changes in such volume or price may
be deemed to constitute, and may be taken into account in determining whether there is a Parent Material Adverse Effect), (c)
changes in the industries in which Parent and its Subsidiaries operate, to the extent such changes do not adversely affect Parent
and its Subsidiaries, taken as a whole, in a materially disproportionate manner relative to other similarly situated participants
in the industries in which Parent and its Subsidiaries operate, (d) national or international political conditions, acts of war
(whether or not declared), the commencement, continuation or escalation of a war, acts of armed hostility, sabotage or terrorism
or other international or national calamity or any material worsening of such conditions threatened or existing as of the Agreement
Date, (e) changes in Law or GAAP (or in the interpretation thereof), (f) any failure by Parent to meet any published analyst projections,
estimates or expectations of the Parent’s past or projected revenue, earnings or other financial performance or results
of operations for any period, in and of itself, and any resulting analyst downgrade of Parent’s securities, or any failure
by Parent to meet its internal budgets, plans or forecasts of its revenues, earnings or other financial performance or results
of operations, in and of itself (provided that the facts and circumstances giving rise to such failures may be deemed to constitute,
and may be taken into account in determining whether there is, a Parent Material Adverse Effect), (g) any legal or related Proceedings
made or brought by any of the current or former stockholders of Parent (on their own behalf or on behalf of Parent) against Parent
or Parent Board, relating to, in connection with, or arising out of the Merger or the other Transactions, including the Form S-4
Registration Statement, and (h) any legal or related Proceedings made or brought by any of the current or former stockholders
of Parent (on their own behalf or on behalf of Parent) against Parent or Parent Board, relating to, in connection with, or arising
out of the Merger or the other Transactions, including the Joint Proxy Statement/Prospectus, (i) any Effects to the extent attributable
to the execution, announcement or
pendency of this Agreement
or the anticipated consummation of the Merger (including the identity of the Company as the target of Parent), or any leaks or
rumors related thereto, including the impact thereof on relationships, contractual or otherwise, with officers, employees, customers,
suppliers, distributors, vendors, licensors, licensees, lenders, investors, subcontractors or partners, (j) fires, epidemics,
quarantine restrictions, earthquakes, hurricanes, tornadoes or other natural disasters or (k) any Effects resulting from or arising
out of (1) the failure by Parent or any of its Subsidiaries to take any action prohibited by this Agreement or (2) any actions
taken by Parent or any of its Subsidiaries as required by this Agreement or with the consent of the Company.
Parent Options. “Parent
Options” shall mean options to purchase shares of Parent Common Stock from Parent.
Parent Restricted Stock.
“Parent Restricted Stock” shall mean any shares of Parent Common Stock that as of immediately prior to the Effective
Time are unvested or are subject to a repurchase option, risk of forfeiture or other condition under any applicable restricted
stock purchase agreement, performance based restricted stock purchase agreement, or other Contract with Parent.
Parent Stockholder.
“Parent Stockholder” shall mean a holder of Parent Common Stock.
Parent Stockholder Approval.
“Parent Stockholder Approval” shall mean the affirmative vote of the holders of a majority of the share of Parent
Common Stock present in person or by proxy at the Parent Stockholder Meeting voting in favor of the issuance of Parent Common
Stock in the Merger.
Parent Stock Consideration
Value. “Parent Stock Consideration Value” shall mean the volume weighted average trading price of a share of Parent
Common Stock as quoted on the NASDAQ for the five consecutive trading days ending with the trading day that is three trading days
prior to the Closing Date.
Parent Stock Transaction
Value. “Parent Stock Transaction Value” shall mean $34.65.
Parent Superior Proposal.
“Parent Superior Proposal” shall means any unsolicited, bona fide written offer or proposal that has not been
withdrawn, to acquire, directly or indirectly, pursuant to a tender offer, exchange offer, merger, consolidation or other business
combination, all or substantially all of the assets of Parent or in excess of 50% of the outstanding voting securities of Parent
and as a result of which the Parent Stockholders immediately preceding such transaction would cease to hold at least 50% of the
equity interests in the surviving or resulting Entity of such transaction or any direct or indirect parent or Subsidiary thereof,
in exchange for consideration consisting exclusively of cash or publicly traded equity securities (or a combination of cash and
publicly traded equity securities), which, in the good faith determination of the Parent Board, is reasonably likely to be consummated
on the terms and conditions contemplated thereby and which the Parent Board shall have determined in good faith After Consultation
is more favorable to the Parent Stockholders (in their capacity as such) from a
financial point of view than
the Merger, taking into consideration, the factors determined by the Parent Board in good faith to be relevant and any proposal
made by the Company pursuant to Section 4.7(d)(ii), and in every case, which transaction would require as a condition to the execution
of the definitive acquisition agreement providing for such transaction, the termination of this Agreement.
Parent Termination Fee.
“Parent Termination Fee” shall mean $100.0 million in cash.
Permitted Liens. “Permitted
Liens” shall mean (a) Liens for Taxes, assessments and other governmental charges not yet due and payable or, if due, either
not delinquent or being contested in good faith, (b) Liens arising by operation of Law in favor of warehousemen, landlords, carriers,
mechanics, materialmen, laborers or suppliers, incurred in the ordinary course of business, (c) protective filings related to
operating leases with third parties entered into in the ordinary course of business, (d) zoning, entitlement, building and land
use regulations, customary covenants, defects of title, easements, rights-of-way, restrictions and other similar charges or encumbrances
or irregularities in title that in each case, individually or in the aggregate, do not materially interfere with or impair the
use or operation thereof in the Business, (e) Liens on real property demised, (f) deposits or pledges made in connection with,
or to secure payment of, workers’ compensation, unemployment insurance, old age pension programs mandated under applicable
Laws or other social security programs, (g) non-exclusive licenses of Intellectual Property Rights, and (h) other Liens arising
in the ordinary course of business that are not incurred in connection with the borrowing of money and that do not materially
interfere with ownership or use of the subject asset.
Person. “Person”
shall mean any individual, Entity or Governmental Authority.
Per Share Stock Consideration
Value. “Per Share Stock Consideration Value” shall mean Per Share Stock Consideration multiplied by the Parent
Stock Consideration Value.
Privacy and Security
Laws. “Privacy and Security Laws” shall mean any Laws regarding collecting, accessing, using, disclosing, electronically
transmitting, securing, sharing, transferring and storing personally identifiable data, including federal, state or foreign Laws
or regulations regarding (i) data privacy and information security, (ii) data breach notification (as applicable), and/or (iii)
trespass, computer crime and other Laws governing unauthorized access to or use of electronic data.
Proceeding. “Proceeding”
shall mean any action, arbitration, proceeding, litigation or suit commenced, brought, conducted, or heard by or before, any Governmental
Authority or arbitrator.
Regulatory Termination
Fee. “Regulatory Termination Fee” shall mean $50.0 million in cash.
Release. “Release”
shall mean any release, spill, discharge, disposal, migration, emission or presence in the environment, as such terms are defined
in any Environmental Law.
RSU. “RSU”
shall mean a restricted stock unit.
SEC. “SEC”
shall mean the United States Securities and Exchange Commission.
Securities Act.
“Securities Act” shall mean the Securities Act of 1933, as amended.
Stock Consideration
Percentage. “Stock Consideration Percentage” shall mean the quotient obtained by dividing (a) the Per Share Stock
Consideration Value by (b) the Cash Value of the Merger Consideration.
Subsidiary. An Entity
shall be deemed to be a “Subsidiary” of another Person if such Person directly or indirectly owns or purports to own,
beneficially or of record: (a) an amount of voting securities of or other interests in such Entity that is sufficient to enable
such Person to elect at least a majority of the members of such Entity’s board of directors or other governing body; or
(b) at least 50% of the outstanding equity, voting or financial interests in such Entity.
Superior Proposal.
“Superior Proposal” shall means any unsolicited, bona fide written offer or proposal that has not been withdrawn,
to acquire, directly or indirectly, pursuant to a tender offer, exchange offer, merger, consolidation or other business combination,
all or substantially all of the assets of the Company or in excess of 50% of the outstanding voting securities of the Company
and as a result of which the Company Stockholders immediately preceding such transaction would cease to hold at least 50% of the
equity interests in the surviving or resulting Entity of such transaction or any direct or indirect parent or Subsidiary thereof,
in exchange for consideration consisting exclusively of cash or publicly traded equity securities (or a combination of cash and
publicly traded equity securities), which, in the good faith determination of the Company Board, is reasonably likely to be consummated
on the terms and conditions contemplated thereby and which the Company Board shall have determined in good faith After Consultation
is more favorable to the Company Stockholders (in their capacity as such) from a financial point of view than the Merger, taking
into consideration, the factors determined by the Company Board in good faith to be relevant and any proposal made by Parent pursuant
to Section 4.6(d)(ii).
Tax. “Tax”
shall mean any and all taxes, levies, duties, tariffs, imposts, assessments and other charges in the nature of a tax (together
with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental
Authority, including income, franchise, windfall or other profits, gross receipts, property, sales, use, net worth, capital stock,
payroll, employment, social security, workers’ compensation, unemployment compensation, excise, withholding, estimated,
gross margins, ad valorem, stamp, transfer, value-added, and gains tax.
Tax Return. “Tax
Return” shall mean any report, return (including information return), claim for refund, election, estimated tax filing or
declaration required to be supplied to any Governmental Authority with respect to Taxes, including any schedule or attachment
thereto, and including any amendments thereof.
Termination Fee.
“Termination Fee” shall mean $54.0 million in cash.
Uncured Inaccuracy.
“Uncured Inaccuracy” with respect to a representation or warranty of a Party to this Agreement as of a particular
date shall be deemed to exist only if such representation or warranty shall be inaccurate as of such date as if such representation
or
warranty were made as of such
date, and the inaccuracy in such representation or warranty shall not have been cured since such date; provided, however,
that if such representation or warranty by its terms speaks as of the Agreement Date or as of another particular date, then there
shall not be deemed to be an Uncured Inaccuracy in such representation or warranty unless such representation or warranty shall
have been inaccurate as of the Agreement Date or such other particular date, respectively, and the inaccuracy in such representation
or warranty shall not have been cured since such date.
Index
of Defined Terms
| 401(k) Plan |
Section 4.12(e) |
| Agreement |
Preamble |
| Agreement Date |
Preamble |
| Alternative Company Acquisition Agreement |
Section 4.6(d)(i) |
| Alternative Parent Acquisition Agreement |
Section 4.7(d)(i) |
| Board of Directors |
Recitals |
| Book-Entry Shares |
Section 1.8(b) |
| Capitalization Date |
Section 2.2(a) |
| Change of Company Board Recommendation |
Section 4.6(a)(vi) |
| Change of Parent Board Recommendation |
Section 4.7(a)(vi) |
| Closing |
Section 1.3 |
| Closing Date |
Section 1.3 |
| Company |
Preamble |
| Company Board |
Recitals |
| Company Board Recommendation |
Recitals |
| Company Bylaws |
Section 2.1(b) |
| Company Certificate |
Section 2.1(b) |
| Company Disclosure Schedule |
Article 2 |
| Company Employees |
Section 4.12(a) |
| Company Financial Advisor |
Section 2.20 |
| Company Financial Statements |
Section 2.8(a) |
| Company Intellectual Property Rights |
Section 2.13(a) |
| Company Intervening Event Notice Period |
Section 4.6(e)(i) |
| Company Material Contract |
Section 2.11(a) |
| Company Registered Intellectual Property |
Section 2.13(a) |
| Company Representatives |
Section 4.3(a) |
| Company SEC Documents |
Section 2.6(a) |
| Company Stock Certificate |
Section 1.7 |
| Company Stockholder Approval |
Section 2.3(a) |
| Company Stockholder Voting Agreements |
Recitals |
| Company Stockholders Meeting |
Section 4.5(a)(i) |
| Computershare |
Section 1.8(a) |
| Continuing Employee |
Section 4.12(b) |
| D&O Indemnification Agreements |
Section 4.13(a) |
| D&O Runoff Insurance |
Section 4.13(c) |
| Dissenting Shares |
Section 1.6 |
| Effective Time |
Section 1.3 |
| Electronic Delivery |
Section 7.11 |
| Exchange Agent |
Section 1.8(a) |
| Exchange Fund |
Section 1.8(a) |
| Fee Letters |
Section 3.15(a) |
| FCPA |
Section 2.5(b) |
| Final Surviving Company |
Section 1.1(b) |
| Financing |
Section 3.15(a) |
| Financing Commitments |
Section 3.15(a) |
| First Certificate of Merger |
Section 1.3 |
| First Merger |
Recitals |
| First Step Surviving Corporation |
Section 1.1(a) |
| Fundamental Representations |
Section 5.2(a)(ii) |
| Indemnified Persons |
Section 4.13(a) |
| Insurance Policies |
Section 2.22 |
| Lenders |
Section 3.15(a) |
| Maximum Amount |
Section 4.13(c) |
| Merger |
Recitals |
| Merger Consideration |
Section 1.5(a)(iii) |
| Merger Sub |
Preamble |
| Merger Sub II |
Preamble |
| Merger Subs |
Preamble |
| New Plans |
Section 4.12(a) |
| Non-Continuing Employee |
Section 4.12(c) |
| Parent |
Preamble |
| Parent Board |
Recitals |
| Parent Board Recommendation |
Section 4.5(b)(ii) |
| Parent Capitalization Date |
Section 3.2(a) |
| Parent Disclosure Schedule |
Article 3 |
| Parent Financial Advisor |
Section 3.21 |
| Parent Financial Statements |
Section 3.8(a) |
| Parent Fundamental Representations |
Section 5.3(a)(ii) |
| Parent Intellectual Property Rights |
Section 3.12(a) |
| Parent Material Contract |
Section 3.10(a) |
| Parent Preferred Stock |
Section 3.2(a) |
| Parent Representatives |
Section 4.3(a) |
| Parent SEC Documents |
Section 3.6(a) |
| Parent Stockholder Voting Agreements |
Recitals |
| Parent Stockholders Meeting |
Section 4.5(b)(i) |
| Parent Superior Proposal Notice Period |
Section 4.7(d)(i) |
| Parent Welfare Plan |
Section 4.12(a) |
| Parties |
Preamble |
| Per Share Cash Consideration |
Section 1.5(a)(iii) |
| Per Share Stock Consideration |
Section 1.5(a)(iii) |
| Pre-Closing Period |
Section 4.1 |
| Preferred Stock |
Section 2.2(a) |
| Required Amount |
Section 3.15(d) |
| Sarbanes-Oxley Act |
Section 2.6(a) |
| Second Certificate of Merger |
Section 1.3 |
| Second Effective Time |
Section 1.3 |
| Second Merger |
Recitals |
| Section 16 |
Section 4.16 |
| Superior Proposal Notice Period |
Section 4.6(d)(i) |
| Takeover Law |
Section 2.3(c) |
| Transactions |
Recitals |
| Transaction Severance Benefits |
Section 4.12(c) |
Exhibit 2.2
FORM OF
PARENT STOCKHOLDER VOTING AGREEMENT
This
Parent Stockholder Voting Agreement (this “Agreement”), dated as of October [27], 2015, by and between
Diamond Foods, Inc., a Delaware corporation (the “Company”) and the stockholders listed on Exhibit A attached
hereto (each, a “Stockholder”). Capitalized terms used herein without definition shall have the respective
meanings specified in the Merger Agreement (as defined below).
RECITALS
A. Concurrently with
the execution and delivery of this Agreement, Snyder’s-Lance, Inc., a Delaware corporation (the “Parent”),
Shark Acquisition Sub I, Inc., a Delaware corporation and a wholly-owned subsidiary of Parent (“Merger Sub”),
Shark Acquisition Sub II, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Parent (“Merger
Sub II” and, together with Merger Sub, the “Merger Subs”) and the Company, are entering into an Agreement
and Plan of Merger and Reorganization (as the same may be amended from time to time, the “Merger Agreement”),
pursuant to which, among other things, Merger Sub will be merged with and into the Company, with the Company continuing as the
surviving corporation and a wholly-owned subsidiary of Parent (the “Merger”);
B. As of the date
hereof, Stockholder is the record or beneficial owner of the number of shares of Parent Common Stock (the “Shares”)
set forth opposite his, her or its name on Exhibit A; and
C. In order to induce
the Company to enter into the Merger Agreement, Stockholder has agreed to enter into this Agreement.
In consideration of the premises
and of the mutual agreements and covenants set forth herein and in the Merger Agreement and for other good and valuable consideration,
the receipt and adequacy of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:
ARTICLE
I
DEFINITIONS
1.1 Defined
Terms. The following capitalized terms, as used in this Agreement, shall have the meanings set forth below. Capitalized terms
used but not otherwise defined herein shall have the meanings ascribed to them in the Merger Agreement.
(a) “Beneficially
Own”, “Beneficial Ownership” or “beneficial owner” with respect to any Shares
means having “beneficial ownership” of such securities (as determined pursuant to Rule 13d-3 under the Securities
Exchange Act of 1934, as amended (the “Exchange Act”)), including pursuant to any Contract, whether or not
in writing. Without duplicative counting of the same securities by the same holder, securities Beneficially Owned by a Person
shall include securities Beneficially Owned by all other Persons who are Affiliates of such
Person and who together with
such Person would constitute a “group” within the meaning of Section 13(d)(3) of the Exchange Act.
(b) “Stockholder
Shares” means all Shares held of record or Beneficially Owned by Stockholder, whether currently issued and outstanding
or hereinafter acquired, including, without limitation, including by exercising any Parent Options[, the settlement of any Parent
RSUs or Parent Performance RSUs, or the lapsing of any vesting restrictions on any Parent Restricted Stock,] held of record or
Beneficially Owned by Stockholder, and in each case with respect to which Stockholder has both the power to vote and dispose of
such Shares.
ARTICLE
II
TRANSFER AND VOTING OF SHARES
2.1 No
Transfer of Shares. Unless the Termination Date (as defined below) shall have occurred, Stockholder shall not, directly or
indirectly, (a) sell, pledge, encumber, assign, transfer or otherwise dispose of any or all of its Stockholder Shares or any interest
in its Stockholder Shares, (b) deposit its Stockholder Shares or any interest in its Stockholder Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any of its Stockholder Shares or grant any proxy or power of attorney
with respect thereto (other than as contemplated herein) or (c) enter into any Contract with respect to the direct or indirect
acquisition or sale, pledge, encumbrance, assignment, transfer or other disposition (whether by actual disposition or effective
economic disposition due to hedging, cash settlement or otherwise) of any of its Stockholder Shares (any such action in clause
(a), (b) or (c) above, a “transfer”). Notwithstanding anything to the contrary in the foregoing sentence, this
Section 2.1 shall not prohibit a transfer of Stockholder Shares by Stockholder (i) if such Stockholder is an individual,
(A) to any member of Stockholder’s immediate family or to a trust solely for the benefit of Stockholder or any member of
Stockholder’s immediate family, (B) upon the death of Stockholder to Stockholder’s heirs or (C) to a charitable entity
qualified as a 501(c)(3) organization under the Code or (ii) if Stockholder is not a natural person, to an Affiliate controlled
by Stockholder or under common control with Stockholder, as applicable; provided, however, that in each case a transfer
shall be permitted only if, and as a condition precedent to the effectiveness of such transfer, the transferee agrees in a writing,
reasonably satisfactory in form and substance to the Company, to be bound by all of the terms of this Agreement as though such
transferee were the “Stockholder” hereunder.
2.2 Vote
in Favor of the Merger and Related Matters. Stockholder, solely and exclusively in Stockholder’s capacity as a stockholder
of Parent (and not, if applicable, in Stockholder’s capacity as an officer or director of Parent or any of its Subsidiaries),
agrees that, from and after the date hereof until the Termination Date (as defined below), at any meeting of the stockholders
of Parent or any adjournment thereof, or in connection with any action by written consent of the stockholders of Parent, Stockholder
shall:
(a) appear
at each such meeting or otherwise cause all of its Stockholder Shares to be counted as present thereat for purposes of calculating
a quorum; and
(b) vote
(or cause to be voted), in person or by proxy, or deliver a written consent (or cause a consent to be delivered) covering, all
of its Stockholder Shares: (i) in favor of the issuance of Parent Common Stock in the Merger, (ii) in favor of any other matter
reasonably relating to the consummation or facilitation of, or otherwise in furtherance of, the Merger and the other Transactions,
(iii) against any Parent Acquisition Proposal and (iv) against other action, proposal, agreement, transaction or arrangement submitted
for approval of Parent’s stockholders that is intended, or would reasonably be expected, to impede, interfere with, materially
delay, materially postpone or adversely affect the consummation of the Merger, including, without limitation, any extraordinary
transaction, merger, consolidation, purchase of assets, recapitalization or other business combination involving Parent or any
other action, agreement or arrangement that would reasonably be expected to result in any of the conditions to Parent’s
obligations under the Merger Agreement not being fulfilled or satisfied prior to the Effective Time. Each Stockholder shall retain
at all times the right to vote such Stockholder’s Shares in such Stockholder’s sole discretion and without any other
limitation on all matters not set forth in this Section 2.2(b).
2.3 Termination.
This Agreement and the obligations of the parties hereunder shall automatically terminate upon the earliest to occur of (a) such
date and time as the Merger Agreement shall have been validly terminated pursuant to its terms and (b) the Effective Time (such
earliest date, the “Termination Date”); provided, however, that the provisions of Article VI shall survive
any termination of this Agreement.
ARTICLE
III
REPRESENTATIONS AND WARRANTIES
OF THE STOCKHOLDERS
Stockholder hereby represents
and warrants to the Company, as of the date hereof, as follows:
3.1 Authorization;
Binding Agreement. Stockholder has all necessary power and authority to execute and deliver this Agreement and to perform
his, her or its obligations hereunder and to consummate the transactions contemplated hereby. The execution and delivery of this
Agreement by Stockholder and the consummation of the transactions contemplated hereby have been duly and validly authorized by
all necessary action, and no other proceedings on the part of Stockholder are necessary to adopt or authorize this Agreement or
to consummate the transactions contemplated hereby. This Agreement has been validly executed and delivered by Stockholder and,
assuming the due authorization, execution and delivery by the Company, constitutes a legal, valid and binding obligation of Stockholder,
enforceable against Stockholder in accordance with its terms, subject to the effect of any applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and other similar Laws relating to or affecting creditors’ rights generally,
and general equitable principles.
3.2 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement to the Company by Stockholder does not, and the performance of this Agreement will not,
except where it would not
interfere in any material respect
with Stockholder’s ability to perform his, her or its obligations hereunder, (i) conflict with or violate in any material
respect any Law applicable to Stockholder or by which Stockholder is bound or affected, (ii) violate or conflict with the articles
of incorporation or bylaws or other equivalent organizational documents of Stockholder, if applicable, or (iii) result in or constitute
(with or without notice or lapse of time or both) any material breach of or material default under, or give to another party any
right of termination, amendment, acceleration or cancellation of, or result in the creation of any lien or encumbrance on the
Stockholder pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Stockholder is a party or by which Stockholder or the Stockholder Shares are bound or affected.
There is no beneficiary or holder of a voting trust certificate or other interest of any trust of which Stockholder is a trustee
whose consent is required for the execution and delivery of this Agreement or the consummation by Stockholder of the transactions
contemplated by this Agreement.
(b) Except
for the compliance with any applicable requirements of the Exchange Act, the execution and delivery of this Agreement to the Company
by Stockholder does not, and the performance of this Agreement will not, require any consent, approval, authorization, waiver,
order or permit of, or filing with or notification to, any third party or any Governmental Authority, except where the failure
to obtain such consents, approvals, authorizations, waivers, orders or permits, or to make such filings or notifications, would
not materially interfere with such Stockholder’s ability to perform his, her or its obligations hereunder.
3.3 Litigation.
There is no Proceeding pending or, to the knowledge of Stockholder, threatened, against Stockholder or any of Stockholder’s
Affiliates that would interfere in any material respect with such Stockholder’s ability to perform his, her or its obligations
hereunder. There is no order against Stockholder or any of Stockholder’s Affiliates that would prevent, enjoin, alter or
delay any of the transactions contemplated by this Agreement, or that would otherwise interfere in any material respect with such
Stockholder’s ability to perform its obligations hereunder.
3.4 Title
to Shares. Stockholder is the record or beneficial owner of the Shares set forth opposite its name on Exhibit A. Stockholder
has good title to his, her or its Stockholder Shares free and clear of all Liens other than pursuant to this Agreement and applicable
securities Laws. As of the date of this Agreement, the Stockholder Shares constitute all of the Shares Beneficially Owned or owned
of record by Stockholder. Except as otherwise set forth in this Agreement, Stockholder has, and will have at all times until the
Effective Time, sole voting power (including the right to control such vote as contemplated herein), sole power of disposition
and sole power to agree to all of the matters set forth in this Agreement, in each case with respect to all of its Stockholder
Shares.
3.5 Acknowledgement
of the Merger Agreement. Stockholder hereby acknowledges that Stockholder has received a draft of the Merger Agreement presented
to Stockholder as in substantially final form and has reviewed and understood the terms thereof.
ARTICLE
IV
GRANT OF PROXY; APPOINTMENT OF PROXY
4.1 Grant
of Proxy. In furtherance of the transactions contemplated hereby and by the Merger Agreement, and in order to secure the performance
by Stockholder of Stockholder’s duties under this Agreement, Stockholder, concurrently with the execution of this Agreement,
shall execute or cause to be executed, in accordance with the provisions of applicable North Carolina law, and deliver to the
Company an irrevocable proxy, substantially in the form of Exhibit B hereto, and irrevocably appoint the Company or its
designees, with full power of substitution, Stockholder’s attorney and proxy to vote, or, if applicable, to give consent
with respect to, all of the Shares held of record by Stockholder as of the record date of such vote or consent in respect of any
of the matters set forth in, and in accordance with and subject to the provisions of Section 2.2(b) (the “Proxy”).
4.2 Reliance.
Stockholder understands and acknowledges that the Company is entering into the Merger Agreement in reliance upon such Proxy. Stockholder
hereby affirms that the Proxy set forth in this Article 4 is given to secure the performance of the duties of Stockholder under
this Agreement. Stockholder hereby affirms that the irrevocable proxy is coupled with an interest and may not be revoked except
in accordance with its terms.
4.3 Revocation
of Prior Proxies. Stockholder hereby revokes any and all prior proxies or powers of attorney given by Stockholder, and agrees
not to grant any subsequent proxies or powers of attorney, as to the voting of the Shares with respect to the subject matter of
this Agreement and the Merger Agreement.
ARTICLE
V
COVENANTS OF THE STOCKHOLDERS
5.1 Further
Assurances. From time to time and without additional consideration, prior to the Termination Date, Stockholder shall execute
and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and
other instruments, and shall take such further actions, as the Company may reasonably request for the purpose of carrying out
and furthering the intent of this Agreement.
5.2 No
Inconsistent Agreements. Except for this Agreement,
until the Termination Date, Stockholder shall not: (a) enter into any voting agreement, voting trust or similar agreement with
respect to any of the Stockholder Shares, (b) grant any proxy, consent, power of attorney or other authorization or consent with
respect to any of the Stockholder Shares or (c) knowingly take any action that would constitute a breach hereof, make any representation
or warranty of Stockholder set forth in Article III untrue or incorrect or have the effect of preventing or disabling Stockholder
from performing any of its obligations under this Agreement.
5.3 Public
Announcements. Stockholder further 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 (the “Announcement Release”), this Agreement and the Stockholder’s identity and ownership of
the Stockholder Shares and the nature of the Stockholder’s commitments, arrangements and understandings under this Agreement,
in each case, to the extent the Company or Parent reasonably determines that such information is required to be disclosed by applicable
Law (or in the case of the Announcement Release, to the extent the information contained therein is consistent with other disclosures
being made by the Company and Parent).
5.4 Fiduciary
Duties. Notwithstanding anything in this Agreement to the contrary, Company agrees that: (i) Stockholder makes no agreement
or understanding herein in any capacity other than in Stockholder’s capacity as a record holder and beneficial owner of
the Shares, and not in Stockholder’s capacity as a director, officer or employee of Parent or any of its Subsidiaries and
(ii) nothing herein will be construed to limit or affect any action or inaction by Stockholder or any representative of Stockholder,
as applicable, serving on the board of directors of Parent or any Subsidiary or as an officer or fiduciary of Parent or any Subsidiary
of Parent, acting in such person’s capacity as a director, officer, employee or fiduciary of Parent or any of its Subsidiaries.
ARTICLE
VI
GENERAL PROVISIONS
6.1 Entire
Agreement; Amendments. This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior agreements
and undertakings, both written and oral, between the parties hereto with respect to the subject matter hereof. This Agreement
may not be amended or modified except in an instrument in writing signed by, or on behalf of, the parties hereto.
6.2 Assignment.
No party to this Agreement may assign any of its rights or obligations under this Agreement without the prior written consent
of the other parties hereto. Any assignment contrary to the provisions of this Section 6.2 shall be null and void.
6.3 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. Upon such determination
that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of the parties hereto as closely as possible to the fullest
extent permitted by applicable Law in an acceptable manner.
6.4 Specific
Performance. The Parties hereto agree that irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were otherwise breached and that money damages or other
legal remedies would not be an adequate remedy for any such damage. It is accordingly agreed that prior to the Termination Date,
(a) each Party shall be entitled to an injunction or injunctions to prevent 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 and (b) the Parties shall waive, in any Proceeding
for specific performance, the defense of adequacy of a remedy at Law. Each Party further agrees that no other Party hereto or
any other Person shall be required to obtain, furnish or post any bond or similar instrument in connection with or as a condition
to obtaining any remedy referred to in this Section 6.4, and each Party hereto irrevocably waives any right it may have
to require the obtaining, furnishing or posting of any such bond or similar instrument.
6.5 Governing
Law; Jurisdiction; Jury Trial.
(a) This Agreement and all
claims arising out of this Agreement shall be governed by, and construed in accordance with, the internal Laws of the State of
Delaware (whether arising in contract, tort, equity or otherwise), without regard to any conflicts of law principles that would
result in the application of any Law other than the Law of the State of Delaware.
(b) The Parties hereby irrevocably
and unconditionally submit to the exclusive jurisdiction of the Court of Chancery of the State of Delaware or, if such court shall
not have jurisdiction, any Federal court of the United States of America located within the State of Delaware, solely in respect
of the interpretation and enforcement of the provisions of this Agreement and of the documents referred to in this Agreement,
and in respect of the transactions contemplated hereby and thereby, and, to the fullest extent permitted by Law, hereby waive,
and agree not to assert, as a defense in any action, suit or other Proceeding for the interpretation or enforcement hereof or
thereof, that it is not subject thereto or that such action, suit or other Proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this Agreement or any such document may not be enforced
in or by such courts, and the Parties irrevocably and unconditionally agree that all claims with respect to such action, suit
or other Proceeding shall be heard and determined in such a Delaware State court or, to the extent required or permitted by Law,
Federal court. The Parties hereby consent to and grant any such court jurisdiction over the Person of such Parties and over the
subject matter of such dispute and agree that mailing of process or other papers in connection with any such action, suit or Proceeding
in the manner provided for notices in Section 6.7 or in such other manner as may be permitted by applicable Law, shall
be valid and sufficient service thereof. With respect to any particular action, suit or other Proceeding, venue shall lie solely
in the Court of Chancery of the State of Delaware or such Federal court located within the State of Delaware. The Parties further
agree, to the extent permitted by Law, that final and non-appealable judgment against a Party in any Proceeding contemplated above
shall be conclusive and may be enforced in any other jurisdiction within or outside the United States by suit on the judgment,
a certified or exemplified copy of which shall be conclusive evidence of the fact and amount of such judgment.
(c) EACH OF THE PARTIES
HERETO HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT,
TORT, EQUITY OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
6.6 No
Waiver. No failure or delay by any party hereto in exercising any right, power or privilege hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any
other right, power or privilege. Neither party shall be deemed to have waived any claim available to it arising out of this Agreement,
or any right, power or privilege hereunder, unless the waiver is expressly set forth in writing duly executed and delivered on
behalf of such party. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies
provided by Law.
6.7 Notices.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been
duly given or made as follows: (a) if sent by registered or certified mail in the United States return receipt requested, upon
receipt; (b) if sent designated for overnight delivery by nationally recognized overnight air courier (such as DHL or Federal
Express), upon receipt of proof of delivery; (c) if sent by facsimile transmission or e-mail of a .pdf, .tif, .gif, .jpeg or similar
electronic attachment on a Business Day before 5:00 p.m. in the time zone of the receiving party, when transmitted and receipt
is confirmed; (d) if sent by facsimile transmission or e-mail of a .pdf, .tif, .gif, .jpeg or similar electronic attachment on
a day other than a Business Day or after 5:00 p.m. in the time zone of the receiving party, and receipt is confirmed, on the following
Business Day; and (e) if otherwise actually personally delivered, when delivered, provided that such notices, requests,
demands and other communications are delivered to the address set forth below, or to such other address as any party shall provide
by like notice to the other parties to this Agreement:
| |
If to the Company: |
| |
|
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Diamond Foods, Inc. |
| |
600 Montgomery Street, 13th Floor |
| |
San Francisco, CA 94111 |
| |
Attention: |
Chief Executive Officer |
| |
|
General Counsel |
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Email: |
| |
|
| |
with a copy to (for information purposes
only): |
| |
|
| |
Fenwick & West, LLP |
| |
555 California Street, 12th Floor |
| |
San Francisco, CA 94104 |
| |
Attention: |
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Facsimile: |
| |
Email: |
If to a Stockholder, to the
address or facsimile number set forth on the signature page hereof or, if not set forth thereon, to the address reflected in the
stock books of Parent.
6.8 No
Third-Party Beneficiaries. This Agreement is for the sole benefit of, shall be binding upon, and may be enforced solely by,
the Company and Stockholder and nothing in this Agreement, express or implied, is intended to or shall confer upon any Person
(other than Parent
and Stockholder) any legal or equitable right, benefit
or remedy of any nature whatsoever; provided, that Parent shall be a third party beneficiary of this Agreement and shall
be entitled to enforce any power, right, privilege or remedy of the Company hereunder.
6.9 Headings.
The heading references herein are for convenience of reference only and do not form part of this Agreement, and no construction
or reference shall be derived therefrom.
6.10 Counterparts.
This Agreement may be executed and delivered (including by facsimile transmission or by e-mail of a .pdf, .tif, .jpeg or similar
attachment (“Electronic Delivery”) in two or more counterparts, and by the different Parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be an original but all of which taken together shall
constitute one and the same agreement. Any such counterpart, to the extent delivered using Electronic Delivery shall be treated
in all manner and respects as an original executed counterpart and shall be considered to have the same binding legal effect as
if it were the original signed version thereof delivered in person. No Party hereto shall raise the use of Electronic Delivery
to deliver a signature or the fact that any signature or agreement or instrument was transmitted or communicated through the use
of Electronic Delivery as a defense to the formation of a contract, and each such Party forever waives any such defense, except
to the extent that such defense relates to lack of authenticity.
[Remainder of page left intentionally
blank]
IN WITNESS WHEREOF, the parties hereto have caused
this Agreement to be duly executed as of the date first written above.
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DIAMOND
FOODS, INC. |
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|
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By: |
|
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Name: |
|
| |
Title: |
|
| |
|
|
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STOCKHOLDER |
| |
|
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If other
than a natural person: |
| |
|
|
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[●] |
|
| |
|
|
| |
By: |
|
| |
|
Name: [●] |
| |
|
Title: [●] |
| |
|
Address: [●] |
| |
|
Facsimile: [●] |
| |
|
|
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If a
natural person: |
| |
|
| |
Name: [●] |
| |
Address: |
[●] |
| |
Facsimile: |
[●] |
Signature Page to Parent Stockholder Voting Agreement
Exhibit A
| Stockholder
Name |
Shares
of Parent Common Stock |
| [●] |
[●] |
Exhibit B
IRREVOCABLE PROXY
Capitalized terms used but
not defined herein shall have the meaning ascribed to such terms in the Parent Stockholder Voting Agreement, dated as of October
[__], 2015, by and between the Company and the undersigned stockholder (the “Voting Agreement”). A copy of
the Voting Agreement is attached hereto and is incorporated by reference herein.
This Proxy is given to secure
the performance of the duties of the undersigned Stockholder pursuant to the Voting Agreement and is granted in consideration
of the Company entering into the Merger Agreement.
The undersigned Stockholder
hereby irrevocably appoints the persons as may be designated by the Company after the date hereof, and each of them individually,
the sole and exclusive attorneys, agents and proxies, with full power of substitution in each of them, for the undersigned Stockholder
and in the name, place and stead of the undersigned Stockholder, to vote or, if applicable, to give written consent, with respect
to, all Shares held of record by the undersigned Stockholder and which the undersigned Stockholder is or may be entitled to vote
at any meeting of Parent held after the date hereof, whether annual or special and whether or not an adjourned meeting, or, if
applicable, to give written consent with respect thereto, in accordance with the provisions of Section 2.2(b) of the Voting
Agreement as follows:
(i) in favor of
the issuance of Parent Common Stock in the Merger;
(ii) in favor of
any other matter reasonably relating to the consummation or facilitation of, or otherwise in furtherance of, the Merger and the
other Transactions;
(iii) against any
Parent Acquisition Proposal; and
(iv) against any
other action, proposal, agreement, transaction or arrangement submitted for approval of Parent’s stockholders that is intended,
or would reasonably be expected, to impede, interfere with, delay, postpone or adversely affect the consummation of the Merger,
including, without limitation, any extraordinary transaction, merger, consolidation, sale of assets, recapitalization or other
business combination involving Parent or any other action, agreement or arrangement that would reasonably be expected to result
in any of the conditions to Parent’s obligations under the Merger Agreement not being fulfilled or satisfied.
This Proxy is coupled with
an interest, and, to the fullest extent permitted by law, and subject to the terms hereof, shall be irrevocable and shall be binding
on any successor in interest of the undersigned Stockholder. This Proxy shall not be terminated by operation of law upon the occurrence
of any event, including, without limitation, the death or incapacity of the undersigned Stockholder; provided, however, that this
Proxy shall terminate on the Termination Date.
This Proxy shall operate to
revoke any prior proxy as to the Shares heretofore granted by the undersigned Stockholder with respect to the subject matter of
the Voting Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the parties hereto have caused
this Proxy to be duly executed as of the date first written above.
| |
DIAMOND
FOODS, INC. |
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|
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By: |
|
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Name: |
|
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Title: |
|
| |
|
|
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STOCKHOLDER |
| |
|
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If other
than a natural person: |
| |
|
|
| |
[●] |
|
| |
|
|
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By: |
|
| |
|
Name: [●] |
| |
|
Title: [●] |
| |
|
Address: [●] |
| |
|
Facsimile: [●] |
| |
|
|
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If a
natural person: |
| |
|
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Name: [●] |
| |
Address: |
[●] |
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Facsimile: |
[●] |
Exhibit 3.2
AMENDED AND
RESTATED BYLAWS
OF
DIAMOND FOODS,
INC.
(A DELAWARE
CORPORATION)
(as amended
through October 27, 2015)
TABLE OF CONTENTS
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|
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|
Page |
| ARTICLE I STOCKHOLDERS |
|
4 |
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| Section 1.1 |
|
Annual Meetings |
|
4 |
| Section 1.2 |
|
Special Meetings |
|
4 |
| Section 1.3 |
|
Notice Of Meetings |
|
4 |
| Section 1.4 |
|
Adjournments |
|
4 |
| Section 1.5 |
|
Quorum |
|
4 |
| Section 1.6 |
|
Organization |
|
4 |
| Section 1.7 |
|
Voting; Proxies |
|
5 |
| Section 1.8 |
|
Fixing Date For Determination Of Stockholders Of Record |
|
5 |
| Section 1.9 |
|
List Of Stockholders Entitled To Vote |
|
5 |
| Section 1.10 |
|
Inspectors Of Elections |
|
5 |
| Section 1.11 |
|
Notice Of Stockholder Business; Nominations |
|
6 |
| |
|
|
|
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| ARTICLE II BOARD OF DIRECTORS |
|
8 |
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|
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| Section 2.1 |
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Number; Qualifications |
|
8 |
| Section 2.2 |
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Election; Resignation; Removal; Vacancies |
|
8 |
| Section 2.3 |
|
Regular Meetings |
|
9 |
| Section 2.4 |
|
Special Meetings |
|
9 |
| Section 2.5 |
|
Remote Meetings Permitted |
|
9 |
| Section 2.6 |
|
Quorum; Vote Required For Action |
|
9 |
| Section 2.7 |
|
Organization |
|
9 |
| Section 2.8 |
|
Written Action By Directors |
|
9 |
| Section 2.9 |
|
Powers |
|
9 |
| Section 2.10 |
|
Compensation Of Directors |
|
9 |
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|
|
|
|
| ARTICLE III COMMITTEES |
|
9 |
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|
|
|
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| Section 3.1 |
|
Committees |
|
9 |
| Section 3.2 |
|
Committee Rules |
|
10 |
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|
|
|
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| ARTICLE IV OFFICERS |
|
10 |
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|
|
|
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| Section 4.1 |
|
Generally |
|
10 |
| Section 4.2 |
|
Chief Executive Officer |
|
10 |
| Section 4.3 |
|
Chairperson Of The Board |
|
10 |
| Section 4.4 |
|
President |
|
11 |
| Section 4.5 |
|
Vice President |
|
11 |
| Section 4.6 |
|
Chief Financial Officer |
|
11 |
| Section 4.7 |
|
Treasurer |
|
11 |
| Section 4.8 |
|
Secretary |
|
11 |
| Section 4.9 |
|
Delegation Of Authority |
|
11 |
| Section 4.10 |
|
Removal |
|
11 |
| |
|
|
|
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| ARTICLE V STOCK |
|
11 |
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|
|
|
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| Section 5.1 |
|
Certificates |
|
11 |
| Section 5.2 |
|
Lost, Stolen Or Destroyed Stock Certificates; Issuance Of New Certificates |
|
11 |
| Section 5.3 |
|
Other Regulations |
|
12 |
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|
|
|
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| ARTICLE VI INDEMNIFICATION |
|
12 |
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|
|
|
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| Section 6.1 |
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Indemnification Of Officers And Directors |
|
12 |
| Section 6.2 |
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Advance Of Expenses |
|
12 |
| Section 6.3 |
|
Non-Exclusivity Of Rights |
|
12 |
| Section 6.4 |
|
Indemnification Contracts |
|
12 |
| Section 6.5 |
|
Effect Of Amendment |
|
12 |
| ARTICLE VII NOTICES |
|
13 |
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|
|
|
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| Section 7.1 |
|
Notice |
|
13 |
| Section 7.2 |
|
Waiver Of Notice |
|
13 |
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|
|
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| ARTICLE VIII INTERESTED DIRECTORS |
|
13 |
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|
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| Section 8.1 |
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Interested Directors; Quorum |
|
13 |
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|
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| ARTICLE IX MISCELLANEOUS |
|
14 |
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| Section 9.1 |
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Fiscal Year |
|
14 |
| Section 9.2 |
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Seal |
|
14 |
| Section 9.3 |
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Form Of Records |
|
14 |
| Section 9.4 |
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Reliance Upon Books And Records |
|
14 |
| Section 9.5 |
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Certificate Of Incorporation Governs |
|
14 |
| Section 9.6 |
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Severability |
|
14 |
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|
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| ARTICLE X FORUM FOR ADJUDICATION OF CERTAIN DISPUTES |
|
15 |
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|
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| Section 10.1 |
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Forum For Adjudication of Certain Disputes |
|
15 |
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|
|
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| ARTICLE XI AMENDMENT |
|
15 |
| |
|
|
|
|
Section 10.1 11.1 |
|
Amendments |
|
15 |
AMENDED AND RESTATED
BYLAWS
OF
DIAMOND FOODS, INC.
(a Delaware corporation)
ARTICLE I
STOCKHOLDERS
SECTION 1.1 ANNUAL
MEETINGS. An annual meeting of stockholders shall be held for the election of directors at such date and time as the Board
of Directors shall each year fix. The meeting may be held either at a place, within or without the State of Delaware, or by means
of remote communication as the Board of Directors in its sole discretion may determine. Any other proper business may be transacted
at the annual meeting.
SECTION 1.2 SPECIAL
MEETINGS. Special meetings of stockholders for any purpose or purposes may be called at any time by the Board of Directors,
and shall be called upon the request of the Chairperson of the Board of Directors, the Chief Executive Officer, the President,
or by a majority of the members of the Board of Directors. Special meetings may not be called by any other person or persons.
SECTION 1.3 NOTICE
OF MEETINGS. Notice of all meetings of stockholders shall be given in writing or by electronic transmission in the manner provided
by law (including, without limitation, as set forth in Section 7.1(b) of these Bylaws) stating the date, time and place, if
any, of the meeting and, in the case of a special meeting, the purpose or purposes for which the meeting is called. Unless otherwise
required by applicable law or the Certificate of Incorporation of the Corporation, such notice shall be given not less than ten
(10) nor more than sixty (60) days before the date of the meeting to each stockholder of record entitled to vote at such
meeting.
SECTION 1.4 ADJOURNMENTS. The
chairperson shall have the power to adjourn the meeting to another time, date and place (if any). Any meeting of stockholders may
adjourn from time to time, and notice need not be given of any such adjourned meeting if the time, date and place (if any) thereof
are announced at the meeting at which the adjournment is taken; provided, however, that if the adjournment is for more than thirty
(30) days, or if after the adjournment a new record date is fixed for the adjourned meeting, then a notice of the adjourned
meeting shall be given to each stockholder of record entitled to vote at the meeting. At the adjourned meeting the Corporation
may transact any business that might have been transacted at the original meeting. The Board of Directors may postpone or reschedule
any previously scheduled special or annual meeting of stockholders, in which case notice shall be provided to the stockholders
of the new date, time and place, if any, of the meeting as provided in Section 1.3 above.
SECTION 1.5 QUORUM. At
each meeting of stockholders the holders of a majority of the shares of stock entitled to vote at the meeting, present in person
or represented by proxy, shall constitute a quorum for the transaction of business, unless otherwise required by applicable law.
If a quorum shall fail to attend any meeting, the chairperson of the meeting or the holders of a majority of the shares entitled
to vote who are present, in person or by proxy, at the meeting may adjourn the meeting. Shares of the Corporation’s stock
belonging to the Corporation (or to another corporation, if a majority of the shares entitled to vote in the election of directors
of such other corporation are held, directly or indirectly, by the Corporation) shall neither be entitled to vote nor be counted
for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any other corporation
to vote any shares of the Corporation’s stock held by it in a fiduciary capacity and to count such shares for purposes of
determining a quorum.
SECTION 1.6 ORGANIZATION. Meetings
of stockholders shall be presided over by such person as the Board of Directors may designate, or, in the absence of such a person,
the Chairperson of the Board of Directors, or, in the absence of such person, the President of the Corporation, or, in the absence
of such person, such person as may be chosen by the holders of a majority of the shares entitled to vote who are present, in person
or by proxy, at the meeting. Such person shall be chairperson of the meeting and, subject to Section 1.11 hereof, shall determine
the order of business and the procedure at the meeting, including such regulation of the manner of voting and the
conduct of discussion
as seems to him or her to be in order. The Secretary of the Corporation shall act as secretary of the meeting, but in such person’s
absence the chairperson of the meeting may appoint any person to act as secretary of the meeting.
SECTION 1.7 VOTING;
PROXIES. Unless otherwise provided by law or the Certificate of Incorporation of the Corporation, and subject to the provisions
of Section 1.8 of these Bylaws, each stockholder shall be entitled to one (1) vote for each share of stock held by such
stockholder. Each stockholder entitled to vote at a meeting of stockholders, or to take corporate action by written consent without
a meeting, may authorize another person or persons to act for such stockholder by proxy. Such a proxy may be prepared, transmitted
and delivered in any manner permitted by applicable law. Elections of directors and other voting at meetings of stockholders need
not be by written ballot unless demand is so made by any stockholder at the meeting before voting begins or the Chair of the meeting
so elects. If a vote is to be taken by written ballot, then each such ballot shall state the name of the stockholder or proxy voting
and such other information as the chairperson of the meeting deems appropriate and, if authorized by the Board of Directors, the
ballot may be submitted by electronic transmission in the manner provided by law. A nominee for director shall be elected to the
Board of Directors if the votes cast for such nominee’s election exceed the votes cast against such nominee’s election;
provided, however, that directors shall be elected by a plurality of the votes cast at any meeting of stockholders for which (a) the
Secretary of the Corporation receives a notice that a stockholder has nominated a person for election to the Board of Directors
in compliance with the requirements for stockholder nominees for director set forth in Section 1.11 hereof and (b) such
nomination has not been withdrawn by such stockholder on or before the tenth (10th) day before the Corporation first mails
its notice of meeting for such meeting to the stockholders. If directors are to be elected by a plurality of the votes cast, stockholders
shall not be permitted to vote against a nominee. Unless otherwise provided by applicable law, the Certificate of Incorporation
of the Corporation or these Bylaws, every matter other than the election of directors shall be decided by the affirmative vote
of the holders of a majority of the shares of stock entitled to vote thereon that are present in person or represented by proxy
at the meeting and are voted for or against the matter.
SECTION 1.8 FIXING
DATE FOR DETERMINATION OF STOCKHOLDERS OF RECORD. In order that the Corporation may determine the stockholders entitled
to notice of or to vote at any meeting of stockholders or any adjournment thereof, or entitled to receive payment of any dividend
or other distribution or allotment of any rights, or entitled to exercise any rights in respect of any change, conversion or exchange
of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall
not precede the date upon which the resolution fixing the record date is adopted by the Board of Directors and which shall not
be more than sixty (60) nor less than ten (10) days before the date of such meeting, nor more than sixty (60) days
prior to any other action. If no record date is fixed by the Board of Directors, then the record date shall be as provided by applicable
law. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any
adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting.
SECTION 1.9 LIST OF
STOCKHOLDERS ENTITLED TO VOTE. A complete list of stockholders entitled to vote at any meeting of stockholders, arranged
in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder,
shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours, for
a period of at least ten (10) days prior to the meeting, either on a reasonably accessible electronic network as permitted
by law (provided that the information required to gain access to the list is provided with the notice of the meeting) or during
ordinary business hours at the principal place of business of the Corporation. If the meeting is held at a place, the list shall
also be produced and kept at the time and place of the meeting during the whole time thereof and may be inspected by any stockholder
who is present at the meeting. If the meeting is held solely by means of remote communication, then the list shall be open to the
examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information
required to access the list shall be provided with the notice of the meeting.
SECTION 1.10 INSPECTORS
OF ELECTIONS.
(a) Applicability. Unless
otherwise provided in the Certificate of Incorporation of the Corporation or required by the Delaware General Corporation Law,
the following provisions of this Section 1.10 shall apply only if and when the Corporation has a class of voting stock that
is: (i) listed on a national securities exchange;
(ii) authorized for quotation on an automated interdealer quotation
system of a registered national securities association; or (iii) held of record by more than 2,000 stockholders; in all other
cases, observance of the provisions of this Section 1.10 shall be optional, and at the discretion of the Corporation.
(b) Appointment. The
Corporation shall, in advance of any meeting of stockholders, appoint one or more inspectors of election to act at the meeting
and make a written report thereof. The Corporation may designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of stockholders, the person presiding at the meeting
shall appoint one or more inspectors to act at the meeting.
(c) Inspector’s
Oath. Each inspector of election, before entering upon the discharge of his duties, shall take and sign an oath faithfully to execute
the duties of inspector with strict impartiality and according to the best of such inspector’s ability.
(d) Duties of Inspectors.
At a meeting of stockholders, the inspectors of election shall (i) ascertain the number of shares outstanding and the voting
power of each share, (ii) determine the shares represented at a meeting and the validity of proxies and ballots, (iii) count
all votes and ballots, (iv) determine and retain for a reasonable period of time a record of the disposition of any challenges
made to any determination by the inspectors, and (v) certify their determination of the number of shares represented at the
meeting, and their count of all votes and ballots. The inspectors may appoint or retain other persons or entities to assist the
inspectors in the performance of the duties of the inspectors.
(e) Opening and Closing
of Polls. The date and time of the opening and the closing of the polls for each matter upon which the stockholders will vote at
a meeting shall be announced by the chairperson of the meeting. No ballot, proxies or votes, nor any revocations thereof or changes
thereto, shall be accepted by the inspectors after the closing of the polls unless the Court of Chancery upon application by a
stockholder shall determine otherwise.
(f) Determinations. In
determining the validity and counting of proxies and ballots, the inspectors shall be limited to an examination of the proxies,
any envelopes submitted with those proxies, any information provided in connection with proxies in accordance with Section 212(c)(2)
of the Delaware General Corporation Law, ballots and the regular books and records of the Corporation, except that the inspectors
may consider other reliable information for the limited purpose of reconciling proxies and ballots submitted by or on behalf of
banks, brokers, their nominees or similar persons which represent more votes than the holder of a proxy is authorized by the record
owner to cast or more votes than the stockholder holds of record. If the inspectors consider other reliable information for the
limited purpose permitted herein, the inspectors at the time they make their certification of their determinations pursuant to
this Section 1.10 shall specify the precise information considered by them, including the person or persons from whom they
obtained the information, when the information was obtained, the means by which the information was obtained and the basis for
the inspectors’ belief that such information is accurate and reliable.
SECTION 1.11 NOTICE
OF STOCKHOLDER BUSINESS; NOMINATIONS.
(a) Annual Meeting of
Stockholders.
(i) Nominations of persons
for election to the Board of Directors and the proposal of business to be considered by the stockholders shall be made at an annual
meeting of stockholders (A) pursuant to the Corporation’s notice of such meeting, (B) by or at the direction of
the Board of Directors or (C) by any stockholder of the Corporation who was a stockholder of record at the time of giving
of the notice provided for in this Section 1.11, who is entitled to vote at such meeting and who complies with the notice
procedures set forth in this Section 1.11
(ii) For nominations
or other business to be properly brought before an annual meeting by a stockholder pursuant to clause (C) of subparagraph
(a)(i) of this Section 1.11, the stockholder must have given timely notice thereof in writing to the Secretary of the Corporation
and such other business must otherwise be a proper matter for stockholder action. To be timely, a stockholder’s notice must
be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the
seventy-fifth (75th) day nor
earlier than the close of business on the one hundred and fifth (105th) day prior to the
first anniversary of the preceding year’s annual meeting (except in the case of the 2006 annual meeting, for which such notice
shall be timely if delivered in the same time period as if such meeting were a special meeting governed by subparagraph (b) of
this Section 1.11); provided, however, that in the event that the date of the annual meeting is more than thirty (30) days
before or more than sixty (60) days after such anniversary date, notice by the stockholder to be timely must be so delivered
not earlier than the close of business on the one hundred and fifth (105th) day prior to such annual meeting and not later
than the close of business on the later of the seventy-fifth (75th) day prior to such annual meeting or the close of business
on the tenth (10th) day following the day on which public announcement of the date of such meeting is first made by the Corporation.
Such stockholder’s notice shall set forth: (a) as to each person whom the stockholder proposes to nominate for election
or reelection as a director all information relating to such person that is required to be disclosed in solicitations of proxies
for election of directors, or is otherwise required, in each case pursuant to Regulation 14A under the Securities Exchange Act
of 1934, as amended (the “EXCHANGE ACT”), including such person’s written consent to being named in the proxy
statement as a nominee and to serving as a director if elected; (b) as to any other business that the stockholder proposes
to bring before the meeting, a brief description of the business desired to be brought before the meeting, the reasons for conducting
such business at the meeting and any material interest in such business of such stockholder and the beneficial owner, if any, on
whose behalf the proposal is made; and (c) as to the stockholder giving the notice and the beneficial owner, if any, on whose
behalf the nomination or proposal is made (1) the name and address of such stockholder, as they appear on the Corporation’s
books, and of such beneficial owner, and (2) the class and number of shares of the Corporation that are owned beneficially
and held of record by such stockholder and such beneficial owner.
(iii) Notwithstanding
anything in the second sentence of subparagraph (a)(ii) of this Section 1.11 to the contrary, in the event that the number
of directors to be elected to the Board of Directors of the Corporation is increased and there is no public announcement by the
Corporation naming all of the nominees for director or specifying the size of the increased board of directors at least seventy-five
(75) days prior to the first anniversary of the preceding year’s annual meeting (or, if the annual meeting is held more
than thirty (30) days before or sixty (60) days after such anniversary date, at least seventy-five (75) days prior
to such annual meeting), a stockholder’s notice required by this Section 1.11 shall also be considered timely, but only
with respect to nominees for any new positions created by such increase, if it shall be delivered to the Secretary of the Corporation
at the principal executive office of the Corporation not later than the close of business on the tenth (10th) day following
the day on which such public announcement is first made by the Corporation.
(b) Special Meetings
of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the
meeting pursuant to the Corporation’s notice of such meeting. Nominations of persons for election to the Board of Directors
may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice
of such meeting (i) by or at the direction of the Board of Directors or (ii) provided that the Board of Directors has
determined that directors shall be elected at such meeting, by any stockholder of the Corporation who is a stockholder of record
at the time of giving of notice of the special meeting, who shall be entitled to vote at the meeting and who complies with the
notice procedures set forth in this Section 1.11. In the event the Corporation calls a special meeting of stockholders for
the purpose of electing one or more directors to the Board of Directors, any such stockholder may nominate a person or persons
(as the case may be), for election to such position(s) as specified in the Corporation’s notice of meeting, if the stockholder’s
notice required by subparagraph (a)(ii) of this Section 1.11 shall be delivered to the Secretary of the Corporation at the
principal executive offices of the Corporation not earlier than the one hundred fifth (105th) day prior to such special meeting
and not later than the close of business on the later of the seventy-fifth (75th) day prior to such special meeting or the
tenth (10th) day following the day on which public announcement is first made of the date of the special meeting and of the
nominees proposed by the Board of Directors to be elected at such meeting.
(c) General.
(i) Only such persons
who are nominated in accordance with the procedures set forth in this Section 1.11 shall be eligible to serve as directors
and only such business shall be conducted at a meeting of stockholders as shall have been brought before the meeting in accordance
with the procedures set forth in this Section 1.11. Except as otherwise provided by law or these Bylaws, the chairperson of
the meeting shall have the power and duty to determine whether a nomination or any business proposed to be brought before the meeting
was made or proposed, as the case may be, in accordance with the procedures set forth in this Section 1.11 and, if any
proposed
nomination or business is not in compliance herewith, to declare that such defective proposal or nomination shall be disregarded.
(ii) For purposes of
this Section 1.11, the term “PUBLIC ANNOUNCEMENT” shall mean disclosure in a press release reported by the Dow
Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with
the Securities and Exchange Commission pursuant to section 13, 14 or 15(d) of the Exchange Act.
(iii) Notwithstanding
the foregoing provisions of this Section 1.11, a stockholder shall also comply with all applicable requirements of the Exchange
Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 1.11 shall
be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant
to Rule 14a-8 under the Exchange Act.
ARTICLE II
BOARD OF DIRECTORS
SECTION 2.1 NUMBER;
QUALIFICATIONS. The Board of Directors shall consist of one or more members. The initial number of directors shall be
nine, and thereafter shall be fixed from time to time by resolution of the Board of Directors. No decrease in the authorized number
of directors constituting the Board of Directors shall shorten the term of any incumbent director. Directors need not be stockholders
of the Corporation.
SECTION 2.2 ELECTION;
RESIGNATION; REMOVAL; VACANCIES. Subject to the rights of the holders of any series of Preferred Stock to elect additional
directors under specified circumstances, following the closing of the Corporation’s initial public offering pursuant to an
effective registration statement under the Securities Act of 1933, as amended, covering the offer and sale of Common Stock to the
public (the “INITIAL PUBLIC OFFERING”), the directors shall be divided, with respect to the time for which they severally
hold office, into three classes designated as Class I, Class II and Class III, respectively. Directors shall be assigned to each
class in accordance with a resolution or resolutions adopted by the Board of Directors, with the number of directors in each class
to be divided as equally as reasonably possible. The initial term of office of the Class I directors shall expire at the Corporation’s
first annual meeting of stockholders following the closing of the Initial Public Offering, the initial term of office of the Class
II directors shall expire at the Corporation’s second annual meeting of stockholders following the closing of the Initial
Public Offering, and the initial term of office of the Class III directors shall expire at the corporation’s third annual
meeting of stockholders following the closing of the Initial Public Offering. At each annual meeting of stockholders commencing
with the first annual meeting of stockholders following the closing of the Initial Public Offering, directors elected to succeed
those directors of the class whose terms then expire shall be elected for a term of office to expire at the third succeeding annual
meeting of stockholders after their election and until such director’s successor is elected and qualified, or until such
director’s earlier death, resignation or removal; provided, that, if an incumbent director resigns as a result of failing
to receive the votes required to be elected in an uncontested election pursuant to Section 1.7 hereof, then the term of such
incumbent director shall end on the date that is the earlier of 90 days after the certification of the stockholder vote and the
date on which the office held by such director has been filled by the Board. Any director may resign at any time upon notice to
the Corporation given in writing or by electronic transmission. Subject to the rights of the holders of any series of Preferred
Stock, no director may be removed except for cause by the holders of a majority of the shares then entitled to vote at an election
of directors. Subject to the rights of the holders of any series of Preferred Stock, any vacancy occurring in the Board of Directors
for any cause, and any newly created directorship resulting from any increase in the authorized number of directors, shall, unless
as otherwise provided by law, be filled only by the affirmative vote of a majority of the directors then in office, although less
than a quorum, or by a sole remaining director. In the event of any increase or decrease in the authorized number of directors,
(i) each director then serving as such shall nevertheless continue as a director of the class of which he is a member and
(ii) the newly created or eliminated directorships resulting from such increase or decrease shall be apportioned by the Board
of Directors among the three classes of directors so as to ensure that no one class has more than one director more than any other
class. To the extent possible, consistent with the foregoing rule, any newly created directorships shall be added to those classes
whose terms of office are to expire at the latest dates following such allocation, and any newly eliminated directorships shall
be subtracted from those classes whose terms of office are to expire at the earliest dates following such allocation, unless otherwise
provided from time to time by resolution adopted by the Board of Directors.
SECTION 2.3 REGULAR
MEETINGS. Regular meetings of the Board of Directors may be held at such places, within or without the State of Delaware,
and at such times as the Board of Directors may from time to time determine. Notice of regular meetings need not be given if the
date, times and places thereof are fixed by resolution of the Board of Directors.
SECTION 2.4 SPECIAL
MEETINGS. Special meetings of the Board of Directors may be called by the Chairperson of the Board of Directors, the President
or a majority of the members of the Board of Directors then in office and may be held at any time, date or place, within or without
the State of Delaware, as the person or persons calling the meeting shall fix. Notice of the time, date and place of such meeting
shall be given, orally, in writing or by electronic transmission (including electronic mail), by the person or persons calling
the meeting to all directors at least four (4) days before the meeting if the notice is mailed, or at least twenty-four (24) hours
before the meeting if such notice is given by telephone, hand delivery, telegram, telex, mailgram, facsimile, electronic mail or
other means of electronic transmission. Unless otherwise indicated in the notice, any and all business may be transacted at a special
meeting.
SECTION 2.5 REMOTE
MEETINGS PERMITTED. Members of the Board of Directors, or any committee of the Board, may participate in a meeting of
the Board or such committee by means of conference telephone or other communications equipment by means of which all persons participating
in the meeting can hear each other, and participation in a meeting pursuant to conference telephone or other communications equipment
shall constitute presence in person at such meeting.
SECTION 2.6 QUORUM;
VOTE REQUIRED FOR ACTION. At all meetings of the Board of Directors a majority of the total number of authorized directors
shall constitute a quorum for the transaction of business. Except as otherwise provided herein or in the Certificate of Incorporation
of the Corporation, or required by law, the vote of a majority of the directors present at a meeting at which a quorum is present
shall be the act of the Board of Directors.
SECTION 2.7 ORGANIZATION. Meetings
of the Board of Directors shall be presided over by the Chairperson of the Board of Directors, or in such person’s absence
by the President, or in such person’s absence by a chairperson chosen at the meeting. The Secretary shall act as secretary
of the meeting, but in such person’s absence the chairperson of the meeting may appoint any person to act as secretary of
the meeting.
SECTION 2.8 WRITTEN
ACTION BY DIRECTORS. Any action required or permitted to be taken at any meeting of the Board of Directors, or of any
committee thereof, may be taken without a meeting if all members of the Board or such committee, as the case may be, consent thereto
in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions are filed with
the minutes of proceedings of the Board or committee, respectively. Such filing shall be in paper form if the minutes are maintained
in paper form and shall be in electronic form if the minutes are maintained in electronic form.
SECTION 2.9 POWERS. The
Board of Directors may, except as otherwise required by law or the Certificate of Incorporation of the Corporation, exercise all
such powers and do all such acts and things as may be exercised or done by the Corporation.
SECTION 2.10 COMPENSATION
OF DIRECTORS. Directors, as such, may receive, pursuant to a resolution of the Board of Directors, fees and other compensation
for their services as directors, including without limitation their services as members of committees of the Board of Directors.
ARTICLE III
COMMITTEES
SECTION 3.1 COMMITTEES. The
Board of Directors may designate one or more committees, each committee to consist of one or more of the directors of the Corporation.
The Board of Directors may designate one or more directors as alternate members of any committee, who may replace any absent or
disqualified member at any meeting of the committee. In the absence or disqualification of a member of the committee, the member
or members thereof present at any meeting of such committee who are not disqualified from voting, whether or not
such member or
members constitute a quorum, may unanimously appoint another member of the Board of Directors to act at the meeting in place of
any such absent or disqualified member. Any such committee, to the extent provided in a resolution of the Board of Directors, shall
have and may exercise all the powers and authority of the Board of Directors in the management of the business and affairs of the
Corporation and may authorize the seal of the Corporation to be affixed to all papers that may require it; but no such committee
shall have the power or authority in reference to the following matters: (i) approving or adopting, or recommending to the
stockholders, any action or matter expressly required by the Delaware General Corporation Law to be submitted to stockholders for
approval or (ii) adopting, amending or repealing any bylaw of the Corporation.
SECTION 3.2 COMMITTEE
RULES. Unless the Board of Directors otherwise provides, each committee designated by the Board of Directors may make,
alter and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business
in the same manner as the Board of Directors conducts its business pursuant to Article II of these Bylaws.
ARTICLE IV
OFFICERS
SECTION 4.1 GENERALLY. The
officers of the Corporation shall consist of a Chief Executive Officer and/or a President, one or more Vice Presidents, a Secretary,
a Treasurer and such other officers, including a Chairperson of the Board of Directors and/or Chief Financial Officer, as may from
time to time be appointed by the Board of Directors. All officers shall be elected by the Board of Directors. Each officer shall
hold office until such person’s successor is elected and qualified or until such person’s earlier resignation or removal.
Any number of offices may be held by the same person. Any officer may resign at any time upon written notice to the Corporation.
Any vacancy occurring in any office of the Corporation by death, resignation, removal or otherwise may be filled by the Board of
Directors.
SECTION 4.2 CHIEF EXECUTIVE
OFFICER. Subject to the control of the Board of Directors and such supervisory powers, if any, as may be given by the
Board of Directors, the powers and duties of the Chief Executive Officer of the Corporation are:
(a) To act as the general
manager and, subject to the control of the Board of Directors, to have general supervision, direction and control of the business
and affairs of the Corporation;
(b) To preside at all
meetings of the stockholders;
(c) To call meetings
of the stockholders to be held at such times and, subject to the limitations prescribed by law or by these Bylaws, at such places
as he or she shall deem proper; and
(d) To affix the signature
of the Corporation to all deeds, conveyances, mortgages, guarantees, leases, obligations, bonds, certificates and other papers
and instruments in writing which have been authorized by the Board of Directors or which, in the judgment of the Chief Executive
Officer, should be executed on behalf of the Corporation; to sign certificates for shares of stock of the Corporation; and, subject
to the direction of the Board of Directors, to have general charge of the property of the Corporation and to supervise and control
all officers, agents and employees of the Corporation.
The President shall be the Chief Executive
Officer of the Corporation unless the Board of Directors shall designate another officer to be the Chief Executive Officer. If
there is no President, and the Board of Directors has not designated any other officer to be the Chief Executive Officer, then
the Chairperson of the Board of Directors shall be the Chief Executive Officer.
SECTION 4.3 CHAIRPERSON
OF THE BOARD. The Chairperson of the Board of Directors shall have the power to preside at all meetings of the Board of
Directors and shall have such other powers and duties as provided in these Bylaws and as the Board of Directors may from time to
time prescribe.
SECTION 4.4 PRESIDENT. The
President shall be the Chief Executive Officer of the Corporation unless the Board of Directors shall have designated another officer
as the Chief Executive Officer of the Corporation. Subject to the provisions of these Bylaws and to the direction of the Board
of Directors, and subject to the supervisory powers of the Chief Executive Officer (if the Chief Executive Officer is an officer
other than the President), and subject to such supervisory powers and authority as may be given by the Board of Directors to the
Chairperson of the Board of Directors, and/or to any other officer, the President shall have the responsibility for the general
management the control of the business and affairs of the Corporation and the general supervision and direction of all of the officers,
employees and agents of the Corporation (other than the Chief Executive Officer, if the Chief Executive Officer is an officer other
than the President) and shall perform all duties and have all powers that are commonly incident to the office of President or that
are delegated to the President by the Board of Directors.
SECTION 4.5 VICE PRESIDENT. Each
Vice President shall have all such powers and duties as are commonly incident to the office of Vice President, or that are delegated
to him or her by the Board of Directors or the Chief Executive Officer. A Vice President may be designated by the Board to perform
the duties and exercise the powers of the Chief Executive Officer in the event of the Chief Executive Officer’s absence or
disability.
SECTION 4.6 CHIEF FINANCIAL
OFFICER. The Chief Financial Officer shall be the Treasurer of the Corporation unless the Board of Directors shall have
designated another officer as the Treasurer of the Corporation. Subject to the direction of the Board of Directors and the Chief
Executive Officer, the Chief Financial Officer shall perform all duties and have all powers that are commonly incident to the office
of Chief Financial Officer.
SECTION 4.7 TREASURER. The
Treasurer shall have custody of all monies and securities of the Corporation. The Treasurer shall make such disbursements of the
funds of the Corporation as are authorized and shall render from time to time an account of all such transactions. The Treasurer
shall also perform such other duties and have such other powers as are commonly incident to the office of Treasurer, or as the
Board of Directors or the Chief Executive Officer may from time to time prescribe.
SECTION 4.8 SECRETARY. The
Secretary shall issue or cause to be issued all authorized notices for, and shall keep, or cause to be kept, minutes of all meetings
of the stockholders and the Board of Directors. The Secretary shall have charge of the corporate minute books and similar records
and shall perform such other duties and have such other powers as are commonly incident to the office of Secretary, or as the Board
of Directors or the Chief Executive Officer may from time to time prescribe.
SECTION 4.9 DELEGATION
OF AUTHORITY. The Board of Directors may from time to time delegate the powers or duties of any officer to any other officers
or agents, notwithstanding any provision hereof.
SECTION 4.10 REMOVAL. Any
officer of the Corporation shall serve at the pleasure of the Board of Directors and may be removed at any time, with or without
cause, by the Board of Directors. Such removal shall be without prejudice to the contractual rights of such officer, if any, with
the Corporation.
ARTICLE V
STOCK
SECTION 5.1 CERTIFICATES. Every
holder of stock shall be entitled to have a certificate signed by or in the name of the Corporation by the Chairperson or Vice-Chairperson
of the Board of Directors, or the President or a Vice President, and by the Treasurer or an Assistant Treasurer, or the Secretary
or an Assistant Secretary, of the Corporation, certifying the number of shares owned by such stockholder in the Corporation. Any
or all of the signatures on the certificate may be a facsimile.
SECTION 5.2 LOST,
STOLEN OR DESTROYED STOCK CERTIFICATES; ISSUANCE OF NEW CERTIFICATES. The Corporation may issue a new certificate
of stock in the place of any certificate previously issued by it, alleged to have been lost, stolen or destroyed, and the
Corporation may require the owner of the lost, stolen or destroyed certificate, or such owner’s legal representative,
to agree to indemnify the Corporation and/or to give the Corporation a bond sufficient to indemnify it, against any claim
that may be made against it on account of the alleged loss, theft or destruction of any such certificate or the issuance of
such new certificate.
SECTION 5.3 OTHER REGULATIONS. The
issue, transfer, conversion and registration of stock certificates shall be governed by such other regulations as the Board of
Directors may establish.
ARTICLE VI
INDEMNIFICATION
SECTION 6.1 INDEMNIFICATION
OF OFFICERS AND DIRECTORS. Each person who was or is made a party to, or is threatened to be made a party to, or is involved
in any action, suit or proceeding, whether civil, criminal, administrative or investigative (a “PROCEEDING”), by reason
of the fact that such person (or a person of whom such person is the legal representative), is or was a director or officer of
the Corporation or is or was serving at the request of the Corporation as a director or officer of another corporation, or of a
partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans, shall be indemnified
and held harmless by the Corporation to the fullest extent permitted by the Delaware General Corporation Law, against all expenses,
liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid or to
be paid in settlement) reasonably incurred or suffered by such person in connection therewith, provided such person acted in good
faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and,
with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful.
Such indemnification shall continue as to a person who has ceased to be a director or officer and shall inure to the benefit of
such person’s heirs, executors and administrators. Notwithstanding the foregoing, the Corporation shall indemnify any such
person seeking indemnity in connection with a Proceeding (or part thereof) initiated by such person only if such Proceeding (or
part thereof) was authorized by the Board of Directors of the Corporation, or if such indemnification is authorized by an agreement
approved by the Board of Directors.
SECTION 6.2 ADVANCE
OF EXPENSES. The Corporation shall pay all expenses (including attorneys’ fees) incurred by such a director or officer
in defending any such Proceeding as they are incurred in advance of its final disposition; provided, however, that if the Delaware
General Corporation Law then so requires, the payment of such expenses incurred by such a director or officer in advance of the
final disposition of such Proceeding shall be made only upon delivery to the Corporation of an undertaking, by or on behalf of
such director or officer, to repay all amounts so advanced if it should be determined ultimately that such director or officer
is not entitled to be indemnified under this Article VI or otherwise; and provided, further, that the Corporation shall not be
required to advance any expenses to a person against whom the Corporation directly brings a claim, in a Proceeding, alleging that
such person has breached such person’s duty of loyalty to the Corporation, committed an act or omission not in good faith
or that involves intentional misconduct or a knowing violation of law, or derived an improper personal benefit from a transaction.
SECTION 6.3 NON-EXCLUSIVITY
OF RIGHTS. The rights conferred on any person in this Article VI shall not be exclusive of any other right that such person
may have or hereafter acquire under any statute, provision of the Certificate of Incorporation of the Corporation, Bylaw, agreement,
vote or consent of stockholders or disinterested directors, or otherwise. Additionally, nothing in this Article VI shall limit
the ability of the Corporation, in its discretion, to indemnify or advance expenses to persons whom the Corporation is not obligated
to indemnify or advance expenses pursuant to this Article VI.
SECTION 6.4 INDEMNIFICATION
CONTRACTS. The Board of Directors is authorized to cause the Corporation to enter into indemnification contracts with
any director, officer, employee or agent of the Corporation, or any person serving at the request of the Corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, including employee benefit
plans, providing indemnification rights to such person. Such rights may be greater than those provided in this Article VI.
SECTION 6.5 EFFECT
OF AMENDMENT. Any amendment, repeal or modification of any provision of this Article VI shall be prospective only, and
shall not adversely affect any right or protection conferred on a person pursuant to this Article VI and existing at the time of
such amendment, repeal or modification.
ARTICLE VII
NOTICES
SECTION 7.1 NOTICE.
(a) Except as otherwise
specifically provided in these Bylaws (including, without limitation, Section 7.1(b) below) or required by law, all notices
required to be given pursuant to these Bylaws shall be in writing and may in every instance be effectively given by hand delivery
(including use of a delivery service), by depositing such notice in the mail, postage prepaid, or by sending such notice by prepaid
telegram, telex, overnight express courier, mailgram or facsimile, electronic mail or other means of electronic transmission. Any
such notice shall be addressed to the person to whom notice is to be given at such person’s address as it appears on the
records of the Corporation. The notice shall be deemed given (i) in the case of hand delivery, when received by the person
to whom notice is to be given or by any person accepting such notice on behalf of such person, (ii) in the case of delivery
by mail, upon deposit in the mail, (iii) in the case of delivery by overnight express courier, when dispatched, and (iv) in
the case of delivery via telegram, telex, mailgram, facsimile, electronic mail or other means of electronic transmission, when
dispatched. Notice given pursuant to this Section 7.1(a) shall be deemed given: (i) if by facsimile telecommunication,
when directed to a number at which the person has consented to receive notice; (ii) if by electronic mail, when directed to
an electronic mail address at which the person has consented to receive notice; (iii) if by any other form of electronic transmission,
when directed to the person.
(b) Without limiting
the manner by which notice otherwise may be given effectively to stockholders, any notice to stockholders given by the Corporation
under any provision of the Delaware General Corporation Law, the Certificate of Incorporation of the Corporation, or these Bylaws
shall be effective if given by a form of electronic transmission consented to by the stockholder to whom the notice is given. Any
such consent shall be revocable by the stockholder by written notice to the Corporation. Any such consent shall be deemed revoked
if (i) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in
accordance with such consent and (ii) such inability becomes known to the Secretary or an Assistant Secretary of the Corporation
or to the transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat
such inability as a revocation shall not invalidate any meeting or other action. Notice given pursuant to this Section 7.1(b)
shall be deemed given: (i) if by facsimile telecommunication, when directed to a number at which the stockholder has consented
to receive notice; (ii) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented
to receive notice; (iii) if by a posting on an electronic network together with separate notice to the stockholder of such
specific posting, upon the later of (A) such posting and (B) the giving of such separate notice; and (iv) if by
any other form of electronic transmission, when directed to the stockholder.
(c) An affidavit of the
Secretary or an Assistant Secretary or of the transfer agent or other agent of the Corporation that the notice has been given in
writing or by a form of electronic transmission shall, in the absence of fraud, be prima facie evidence of the facts stated therein.
SECTION 7.2 WAIVER
OF NOTICE. Whenever notice is required to be given under any provision of these Bylaws, a written waiver of notice, signed
by the person entitled to notice, or waiver by electronic transmission by such person, whether before or after the time stated
therein, shall be deemed equivalent to notice. Attendance of a person at a meeting shall constitute a waiver of notice of such
meeting, except when the person attends a meeting for the express purpose of objecting at the beginning of the meeting to the transaction
of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose
of, any regular or special meeting of the stockholders, directors or members of a committee of directors need be specified in any
waiver of notice.
ARTICLE VIII
INTERESTED DIRECTORS
SECTION 8.1 INTERESTED
DIRECTORS; QUORUM. No contract or transaction between the Corporation and one or more of its directors or officers, or
between the Corporation and any other corporation, partnership, association or other organization in which one or more of its directors
or officers are directors or officers, or have a financial interest, shall be void or voidable solely for this reason, or solely
because the director or
officer is present at or participates in the meeting of the Board of Directors or committee thereof that
authorizes the contract or transaction, or solely because his, her or their votes are counted for such purpose, if: (i) the
material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed or are known
to the Board of Directors or the committee, and the Board of Directors or committee in good faith authorizes the contract or transaction
by the affirmative votes of a majority of the disinterested directors, even though the disinterested directors be less than a quorum;
(ii) the material facts as to his, her or their relationship or interest and as to the contract or transaction are disclosed
or are known to the stockholders entitled to vote thereon, and the contract or transaction is specifically approved in good faith
by vote of the stockholders; or (iii) the contract or transaction is fair as to the Corporation as of the time it is authorized,
approved or ratified by the Board of Directors, a committee thereof, or the stockholders. Common or interested directors may be
counted in determining the presence of a quorum at a meeting of the Board of Directors or of a committee which authorizes the contract
or transaction.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 FISCAL
YEAR. The fiscal year of the Corporation shall be determined by resolution of the Board of Directors.
SECTION 9.2 SEAL. The
Board of Directors may provide for a corporate seal, which shall have the name of the Corporation inscribed thereon and shall otherwise
be in such form as may be approved from time to time by the Board of Directors.
SECTION 9.3 FORM OF
RECORDS. Any records maintained by the Corporation in the regular course of its business, including its stock ledger,
books of account and minute books, may be kept on or by means of, or be in the form of, diskettes or any other information storage
device or method, provided that the records so kept can be converted into clearly legible paper form within a reasonable time.
The Corporation shall so convert any records so kept upon the request of any person entitled to inspect such records pursuant to
any provision of the Delaware General Corporation Law.
SECTION 9.4 RELIANCE
UPON BOOKS AND RECORDS. A member of the Board of Directors, or a member of any committee designated by the Board of Directors
shall, in the performance of such person’s duties, be fully protected in relying in good faith upon records of the Corporation
and upon such information, opinions, reports or statements presented to the Corporation by any of the Corporation’s officers
or employees, or committees of the Board of Directors, or by any other person as to matters the member reasonably believes are
within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf
of the Corporation.
SECTION 9.5 CERTIFICATE
OF INCORPORATION GOVERNS. In the event of any conflict between the provisions of the Certificate of Incorporation of the
Corporation and Bylaws, the provisions of the Certificate of Incorporation of the Corporation shall govern.
SECTION 9.6 SEVERABILITY. If
any provision of these Bylaws shall be held to be invalid, illegal, unenforceable or in conflict with the provisions of the Certificate
of Incorporation of the Corporation, then such provision shall nonetheless be enforced to the maximum extent possible consistent
with such holding and the remaining provisions of these Bylaws (including without limitation, all portions of any section of these
Bylaws containing any such provision held to be invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation
of the Corporation, that are not themselves invalid, illegal, unenforceable or in conflict with the Certificate of Incorporation
of the Corporation) shall remain in full force and effect.
ARTICLE X
FORUM
FOR ADJUDICATION OF CERTAIN DISPUTES
Section 10.1
Forum for Adjudication of Certain Disputes. Unless the Corporation consents in writing to the selection
of an alternative forum (an “Alternative Forum Consent”), to the fullest extent permitted by law, the Court of Chancery
of the State of Delaware (or, if such court does not have jurisdiction, the Superior Court of the State of Delaware, or, if such
other court does not have jurisdiction, the United States District Court for the District of Delaware) shall be the sole and exclusive
forum for any internal corporate claims, as such term is defined and used in Section 115 of the General Corporation Law of Delaware,
brought by a stockholder (including any beneficial owner) as the same may be amended from time to time, including without limitation:
(i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach
of a fiduciary duty owed by any stockholder, director, officer, stockholder, employee or agent of the Corporation to the Corporation
or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation (or any director, officer,
stockholder, employee or agent) of the Corporation arising pursuant to or under any provision of the General Corporation Law of
Delaware or the Certificate of Incorporation or Bylaws, in each case as the same may be amended from time to time, (iv) any action
to interpret, apply, enforce or determine the validity of the Certificate of Incorporation or Bylaws, in each case as the same
may be amended from time to time, or (v) any action asserting a claim against the Corporation or any director, officer, stockholder,
employee or agent of the Corporation governed by the internal affairs doctrine of the State of Delaware. Failure to enforce the
foregoing provisions would cause the Corporation irreparable harm and the Corporation shall be entitled to equitable relief, including
injunctive relief and specific performance, to enforce the foregoing provisions.
ARTICLE
XI
AMENDMENT
SECTION 10.1 11.1 AMENDMENTS. Stockholders of the Corporation holding a majority of the
Corporation’s outstanding voting stock then entitled to vote at an election of directors shall have the power to adopt, amend
or repeal Bylaws. To the extent provided in the Certificate of Incorporation of the Corporation, the Board of Directors of the
Corporation shall also have the power to adopt, amend or repeal Bylaws of the Corporation.
Exhibit 99.1
IMMEDIATE RELEASE
October 28, 2015
Snyder’s-Lance, Inc. Signs
Definitive Agreement
to Acquire Diamond Foods, Inc.
Brings Together Two Highly Complementary
Companies, with Iconic Snacking Brands
Expected to be Accretive to Snyder’s-Lance
2016 Annualized Earnings per Share
Estimated Annual Synergies of
$75 Million
Will Host Conference Call at
10:00am Eastern Time to Discuss Transaction
CHARLOTTE, N.C., and SAN FRANCISCO, C.A., October 28,
2015 /PRNewswire/ -- Snyder’s-Lance, Inc. (NASDAQ: LNCE) (“Snyder’s-Lance” or “Company”) and
Diamond Foods, Inc. (NASDAQ: DMND) (“Diamond Foods” or “Diamond”) today announced that they have entered
into a definitive agreement under which Snyder’s-Lance will acquire all outstanding shares of Diamond Foods in a cash and
stock merger transaction for approximately $1.91 billion, including the assumption of approximately $640 million of indebtedness.
Under the terms of the agreement, Diamond stockholders will receive 0.775 Snyder’s-Lance shares and $12.50 in cash per Diamond
Foods share upon closing of the transaction. The agreement has been approved by the Boards of Directors of both companies, who
recommend that their respective stockholders approve the transaction. Oaktree Capital (NYSE:OAK), Diamond’s largest stockholder,
has agreed to vote in favor of the transaction. Diamond Foods stockholders will own approximately 26% of the combined company based
on today’s outstanding share counts.
The strategic combination of Snyder’s-Lance and
Diamond Foods creates an innovative, highly complementary and diversified portfolio of branded products. Diamond Foods is a leading
snack food company with five brands including Kettle Brand® potato chips, KETTLE® Chips, Pop Secret® popcorn, Emerald®
snack nuts, and Diamond of California® culinary nuts. Each Diamond Foods brand brings unique strengths that fit with Snyder’s-Lance’s
strategic plan while increasing the company’s annualized net revenue to approximately $2.6 billion.
The transaction expands Snyder’s-Lance’s
footprint in “better-for-you” snacking and increases the Company’s existing natural food channel presence. Snyder’s-Lance
expects that this transaction will expand and strengthen its Direct Store Delivery (“DSD”) network in the United States,
and provide Snyder’s-Lance with a platform for growth in the UK and across Europe.
Snyder’s-Lance expects the transaction to be immediately
accretive to the Company’s 2016 annualized earnings. The significant synergy potential includes an estimated $75 million
in annual cost savings, of which approximately $10 million will be re-invested in the business to achieve the combined company’s
growth plans. This excludes transaction-related and integration costs. Synergies are expected to come from increased scale of the
combined company, leveraging Snyder’s-Lance existing distribution system and cost reductions. In addition Snyder’s-Lance
will gain the benefit of tax net operating losses (NOL’s) with a net present value of $110 million dollars.
“Diamond Foods is a clear industry leader with
exceptional brands, and we’re excited to bring together these two highly complementary companies,” said Carl E. Lee,
Jr., President and Chief Executive Officer of Snyder’s-Lance. “Diamond has excelled in delivering exceptional product
quality and innovation across their entire product portfolio, with products and ideas that work perfectly alongside our Snyder’s-Lance
brands. We plan to take full advantage of the combined sales forces of Snyder’s-Lance and Diamond to drive stronger top line
growth than either company could achieve alone. Additionally, we will have an opportunity to grow internationally with Diamond’s
existing European platform, bringing unique products to consumers in that market. By combining the resources and expertise of Snyder’s-Lance
and Diamond, we expect to see widening profit margins with additional scale and an expanding line of our better-for-you products.
We welcome the Diamond team to the Snyder’s-Lance family and look forward to winning together.”
“The combination of Diamond and Snyder’s-Lance
provides the opportunity to create significant value for our stockholders and offers immediate benefits for consumers,” said
Brian J. Driscoll, President and Chief Executive Officer of Diamond Foods. “This transaction will create a diversified, branded
snacking portfolio with greater operating scale. In addition, we expect the transaction will provide us with greater resources
to further develop new product innovation and broaden our geographic reach and route to market across complementary customer bases.
We are excited about the opportunities this combination will create for consumers and our stockholders.”
Compelling Strategic Rationale
Snyder’s-Lance believes the combined company will
have a significantly expanded portfolio and enhanced capabilities, including:
| · | Broad Array
of Iconic Snacking Brands - The new Snyder’s-Lance will offer an enhanced
portfolio of iconic brands including: Snyder’s of Hanover®, Kettle
Brand®, KETTLE® Chips, Lance®, Pop Secret®, Cape Cod®, Snack
Factory® Pretzel Crisps®, Emerald® nuts, Late July® and Diamond of
California® nuts, among others |
| · | International Expansion - Opportunities for geographic expansion beginning with Diamond Foods UK presence with
future reach across Europe |
| · | Expanded Better-For-You Presence – The transaction will build upon Snyder’s-Lance’s current
“better-for-you” credentials with more brands and products, aligning to important consumer trends with a diversified
portfolio of non-GMO and organic branded products |
| · | Increased Scale – The combination is expected to provide deeper retailer partnerships and a larger presence
in snacks, deli and center of store locations. Product distribution is also expected to expand with opportunities in natural, convenience
store, food service and other channels |
| · | Enhanced Operational Platform – The transaction brings together two highly complementary businesses and
scalable infrastructure across distribution, manufacturing and procurement |
| · | Strengthened Capabilities – Strategic combination creates ability to leverage the talents of two robust
teams through best practices and knowledge sharing |
Additional Details
Completion of the transaction is subject to approval
by both Snyder’s-Lance and Diamond stockholders. In conjunction with the agreement, certain stockholders of each company
have entered into voting agreements and, subject to the agreements’ terms and conditions, have agreed to vote their shares
in favor of the transaction. After close of the transaction, Brian J. Driscoll, President and CEO of Diamond Foods, will join the
board of directors of Snyder’s- Lance.
Snyder’s Lance expects to continue to pay a dividend
of $0.64 per share.
The transaction is expected to close in early 2016,
subject to stockholder and regulatory approvals and other customary closing conditions.
Advisors
Morgan Stanley & Co LLC acted as financial advisor to Snyder’s-Lance.
Deutsche Bank Securities, Inc. was advisor to the board and provided a fairness opinion to the Board of Directors of Snyder’s-Lance.
Snyder’s-Lance intends to fund the transaction through a combination of cash on hand, existing credit facilities, and fully
committed financing provided by BofA Merrill Lynch. Troutman Sanders acted as legal counsel to Snyder’s-Lance.
Credit Suisse acted as financial advisor to Diamond.
Fenwick & West acted as legal counsel to Diamond.
Conference Call
and Webcast
Snyder’s-Lance
will host a conference call to discuss the transaction, scheduled to begin at 10:00am eastern time on October 28, 2015. The conference
call and accompanying slide presentation will be webcast live through the Investor Relations section of Snyder’s-Lance website
at www.snyderslance.com. To participate in the conference call, the dial-in number is (844) 830-1960 for U.S. callers or (315)
625-6883 for international callers. The conference ID is 69017426. A continuous telephone replay of the call will be available
between 2:00pm on October 28, 2015 and midnight on November 4, 2015. The replay telephone number is (855) 859-2056 for U.S. callers
or (404) 537-3406 for international callers. The replay access code is 69017426. Investors may also access a web-based replay of
the conference call at www.snyderslance.com.
About Snyder’s-Lance,
Inc.
Snyder’s-Lance, Inc., headquartered in Charlotte,
NC, manufactures and markets snack foods throughout the United States and internationally. Snyder’s-Lance’s products
include pretzels, sandwich crackers, pretzel crackers, potato chips, cookies, tortilla chips, restaurant style crackers, nuts and
other snacks. Snyder’s-Lance has manufacturing facilities in North Carolina, Pennsylvania, Indiana, Georgia, Arizona, Massachusetts,
Florida, Ohio and Wisconsin. Products are sold under the Snyder’s of Hanover®, Lance®, Cape Cod®, Snack Factory®
Pretzel Crisps®, Late July®,
Krunchers!®, Tom’s®, Archway®, Jays®,
Stella D’oro®, Eatsmart™, O-Ke-Doke®, and other brand names along with a number of third party brands. Products
are distributed nationally through grocery and mass merchandisers, convenience stores, club stores, food service outlets and other
channels. For more information, visit the Company’s corporate web site: www.snyderslance.com.
Snyder’s-Lance Contact: Mark Carter, VP Strategic
Initiatives and Investor Relations Officer (704) 557-8386
About Diamond Foods
Diamond Foods is a snack food and culinary nut company
focused on making innovative, convenient and delicious snacks as well as culinary nuts true to our 100-year plus heritage. Diamond
sells its products under five different widely-recognized brand names: Diamond of California®, Kettle Brand® and KETTLE®
Chips, Emerald® and Pop Secret®. Diamond’s mission is to honor nature’s ingredients by making food that people
love. Diamond is proud of our offerings, many of which are non-GMO Project verified and free of artificial flavors and preservatives,
and is committed to making great tasting products for our consumers. Diamond’s products are distributed in a wide range of
stores where snacks and culinary nuts are sold. For more information, visit the Company’s corporate web site: http://www.diamondfoods.com.
Diamond Foods Contact: Katie Turner, ICR, (415)-230-7952
Cautionary Information about Forward Looking Statements
This news release contains statements which may be forward
looking within the meaning of applicable securities laws. The statements include the expected completion of the acquisition of
Diamond Foods, Inc., the time frame in which the acquisition will occur, and the expected benefits to Snyder’s-Lance from
completing the acquisition. The statements are subject to a number of risks and uncertainties. Factors that could cause actual
results to differ include, among other things, the possibility that stockholder approval may not be obtained or that regulatory
approval of the proposed acquisition or that other conditions to the closing of the merger may not be satisfied, the potential
impact on the business of Snyder’s Lance or Diamond Foods due to the announcement of the transaction, the occurrence of any
event, change or other circumstances that could give rise to the termination of the definitive agreement, difficulties with the
successful integration and realization of the anticipated benefits or synergies from the proposed acquisition, the ability of Snyder’s-Lance
to achieve its strategic initiatives, and general economic conditions. Therefore, actual results may differ materially and adversely
from those expressed in any forward-looking statements. In addition, actual results are subject to other risks and uncertainties
that relate more broadly to Snyder’s-Lance or Diamond Foods’ overall business, including those more fully described
in Snyder’s-Lance filings with the SEC including its annual report on Form 10-K for the fiscal year ended January 3, 2015,
and its most recent quarterly report filed on Form 10-Q for the quarter year ended July 4, 2015, and those more fully described
in Diamond Foods’ filings with the SEC, including its annual report on Form 10-K for the fiscal year ended July 31, 2015.
Except as required by law, neither Snyder’s-Lance nor Diamond Foods undertakes any obligation to update or revise publicly
any forward-looking statement as a result of new information, future developments or otherwise.
This news release also includes projections regarding
future revenues, earnings and other results which are based upon Snyder’s-Lance’s current expectations and assumptions,
which are subject to a number of risks and uncertainties. Factors that could cause actual results to differ include general economic
conditions; volatility in the
price or availability of inputs, including raw materials,
packaging, energy and labor; price competition and industry consolidation; changes in our top retail customer relationships; failure
to successfully integrate acquisitions; loss of key personnel; failure to execute and accomplish our strategy; concerns with the
safety and quality of certain food products or ingredients; adulterated, misbranded or mislabeled products or product recalls;
disruption of our supply chain or information technology systems; improper use of social media; changes in consumer preferences
and tastes or inability to innovate or market our products effectively; reliance on distribution through a significant number of
independent business owners; protection of our trademarks and other intellectual property rights; impairment in the carrying value
of goodwill or other intangible assets; new regulations or legislation; interest and foreign currency exchange rate volatility
and the interests of a few individuals who control a significant portion of our outstanding shares of common stock may conflict
with those of other stockholders, which have been discussed in greater detail in the most recent Form 10-K and other reports filed
by Snyder’s Lance with the Securities and Exchange Commission.
Additional Information and Where to Find it
In connection with the proposed transaction between Diamond
Foods, Inc. (“Diamond Foods”) and Snyder’s-Lance, Inc. (“Snyder’s-Lance”), Diamond Foods and
Snyder’s-Lance intend to file a joint proxy statement/prospectus and relevant materials concerning the proposed transaction
with the SEC relating to the solicitation of proxies to vote at respective special meeting of stockholders of Diamond Foods and
Snyder’s-Lance to be called to approve the proposed transaction. The definitive proxy statement will be mailed to the stockholders
of the Company in advance of the special meeting. STOCKHOLDERS OF Diamond Foods and SNYDER’S-LANCE
ARE URGED TO READ ALL RELEVANT DOCUMENTS FILED WITH THE SEC, INCLUDING the DEFINITIVE JOINT PROXY STATEMENT/PROSPECTUS,
BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders will be able to
obtain the documents free of charge at the SEC’s web site, http://www.sec.gov. Documents will also be available for free
from Diamond Foods at www.diamondfoods.com and from Snyder’s-Lance’s at www.snyderlance.com.
Diamond Foods, Snyder’s-Lance and their respective directors
and executive officers may be deemed to be participants in the solicitation of proxies with respect of the proposed transaction.
Information about the directors and executive officers of Diamond Foods, including their respective interest in security holding
of Diamond Foods, is set forth in the proxy statement for Diamond Foods’ 2015 Annual Meeting of Stockholders, which was filed
with the SEC on November 26, 2014. Information about the directors and executive officers of Snyder’s-Lance is set forth
in the proxy statement for Snyder’s-Lance’s 2015 Annual Meeting of Stockholders, which was filed with the SEC on April
1, 2015 and its Current Report on Form 8-K filed with the SEC on October 1, 2015. Investors may obtain additional information regarding
the interest of such participants by reading the definitive joint proxy statement/prospectus regarding the transaction when it
becomes available. These documents can be obtained free of charge from the sources indicated above.
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