AGREEMENT AND PLAN OF MERGER
among
LABTEC INC.
LOGITECH INTERNATIONAL S.A.
LOGITECH INC.
and
THUNDER ACQUISITION CORP.
Dated February 7, 2001
TABLE OF CONTENTS
PAGE
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Preamble..............................................................................................................1
Recitals..............................................................................................................1
Article I The Offer...................................................................................................2
Section 1.1 The Offer..................................................................................2
Section 1.2 Action by the Company......................................................................4
Section 1.3 Directors..................................................................................5
Section 1.4 Stockholder Agreement......................................................................6
Section 1.5 Material Adverse Effect....................................................................6
Section 1.6 Substantial Adverse Effect.................................................................7
Article II The Merger.................................................................................................8
Section 2.1 The Merger.................................................................................8
Section 2.2 Effective Time.............................................................................8
Section 2.3 Closing....................................................................................8
Section 2.4 Conversion of Shares.......................................................................8
Section 2.5 Dissenters' Rights........................................................................10
Section 2.6 Exchange of Certificates..................................................................10
Section 2.7 No Further Ownership Rights in Shares.....................................................11
Section 2.8 No Liability..............................................................................12
Section 2.9 Lost, Stolen or Destroyed Certificates....................................................12
Section 2.10 Withholding Rights........................................................................12
Section 2.11 Termination of Exchange Fund; Charges and Expenses........................................13
Section 2.12 Treatment of Company Options..............................................................13
Article III The Surviving Corporation................................................................................13
Section 3.1 Articles of Organization..................................................................13
Section 3.2 Bylaws....................................................................................13
Section 3.3 Directors and Officers....................................................................13
Section 3.4 Purpose...................................................................................14
Section 3.5 Authorized Stock..........................................................................14
Article IV Representations and Warranties of the Company.............................................................14
Section 4.1 Corporate Existence and Power; Organizational Documents...................................14
Section 4.2 Corporate Authorization; Binding Effect...................................................15
Section 4.3 Governmental Authorization................................................................15
Section 4.4 Non-Contravention.........................................................................15
Section 4.5 Capitalization............................................................................16
Section 4.6 Subsidiaries..............................................................................17
Section 4.7 Public Information........................................................................17
Section 4.7A No Undisclosed Liabilities................................................................16
TABLE OF CONTENTS
(CONTINUED)
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Section 4.8 Absence of Certain Changes................................................................18
Section 4.9 Litigation................................................................................19
Section 4.10 Tax.......................................................................................19
Section 4.11 Employee Benefit Plans; Employee Matters..................................................21
Section 4.12 Compliance with Laws; Licenses............................................................23
Section 4.13 Environment...............................................................................23
Section 4.14 Restrictions on Business Activities.......................................................24
Section 4.15 Title to Property.........................................................................24
Section 4.16 Intellectual Property.....................................................................25
Section 4.16A Agreements, Contracts and Commitments.....................................................25
Section 4.17 Insurance.................................................................................28
Section 4.18 Customers.................................................................................28
Section 4.19 Finders' Fees.............................................................................28
Section 4.20 Opinion of Financial Advisor..............................................................29
Section 4.21 State Takeover Statutes...................................................................29
Section 4.22 Company Disclosure Documents..............................................................29
Article V Representations and Warranties of Logitech Subsidiary and Merger Sub.......................................30
Section 5.1 Corporate Existence and Power; Organizational Documents...................................30
Section 5.2 Corporate Authorization; Binding Effect...................................................30
Section 5.3 Governmental Authorization................................................................31
Section 5.4 Non-Contravention.........................................................................31
Section 5.5 Finders' Fees.............................................................................32
Section 5.6 Financing.................................................................................32
Section 5.7 Interested Stockholder....................................................................32
Section 5.8 Merger Sub's Operations...................................................................32
Section 5.9 Capitalization............................................................................32
Section 5.10 Public Information........................................................................33
Section 5.11 Absence of Certain Changes................................................................34
Section 5.12 Litigation................................................................................34
Section 5.13 Compliance with Laws; Licenses............................................................34
Section 5.14 Offer Documents...........................................................................35
Article VI Covenants of the Company..................................................................................35
Section 6.1 Conduct of the Company....................................................................35
Section 6.2 Access to Information.....................................................................38
Section 6.3 No Solicitation...........................................................................39
Section 6.4 Termination of 401(k) Plan................................................................40
Article VII Covenants of Logitech Subsidiary and Merger Sub..........................................................41
Section 7.1 Obligations of Merger Sub.................................................................41
Section 7.2 Director and Officer Liability............................................................41
Section 7.3 Matters Regarding ADRs....................................................................41
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TABLE OF CONTENTS
(CONTINUED)
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Section 7.4 Expenses of the Company...................................................................42
Article VIII Covenants of the Parties................................................................................42
Section 8.1 Commercially Reasonable Efforts; Notice...................................................42
Section 8.2 Conveyance Tax Filings....................................................................43
Section 8.3 Conveyance Taxes..........................................................................43
Section 8.4 Third Party Consents......................................................................43
Section 8.5 Special Meeting; Company Disclosure Documents.............................................43
Section 8.6 Affiliates of the Company.................................................................45
Article IX Conditions to the Merger..................................................................................45
Section 9.1 Conditions to Obligations of Each Party...................................................45
Article X Termination................................................................................................46
Section 10.1 Termination...............................................................................46
Section 10.2 Effect of Termination.....................................................................50
Article XI Miscellaneous.............................................................................................51
Section 11.1 Costs and Expenses........................................................................51
Section 11.2 Notices...................................................................................52
Section 11.3 Survival of Representations and Warranties................................................53
Section 11.4 Amendment.................................................................................53
Section 11.5 No Waiver.................................................................................54
Section 11.6 Section Headings..........................................................................54
Section 11.7 Successors and Assigns; Guarantee of Merger Sub Obligations...............................54
Section 11.8 Governing Law.............................................................................54
Section 11.9 Jurisdiction..............................................................................55
Section 11.10 Severability..............................................................................55
Section 11.11 Parties in Interest.......................................................................55
Section 11.12 Public Announcements......................................................................55
Section 11.13 Entire Agreement..........................................................................56
Section 11.14 Counterparts; Effectiveness...............................................................56
Signatures..........................................................................................................S-1
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TABLE OF CONTENTS
(CONTINUED)
Company Disclosure Schedules
----------------------------
Schedule 4.3 Governmental Authorizations
Schedule 4.4 Non-Contravention
Schedule 4.5 Capitalization
Schedule 4.6 Company Subsidiaries
Schedule 4.7 Public Information
Schedule 4.7A No Undisclosed Liabilities
Schedule 4.8 Absence of Certain Changes
Schedule 4.9 Litigation
Schedule 4.11(a) Employee Benefit Plans
Schedule 4.11(d) ERISA Obligations
Schedule 4.15 Real Property
Schedule 4.16 Company Intellectual Property
Schedule 4.16A Agreements, Contracts and Commitments
Schedule 4.18 Customers Schedule 4.21 State Takeover Statutes
Schedule 6.1 Conduct of the Company
Annex
-----
Annex A.. Conditions to the Offer
Exhibits
--------
Exhibit A Stockholder Agreement
Exhibit B Form of Company Affiliate Letter
AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (as the same may be amended,
supplemented or modified in accordance with the terms hereof, this "Agreement")
dated February 7, 2001 is among Labtec Inc., a Massachusetts corporation
(together with its successor and assigns, the "Company"), for the purposes of
Sections 1.1(b) and 11.7 only, Logitech International S.A., a Swiss corporation
(together with its successor and assigns, "Parent"), Logitech Inc., a California
corporation and a wholly-owned subsidiary of Parent (together with its
successors and assigns, "Logitech Subsidiary"), and Thunder Acquisition Corp., a
Massachusetts corporation and a direct wholly-owned subsidiary of Logitech
Subsidiary (together with its successor and assigns, "Merger Sub").
Recitals
--------
The parties desire that Logitech Subsidiary acquire the Company, upon
the terms and conditions set forth herein and in accordance with the
Massachusetts Business Corporation Law and Chapter 156B of the Massachusetts
General Laws (collectively, the "MBCL").
In furtherance of such acquisition, it is proposed that Merger Sub
shall, and Logitech Subsidiary shall cause Merger Sub to, make an exchange offer
(as it may be amended from time-to-time as permitted under this Agreement, the
"Offer") to acquire, upon the terms and subject to the conditions of this
Agreement and the Offer, all of the issued and outstanding shares (each, a
"Share" and collectively, the "Shares") of the Company's common stock, par value
$.01 per share ("Company Common Stock"), at a price for each Share of (i) $11.00
in cash (such price, or such higher price per share in cash that may be made
pursuant to the Offer, is referred to as the "Cash Portion"), and (ii) a
fraction of an American depositary share (each, a "Parent ADS") of Parent equal
to the Stock Portion (as defined in Section 1.1(d) below) (each Parent ADS
representing one-tenth of a registered share, par value CHF 10 per share, of
Parent and evidenced by an American depositary receipt ("Parent ADR") issued in
accordance with the Deposit Agreement dated as of March 27, 1997 among Parent,
The Bank of New York, as depositary, and all owners from time to time of Parent
ADSs, as amended on July 5, 2000 (as so amended, the "Deposit Agreement").
Also in furtherance of such acquisition, it is proposed that, following
the consummation of the Offer, Merger Sub will merge with and into the Company
(the "Merger") and that the Shares not tendered and accepted pursuant to the
Offer will thereupon be converted into the right to receive both cash and a
fraction of a Parent ADS in the amounts set forth in Section 2.4(c) hereof.
The respective boards of directors of the Company, Parent, Logitech
Subsidiary and Merger Sub have authorized, adopted and approved this Agreement
and deem this Agreement, the Offer and the Merger desirable and in the best
interests of their respective corporations and stockholders.
This Agreement and the Merger have been adopted and approved by
Logitech Subsidiary as the sole stockholder of Merger Sub and will be submitted
to the stockholders of the Company for their adoption and approval.
Concurrently herewith, Logitech Subsidiary and two stockholders of the
Company have entered into a Stockholder Agreement (the "Stockholder Agreement")
in the form attached hereto as Exhibit A, providing that, among other things,
such stockholders will tender their Shares pursuant to the Offer and vote their
Shares and those Shares over which they have voting power in favor of the
adoption and approval of this Agreement, and that the Parent ADSs to be received
by such stockholders shall be subject to a contractual lock-up as provided
therein.
Agreement
---------
Logitech Subsidiary, Merger Sub and the Company agree as follows:
Article I
The Offer
---------
Section 1.1 The Offer.
(a) Provided that this Agreement shall not have been terminated and
subject to the provisions of this Agreement and the conditions set forth on
Annex A hereto, as promptly as practicable after the date hereof, but in no
event later than ten business days following the public announcement of the
terms of this Agreement, Merger Sub shall, and Logitech Subsidiary shall cause
Merger Sub to, commence, within the meaning of Rule 14d-2 under the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), the Offer. The obligation
of Merger Sub to, and of Logitech Subsidiary to cause Merger Sub to, accept for
payment any Shares tendered in the Offer shall be subject to the satisfaction of
only those conditions set forth on Annex A. The initial expiration date of the
Offer shall be the 20th "business day" (as such term is defined in Rule
14d-1(g)(3) under the Exchange Act) following the commencement of the Offer
(determined using Rules 14d-1(g)(3) and 14d-2 under the Exchange Act). Merger
Sub and Logitech Subsidiary expressly reserve the right to waive any condition
to the Offer or modify the terms of the Offer, except that, without the consent
of the Company, Merger Sub shall not, and Logitech Subsidiary shall not cause
Merger Sub to, (i) reduce the number of shares of Company Common Stock subject
to the Offer, (ii) reduce the Cash Portion or reduce the Stock Portion, (iii)
waive or change the Minimum Condition (as defined in Annex A), (iv) modify in
any manner adverse to the holders of Company Common Stock or add to the
conditions to the obligation of Merger Sub to, or Logitech Subsidiary to cause
Merger Sub to, accept for payment any Shares tendered in the Offer set forth in
Annex A, (v) except as provided in the next two sentences, extend the Offer or
(vi) change the form of consideration payable in the Offer. Notwithstanding the
foregoing, Merger Sub may, and Logitech Subsidiary may cause Merger Sub to,
without the consent of the Company, (x) extend the Offer for any period required
by any rule, regulation, interpretation of the Securities and Exchange
Commission (the "SEC") or the staff thereof; (y) from time to time extend the
Offer, if at the scheduled expiration date of the Offer any of the conditions to
the Offer shall not have been satisfied or waived, until such time as such
conditions are satisfied or waived; or (z) extend the Offer for any reason on
one or more occasions for an aggregate period of not more than 10 business days
beyond the latest expiration date that would otherwise be permitted under clause
(x) or (y) of this sentence if on such expiration date there shall not have been
tendered (and not properly withdrawn) at least 90%
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of the outstanding Shares on a Fully Diluted Basis. Logitech Subsidiary and
Merger Sub agree that, if any one or more of the conditions to the Offer set
forth on Annex A are not satisfied then, provided that such conditions are
reasonably capable of being satisfied, Merger Sub shall, at the request of the
Company, extend the Offer from time to time unless any such condition is no
longer reasonably capable of being satisfied or any such event has occurred;
provided, however, that in no event shall Merger Sub be required to extend the
Offer beyond July 15, 2001. Following expiration of the Offer, Merger Sub may,
and Logitech Subsidiary may cause Merger Sub to, make available a "subsequent
offering period" in accordance with Rule 14d-11 of the Exchange Act. On the
terms and subject to the conditions of the Offer and this Agreement, Merger Sub
shall, and Logitech Subsidiary shall cause Merger Sub to, accept for payment and
pay for all Shares validly tendered and not withdrawn pursuant to the Offer as
soon as practicable after the expiration of the Offer. With respect to any such
Shares the Cash Portion shall be net to the seller thereof in cash, subject to
reduction only for any applicable federal back-up withholding or stock transfer
taxes payable by such seller.
(b) On the date of commencement of the Offer, Parent shall file with
the SEC a Registration Statement on Form F-4, which will include a preliminary
prospectus containing the information required under Rule 14d-4(b) under the
Exchange Act to register the offer and sale of Registered Parent Shares
represented by Parent ADSs pursuant to the Offer (as the same may be
supplemented or amended, the "Form F-4"). On the date of commencement of the
Offer, Logitech Subsidiary and Merger Sub shall file with the SEC a Tender Offer
Statement on Schedule TO (together with any communications filed with the SEC
under cover of Schedule TO prior to commencement of the Offer in accordance with
Rule 14d-2(b) under the Exchange Act, and as such Schedule TO may be
supplemented or amended, the "Schedule TO") with respect to the Offer, which
shall contain an offer to purchase and a related letter of transmittal and
summary advertisement (such Schedule TO, the Form F-4 and the documents included
therein pursuant to which the Offer will be made, together with any supplements
or amendments thereto, the "Offer Documents"). Each of Logitech Subsidiary,
Merger Sub and the Company shall promptly correct any information provided by it
for use in the Offer Documents if and to the extent that such information shall
have become false or misleading in any material respect, and each of Logitech
Subsidiary and Merger Sub shall, upon becoming aware that such information shall
have become false or misleading in any material respect, take all steps
necessary to amend or supplement the Offer Documents and to cause the Schedule
TO and Form F-4 as so amended or supplemented to be filed with the SEC and for
the other Offer Documents, as so amended or supplemented, to be disseminated to
the Company's stockholders, in each case as and to the extent required by
applicable federal securities laws. Logitech Subsidiary and Merger Sub shall
give the Company and its counsel a reasonable opportunity to review and comment
on the Offer Documents prior to their being filed with the SEC or disseminated
to the stockholders of the Company. Logitech Subsidiary and Merger Sub shall
provide the Company and its counsel in writing with any comments Logitech
Subsidiary or Merger Sub or their counsel may receive from the SEC or its staff
with respect to the Offer Documents promptly after the receipt of such comments
and shall provide the Company and its counsel with a reasonable opportunity to
participate in the response of Logitech Subsidiary and/or Merger Sub to such
comments. Parent shall not issue certificates or scrip representing fractional
Parent ADSs
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pursuant to the Offer. Logitech Subsidiary will pay cash in lieu of fractional
Parent ADSs in accordance with the provision set forth in the last two sentences
of Section 2.4(d) hereof.
(c) Logitech Subsidiary and Merger Sub shall, and Logitech Subsidiary
shall cause Merger Sub to, provide or cause to be provided to the Exchange Agent
(as defined in Section 2.6 below) on, prior to or promptly after the expiration
of the Offer (and thereafter on a timely basis) Parent ADRs and funds necessary
to make payment for any Shares that Logitech Subsidiary or Merger Sub become
obligated to purchase pursuant to the Offer.
(d) The "Stock Portion" shall be determined as follows:
(i) if the Average Market Price (as defined below) is equal to
a price that is not more than $31.34 or not less than $25.64, the Stock
Portion shall be equal to (x) $7.00 divided by (y) the Average Market
Price;
(ii) if the Average Market Price is more than $31.34, the
Stock Portion shall be equal to 0.2234; and
(iii) if the Average Market Price is less than $25.64, the
Stock Portion shall be equal to 0.2730.
(e) "Average Market Price" means the average closing bid price for a
Parent ADS as reported by Bloomberg Financial Markets (or such other source as
the parties hereto shall agree in writing), on the 20 consecutive trading days
ending on and including the trading day that is three business days prior to the
day on which the Offer actually expires.
Section 1.2 Action by the Company.
(a) Subject to Section 6.3, the Company hereby (i) approves of and
consents to the Offer, (ii) represents that its board of directors (the "Company
Board"), at a meeting duly called and held, has (A) unanimously determined that
each of the Offer, the Merger and this Agreement are in the best interests of
the Company's stockholders, approved this Agreement and the transactions
contemplated hereby, including the Offer and the Merger, in all respects, and
(B) resolved to recommend acceptance of the Offer and approval and adoption of
this Agreement and the Merger by the Company's stockholders, and (iii) consents
to the inclusion of such recommendation and approval in the Offer Documents.
(b) On the date the Offer Documents are filed with the SEC, the Company
shall file with the SEC a Solicitation/Recommendation Statement on Schedule
14D-9 with respect to the Offer, including an information statement (such
Schedule 14D-9, as amended and supplemented from time to time, the "Schedule
14D-9") that shall describe the recommendations referred to in Section 1.2(a),
or any permitted withdrawal or modification in accordance with Section 6.3, and
shall mail the Schedule 14D-9, together with the Offer Documents that are
required to be so mailed, to the holders of Company Common Stock. Each of the
Company, Logitech Subsidiary and Merger Sub shall promptly correct any
information provided by it for use in the Schedule 14D-9 if and to the extent
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that such information shall have become false or misleading in any material
respect, and the Company shall, upon becoming aware that such information shall
have become false or misleading in any material respect, take all steps
necessary to amend or supplement the Schedule 14D-9 and to cause the Schedule
14D-9 as so amended or supplemented to be filed with the SEC and disseminated to
the Company's stockholders, in each case as and to the extent required by
applicable federal securities laws. The Company shall provide Logitech
Subsidiary and Merger Sub and their counsel in writing with any comments the
Company or its counsel may receive from the SEC or its staff with respect to the
Schedule 14D-9 promptly after the receipt of such comments, and shall give
Logitech Subsidiary and Merger Sub and their counsel a reasonable opportunity to
participate in the Company's response to such comments.
(c) In connection with the Offer, the Company shall cause its transfer
agent to furnish Merger Sub with a recent list of the names and addresses of the
holders of record of Shares, mailing labels and a securities position listing to
the extent within the Company's access. The Company shall also provide Merger
Sub with such additional information (including, without limitation, updated
lists of stockholders, mailing labels and securities position listings) and
assistance as Merger Sub may reasonably request in communicating the Offer to
the Company's stockholders. All such information shall be considered
Confidential Information (as such term is defined in the Confidentiality
Agreement dated as of October 20, 2000 (the "Confidentiality Agreement") between
Goldsmith Agio Helms & Lynner Ltd., on behalf of the Company, and Logitech
Subsidiary), which shall remain in full force and effect after the date hereof.
(d) Solely in connection with the tender and purchase of Shares
pursuant to the Offer and the consummation of the Merger, the Company hereby
waives any and all rights of first refusal it may have with respect to Shares
owned by, or issuable to, any person, other than rights to repurchase unvested
shares, if any, that may be held by persons pursuant to the grant of restricted
stock purchase rights or following exercise of employee stock options.
Section 1.3 Directors. Effective upon the acceptance for payment by
Merger Sub of any Shares, Merger Sub shall be entitled to designate the number
of directors, rounded up to the next whole number, to the Company Board that
equals the product of (i) the total number of directors on the Company Board
(giving effect to the election of any additional directors pursuant to this
Section or the resignation of any individuals who are directors on the date
hereof) and (ii) the percentage obtained by dividing the number of Shares
beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act),
other than shares beneficially owned by the Company, by Merger Sub by the total
number of Shares that are issued and outstanding at the time of such acceptance,
and the Company shall take all action necessary to cause Merger Sub's designees
to be elected or appointed to the Company Board. Effective upon such acceptance,
the Company shall use its best efforts to cause the individuals designated by
Logitech Subsidiary to constitute the same percentage as is on the Company Board
of (x) each committee of the Company Board, (y) each board of directors of each
subsidiary of the Company (subject to applicable law) and (z) each committee of
each such board of directors. Notwithstanding the foregoing, the Company shall
use its commercially reasonable efforts to ensure that two of the members of the
Company Board as of the date hereof (the "Continuing Directors") shall remain
members of such Board until the Effective Time (as
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defined in Section 2.2). If a Continuing Director resigns from the Company
Board, Logitech Subsidiary, Merger Sub and the Company shall permit the
remaining Continuing Director or Directors to appoint the resigning Director's
successor who shall be deemed to be a Continuing Director.
(b) The Company's obligations to appoint designees to the Company Board
shall be subject to Section 14(f) of the Exchange Act and Rule 14f-1 thereunder.
The Company shall promptly take all actions required pursuant to Section 14(f)
and Rule 14f-1 in order to fulfill its obligations under this Section 1.3 and
shall include in the Schedule 14D-9 such information with respect to the Company
and its officers and directors as is required under Section 14(f) and Rule 14f-1
to fulfill its obligations under this Section 1.3. Merger Sub shall, and
Logitech Subsidiary shall cause Merger Sub to, supply to the Company in writing
and be solely responsible for any information with respect to itself and its
nominees, officers, directors and affiliates required by Section 14(f) and Rule
14f-1.
(c) From and after the time, if any, that any of Merger Sub's designees
have been so elected or appointed to the Company Board (and prior to the
Effective Time), any amendment of this Agreement, any termination of this
Agreement by the Company, any extension of time for performance of any of the
obligations of Logitech Subsidiary or Merger Sub hereunder, any waiver of any
condition to the obligations of the Company or any of the Company's rights
hereunder or other action by the Company hereunder or in connection with the
transactions contemplated hereby shall require the concurrence of a majority of
the Continuing Directors.
Section 1.4 Stockholder Agreement. Concurrently with the execution
and delivery of this Agreement, Sun Multimedia Partners, L.P., a Delaware
limited partnership, and Sun Venture Capital Partners I, L.P., a Delaware
limited partnership (collectively, the "Principal Stockholders"), are each
executing and delivering a Stockholder Agreement.
Section 1.5 Material Adverse Effect. When used in connection with the
Company or any Company Subsidiaries (as defined in Section 4.6(a) below), or
Parent or any Parent Subsidiaries (as defined in Section 5.3 below), as the case
may be, the term "Material Adverse Effect" means any one or more changes,
effects, events or circumstances that, individually or when taken together with
all other such changes, effects, events or circumstances that occurred prior to
the date of determination (and are continuing as of such date), (a) is
materially adverse to the Company and the Company Subsidiaries or Parent and the
Parent Subsidiaries, as the case may be, in each instance taken as a whole, or
(b) prevents or materially delays the consummation of the transactions
contemplated hereby.
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Section 1.6 Substantial Adverse Effect. When used in this Agreement
in connection with the Company or any Company Subsidiaries or Parent or any
Parent Subsidiaries, as the case may be, the term "Substantial Adverse Effect"
means, as of any date, any one or more changes, effects, events or circumstances
that, individually or when taken together with all other such changes, effects,
events or circumstances that occurred prior to such date (and are continuing as
of such date), is materially adverse to the financial condition as of such date,
the results of operations through such date or properties on such date of the
Company and the Company Subsidiaries or Parent and the Parent Subsidiaries, as
the case may be, in each instance taken as a whole; provided, however, that in
no event shall a Substantial Adverse Effect include any one or more changes,
effects, events or circumstances to the extent they arise out of, result from or
are caused by:
(i) the announcement of this Agreement or any of the
transactions contemplated hereby, including, without limitation, any
action, suit or proceeding on or after the date hereof brought by a
current or former stockholder or current or former purported
stockholder of the Company against the Company or Parent or any of
their respective officers, directors or affiliates in connection with
this Agreement or any of the transactions contemplated hereby;
(ii) any change, effect, event or circumstance that generally
affects the PC peripheral sector;
(b) any change in the market price of Company Common Stock, Parent
Registered Shares or Parent ADRs;
(c) regional, national or global industry or economic conditions;
(d) regional, national or international financial markets or
conditions; or
(e) fluctuations in sales or profitability in the ordinary course of
business or the failure of the Company or Parent, as the case may be, to meet
analysts' expectations;
provided, further, however, that in no event shall a Substantial Adverse Effect,
as of any date, include any one or more changes, effects, events or
circumstances that is, as of such date, materially adverse to the prospects of
the Company and the Company Subsidiaries or Parent and Parent Subsidiaries, as
the case may be, in each instance taken as a whole on such date, except to the
extent that such change, effect, event or circumstance is materially adverse to
the financial condition as of such date, results of operations prior to such
date or properties on such date of the Company and the Company Subsidiaries or
Parent and the Parent Subsidiaries, as the case may be, in each instance taken
as a whole.
Article II
The Merger
----------
Section 2.1 The Merger. Upon the terms and subject to the conditions
set forth herein, at the Effective Time (as defined in Section 2.2 below),
Merger Sub shall be merged with and into the
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Company in accordance with the MBCL, whereupon the separate existence of Merger
Sub shall cease, and the Company shall be the surviving corporation (the
"Surviving Corporation").
Section 2.2 Effective Time. As soon as practicable after satisfaction
or, to the extent permitted hereunder, waiver of all conditions to the Merger
set forth in Article IX of this Agreement, the Company and Merger Sub shall file
the articles of merger with the Secretary of State of the Commonwealth of
Massachusetts and make all other filings or recordings required by the MBCL in
connection with the Merger. The Merger shall become effective on such date as
the articles of merger shall have been accepted for filing by the Secretary of
State of the Commonwealth of Massachusetts, or at such later date as is agreed
to in writing by the parties and as is specified in the articles of merger (the
"Effective Time"). From and after the Effective Time, the Surviving Corporation
shall possess all the rights, privileges, powers and franchises and be subject
to all of the restrictions, disabilities, liabilities and duties of the Company
and Merger Sub, all as provided under the MBCL.
Section 2.3 Closing. The closing of the Merger. (the "Closing") shall
take place at 10:00 a.m. on a date specified by the parties, which (subject to
the prior satisfaction or waiver of the conditions set forth in Section 9.1 of
this Agreement) shall be no later than the fifth business day after the day on
which the conditions set forth in Section 9.1 have been satisfied or waived, at
the offices of Wilson Sonsini Goodrich & Rosati, 650 Page Mill Road, Palo Alto,
California 94304, or at such other time, date or place as is agreed to in
writing by the parties (the "Closing Date").
Section 2.4 Conversion of Shares. At the Effective Time by virtue of
the Merger and without any action on the part of Logitech Subsidiary, Merger Sub
or any holder of Shares:
(i) Each share of Company Common Stock held by the Company as
treasury stock and each Share owned by Parent, Logitech Subsidiary,
Merger Sub or any other subsidiary of Parent immediately prior to the
Effective Time shall automatically be cancelled, retired and cease to
exist and no payment shall be made with respect thereto.
(ii) Each share of capital stock of Merger Sub outstanding
immediately prior to the Effective Time shall be converted into and
become one share of common stock of the Surviving Corporation with the
same rights, powers and privileges as the shares so converted and shall
constitute the only outstanding shares of capital stock of the
Surviving Corporation.
(b) Except as otherwise provided in Section 2.4(a), or as provided in
Section 2.5 with respect to Shares as to which appraisal rights shall have been
exercised, each Share outstanding immediately prior to the Effective Time shall
be converted into the right to receive (x) the Cash Portion in cash per Share
from the Surviving Corporation, without any interest thereon and (y) a fraction
of a Parent ADS equal to the Stock Portion (the Cash Portion and the Stock
Portion are collectively referred to as the "Merger Consideration"). From and
after the Effective Time, all such Shares shall no longer be outstanding and
shall automatically be cancelled, retired and cease to exist and each holder of
a certificate (a "Certificate") representing any such Shares shall cease to have
any
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rights with respect thereto, except the right to receive the Merger
Consideration therefor upon the surrender thereof in accordance with Section 2.6
hereof.
(c) No certificates or scrip representing fractional Parent ADSs shall
be issued upon the surrender for exchange of Certificates pursuant to this
Article II, no dividend or distribution of Parent shall relate to such
fractional interests, and such fractional interests will not entitle the owner
thereof to vote or to any rights of a holder of Parent ADSs. For purposes of
this Section 2.4(d), all fractional Parent ADSs to which a single record holder
would be entitled shall be aggregated and calculations shall be rounded to four
decimal places. Logitech Subsidiary shall pay to each former holder of Company
Common Stock an amount in cash equal to the product obtained by multiplying (x)
the fractional interest to which such former holder (after taking into account
all Shares held at the Effective Time by such holder) would otherwise be
entitled by (y) (i) the Average Market Price if the Average Market Price is not
more than $31.34 or not less than $25.64, (ii) $31.34 if the Average Market
Price is more than $31.34, or (iii) $25.64 if the Average Market Price is less
than $25.64. Logitech Subsidiary will deposit or will cause to be deposited a
sufficient amount of cash with the Exchange Agent to cover the payments required
to be made pursuant to this Section 2.4(d).
Section 2.4A Adjustments to the Stock Portion and the Cash Portion.
The Stock Portion and the Cash Portion shall be adjusted appropriately to
reflect the effect of any stock split, reverse stock split, stock dividend
(including any dividend or distribution of securities convertible into Company
Common Stock), extraordinary cash dividends, reorganization, recapitalization,
reclassification, combination, exchange of shares or other like change with
respect to the Company Common Stock occurring on or after the date hereof and
prior to the Effective Time. The Stock Portion shall be adjusted appropriately
to reflect the effect of any stock split, reverse stock split, stock dividend
(including any dividend or distribution of securities convertible into Parent
Registered Shares or Parent ADSs), extraordinary cash dividends, reorganization,
recapitalization, reclassification, combination, exchange of shares or other
like change with respect to the Parent Registered Shares or the Parent ADSs
occurring on or after the date hereof and prior to the Effective Time.
Section 2.5 Dissenters' Rights.
(a) Any Shares that are outstanding immediately prior to the Effective
Time and that are held by a holder of Shares who has not voted such Shares to
adopt and approve this Agreement and who has properly exercised, preserved and
perfected dissenters' rights with respect to such Shares in accordance with the
MBCL, including Sections 86 through 98 thereof (the "Dissenting Provisions")
and, as of the Effective Time, has neither effectively withdrawn nor lost its
right to exercise such dissenters' rights ("Dissenting Shares"), will not be
converted into or represent a right to receive the Merger Consideration pursuant
to Section 2.4(c), but the holder thereof will be entitled to payment of the
fair value of such Dissenting Shares in accordance with the Dissenting
Provisions.
(b) If any holder of Shares who demands dissenters' rights with respect
to such holder's Shares under the MBCL effectively withdraws or loses (through
failure to perfect or otherwise) its dissenters' rights, then as of the
Effective Time or the occurrence of such event, whichever later
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occurs, such holder's Shares will automatically be converted into and represent
only the right to receive the Merger Consideration as provided in Section
2.4(c), without interest thereon, upon surrender of the certificate or
certificates formerly representing such Shares.
(c) The Company will give Logitech Subsidiary (x) prompt notice of any
written intent to demand payment of the fair value of any Shares, withdrawals of
such demands and any other instruments served pursuant to the MBCL received by
the Company and (y) the opportunity to direct all negotiations and proceedings
with respect to dissenters' rights under the MBCL. The Company may not
voluntarily make any payment with respect to any exercise of dissenters' rights
and may not, except with the prior written consent of Logitech Subsidiary,
settle or offer to settle any such dissenters' rights.
Section 2.6 Exchange of Certificates.
(a) Prior to the Effective Time, Logitech Subsidiary shall (i)
designate, or shall cause to be designated, a bank or trust company reasonably
acceptable to the Company to act as exchange agent for the payment of the Merger
Consideration (the "Exchange Agent") upon surrender of Certificates, (ii)
deposit, or cause to be deposited, with the Exchange Agent (A) an amount in cash
equal to the product of the Cash Portion and the number of Shares that are
issued and outstanding at the Effective Time and (B) ADRs representing a number
of Parent ADSs equal to the product of the Stock Portion and the number of
Shares outstanding at the Effective Time, and (iii) the cash amount payable in
lieu of fractional Shares in accordance with Section 2.4(d). For purposes of
determining the aggregate Merger Consideration to be so deposited, Parent shall
assume that, other than with respect to stockholders of the Company with respect
to whom the Company has been informed intend to exercise their appraisal rights
(the Company shall give Parent prompt notice of the receipt by the Company of
its receipt of notice of any such intent), Parent shall assume that no
stockholder of the Company shall perfect any right of appraisal of his, her or
its shares. If for any reason the Exchange Fund is inadequate to pay the amounts
to which holders of Shares shall be entitled under this Section 2.6(a), Logitech
Subsidiary shall take all steps necessary to enable or cause the Surviving
Corporation promptly to deposit additional cash with the Exchange Agent
sufficient to make all payments required under this Agreement, and Logitech
Subsidiary and the Surviving Corporation shall in any event be liable for
payment thereof. The Exchange Fund shall not be used for any purpose except as
expressly provided in this Agreement.
(b) As soon as reasonably practicable after the Effective Time, the
Surviving Corporation shall cause the Exchange Agent to mail to each holder of
record of a Certificate that immediately prior to the Effective Time represented
outstanding Shares whose shares were converted into the right to receive Merger
Consideration pursuant to Section 2.4(c):
(i) a letter of transmittal (which shall specify that delivery
shall be effected, and risk of loss and title to the Certificates held
by such person shall pass, only upon delivery of the Certificates to
the Exchange Agent and shall be in customary form and have such other
provisions as Logitech Subsidiary may reasonably specify); and
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(ii) instructions for use in effecting the surrender of the
Certificates in exchange for the Merger Consideration.
(c) Upon surrender of a Certificate for cancellation to the Exchange
Agent, together with such letter of transmittal, duly completed and validly
executed, and such other documents as may reasonably be required by the Exchange
Agent, the holder of such Certificate shall be entitled to receive in exchange
therefor an amount equal to the product of the Merger Consideration and the
number of Shares represented by such Certificate, and the Certificate so
surrendered shall forthwith be cancelled. In the event of a transfer of
ownership of Shares that is not registered in the stock transfer books of the
Company, the proper amount of cash and Parent ADSs may be paid in exchange
therefor to a person other than the person in whose name the Certificate so
surrendered is registered if such Certificate shall be properly endorsed or
otherwise be in proper form for transfer and the person requesting such payment
shall pay any transfer or other taxes required by reason of the payment to a
person other than the registered holder of such Certificate the Merger
Consideration or establish to the satisfaction of Logitech Subsidiary that such
tax has been paid or is not applicable. No interest shall be paid or shall
accrue on the cash payable upon surrender of any Certificate.
Section 2.7 No Further Ownership Rights in Shares The Merger.
Consideration paid upon the surrender of a Certificate in accordance with the
terms of this Article II shall be deemed to have been paid in full satisfaction
of all rights pertaining to the Shares formerly represented by such Certificate.
At the Effective Time the stock transfer books of the Company shall be closed,
and there shall be no further registration of transfers on the stock transfer
books of the Surviving Corporation of the Shares that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation or the Exchange Agent
for transfer or any other reason, they shall be cancelled and exchanged as
provided in this Article II.
Section 2.8 No Liability. To the fullest extent permitted by applicable
law, none of Parent, Logitech Subsidiary, Merger Sub, the Company or the
Exchange Agent shall be liable to any person in respect of any cash or Parent
ADSs from the Exchange Fund delivered to a public official pursuant to any
applicable abandoned property, escheat or similar law. If any Certificates shall
not have been surrendered prior to six years after the Effective Time (or
immediately prior to such earlier date on which any Merger Consideration would
otherwise escheat to or became the property of any Governmental Entity (as
defined in Section 4.3 below)), any such Merger Consideration in respect thereof
shall, to the fullest extent permitted by applicable law, become the property of
the Surviving Corporation, free and clear of all claims or interests of any
person previously entitled thereto.
Section 2.9 Lost, Stolen or Destroyed Certificates. In the event that
any Certificate shall have been lost, stolen or destroyed, the Surviving
Corporation or Exchange Agent shall pay the Merger Consideration in exchange for
such lost, stolen or destroyed Certificate, upon the making of an affidavit of
that fact by the holder thereof in form and substance reasonably satisfactory to
the Surviving Corporation or Exchange Agent, as the case may be; provided,
however, that the Surviving Corporation may, in its discretion and as a
condition precedent to the payment of such Merger Consideration, require the
owner of such lost, stolen or destroyed Certificate to deliver a
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bond in such sum as the Surviving Corporation may reasonably direct as indemnity
against any claim that may be made against the Surviving Corporation or the
Exchange Agent with respect to such Certificate.
Section 2.10 Withholding Rights Logitech. Subsidiary shall be entitled
to deduct and withhold from the consideration otherwise payable pursuant to this
Agreement such amounts as Logitech Subsidiary is required to deduct and withhold
with respect to the making of such payment under the Internal Revenue Code of
1986, as amended (the "Code"), or any provision of state, local or foreign tax
law. To the extent that amounts are so withheld by Logitech Subsidiary, such
withheld amounts shall be treated for all purposes of this Agreement as having
been paid to the holder of the Shares in respect of which such deduction and
withholding was made by Logitech Subsidiary.
Section 2.11 Termination of Exchange Fund; Charges and Expenses.
(a) Any portion of the Exchange Fund that remains undistributed to the
holders of Shares for six months after the Effective Time shall be returned to
Logitech Subsidiary, upon demand, and any holder of Shares shall look as a
general creditor only to Logitech Subsidiary for payment of such cash and Parent
ADSs to which such holder may be due subject to applicable law.
(b) The Surviving Corporation shall pay all charges and expenses,
including those of the Exchange Agent, in connection with the exchange of cash
and Parent ADSs for Shares.
Section 2.12 Treatment of Company Options Logitech. Subsidiary and the
Company shall take all actions necessary to provide that each outstanding
employee and/or director stock option to acquire shares of Company Common Stock
granted under or governed by the Company's Amended and Restated 1997 Stock
Option Plan, the Company's Amended and Restated Director Option Plan and the
Company's Amended and Restated 1993 Option Plan (collectively, the "Company
Option Plans"), whether or not such options are then exercisable and vested
(each such option a "Company Option"), shall, effective as of the consummation
of the Offer or the Effective Time, as the case may be (in accordance with the
terms of the Company Option Plan pursuant to which such Company Options were
granted), (a) become fully exercisable and vested, (b) represent an option
solely to acquire a unit consisting of (i) the Cash Portion and (ii) the Stock
Portion, and (c) have an exercise price per such unit equal to the exercise
price of such Company Option per share of Company Common Stock immediately prior
to the Effective Time. Unless exercised prior thereto, all of the Company
Options shall terminate at the Effective Time.
Article III
The Surviving Corporation
-------------------------
Section 3.1 Articles of Organization. The articles of organization of
the Company in effect at the Effective Time shall be the articles of
organization of the Surviving Corporation until amended in accordance with
applicable law.
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Section 3.2 Bylaws. The bylaws of Merger Sub in effect at the Effective
Time shall be the bylaws of the Surviving Corporation until amended in
accordance with applicable law.
Section 3.3 Directors and Officers. From and after the Effective
Time, the directors of Merger Sub at the Effective Time shall be the initial
directors of the Surviving Corporation and the officers of Merger Sub at the
Effective Time shall be the initial officers of the Surviving Corporation, in
each case until their respective successors are duly elected and qualified or
until their earlier resignation or removal.
Section 3.4 Purpose. From and after the Effective Time, the purpose
of the Surviving Corporation shall be as set forth in Article II of the articles
of organization of the Surviving Corporation.
Section 3.5 Authorized Stock. From and after the Effective Time, the
total number of shares of stock that the Surviving Corporation shall be
authorized to issue, the par value of the shares of stock that the Surviving
Corporation shall be authorized to issue and a description of the preferences,
voting powers, qualifications and special or relative rights or privileges of
each class of stock of the Surviving Corporation or any series thereof shall
each be as set forth in the articles of organization of the Surviving
Corporation.
Article IV
Representations and Warranties of the Company
---------------------------------------------
The Company represents and warrants to Logitech Subsidiary and Merger
Sub that:
Section 4.1 Corporate Existence and Power; Organizational Documents.
The Company is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts and has all
corporate power and authority to own its properties and assets and to carry on
its business as presently conducted. The Company is duly qualified to do
business as a foreign corporation and is in good standing in each jurisdiction
where the character of the property owned or leased by it or the nature of its
activities makes such qualification necessary, except where the failure to be so
qualified would not, individually or in the aggregate, have a Material Adverse
Effect.
(b) The Company has previously furnished to Logitech Subsidiary a
complete and correct copy of its articles of organization and bylaws, each as
amended to date (together, the "Company Charter Documents"). The Company Charter
Documents and the organizational documents of each Company Subsidiary (as
defined in Section 4.6 below) are in full force and effect. The Company is not
in violation of any of the provisions of the Company Charter Documents, and no
Company Subsidiary is in violation of its equivalent organizational documents
except where the violation of the Company Charter Documents or any such
organizational documents of a Company Subsidiary would not, individually or in
the aggregate, have a Material Adverse Effect.
Section 4.2 Corporate Authorization; Binding Effect. The Company has
the corporate power to execute, deliver and, subject, with respect to the
Merger, to approval of the stockholders of
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the Company of the Merger (if required), perform this Agreement and all other
documents executed and delivered or to be executed and delivered by it pursuant
to this Agreement, and, subject, with respect to the Merger, to approval of the
stockholders of the Company of the Merger (if required), has taken all necessary
corporate action to authorize the execution, delivery and performance by it of
this Agreement and such related documents. This Agreement has been duly executed
and delivered by the Company and, assuming due and valid authorization,
execution and delivery by the other parties hereto, constitutes a valid and
binding obligation of the Company, enforceable against the Company in accordance
with its terms, except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws and principles now or hereafter in effect, affecting
creditors' rights generally, (b) rules or principles of equity affecting the
enforcement of obligations generally, whether at law, in equity or otherwise, or
(c) the exercise of the discretionary powers of any court or other authority
before which a proceeding may be brought seeking equitable remedies, including
specific performance and injunctive relief.
Section 4.3 Governmental Authorization. Except as set forth in Schedule
4.3, the execution, delivery and performance by the Company of this Agreement
and the consummation by the Company of the transactions contemplated hereby do
not require the Company to obtain any consent of, or to make any filing with,
any governmental body, agency, official or authority (each, a "Governmental
Entity") other than: (a) the filing of the articles of merger in accordance with
the MBCL, (b) compliance with any applicable requirements of the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the applicable antitrust or competition laws and regulations of
jurisdictions outside the United States (the "Foreign Filings"), (c) compliance
with any applicable requirements of the Nasdaq Over-the-Counter Market or the
Exchange Act, including without limitation, the filing with the SEC of the
Schedule 14D-9 and a Schedule 14A, proxy statement, proxy card and other related
materials in connection with the Special Meeting (as defined in Section 6.2
below) and (d) such other consents and filings which, if not obtained or made,
would not have a Material Adverse Effect. Section
4.4 Non-Contravention. The execution, delivery and performance by the
Company of this Agreement and the consummation by the Company of the
transactions contemplated hereby do not and will not, except as set forth in
Schedule 4.4 and assuming compliance with the matters referred to in Section
4.3, (a) contravene or conflict with the articles of organization or bylaws of
the Company or the organizational documents of any Company Subsidiary, (b)
contravene or conflict with, or constitute a violation of, any provision of any
law, regulation, judgment, injunction, order or decree binding upon the Company
or any Company Subsidiary or any of their respective properties or assets, (c)
with or without the giving of notice or passage of time or both, constitute a
breach or default under, or impair the rights of the Company or any Company
Subsidiary under, or give any rights of termination, amendment, acceleration or
cancellation to any third parties under, any agreement, contract or other
instrument binding upon the Company or any Company Subsidiary or any License (as
defined in Section 4.12 below) held by the Company or any Company Subsidiary, or
(d) result in the creation or imposition of any lien (each, a "Lien") on any
asset of the Company or any Company Subsidiary, except with respect to the
foregoing clauses (c) or (d) such contraventions, conflicts, violations,
breaches, defaults or Liens which would not, individually or in the aggregate,
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have a Material Adverse Effect and will not materially impair the ability of the
Company to consummate the transactions contemplated hereby.
Section 4.5 Capitalization. The authorized capital stock of the Company
consists of 25,000,000 shares of Company Common Stock and 1,000,000 shares of
preferred stock, par value $.01 per share ("Preferred Stock"). There are (a)
4,014,982 shares of Company Common Stock issued and outstanding, (b) no shares
of Company Common Stock held by the Company in its treasury, and (c) 534,897
shares of Company Common Stock reserved for issuance pursuant to outstanding
stock options under the Company Option Plan. No shares of Preferred Stock are
issued or outstanding. All outstanding shares of capital stock of the Company
have been duly authorized and validly issued and are fully paid and
nonassessable. Except as set forth above or as set forth in Schedule 4.5, (i) no
shares of capital stock of the Company are issued, reserved for issuance or are
outstanding, (ii) no securities of the Company or of any Company Subsidiary
convertible into or exchangeable for shares of capital stock of the Company are
outstanding and (iii) there are no options or other rights to acquire from the
Company, and no obligation of the Company to issue, any capital stock or
securities convertible into or exchangeable for capital stock or voting
securities of the Company (the items in clauses (i), (ii) and (iii) being
referred to collectively as the "Company Securities"). Except as set forth in
Schedule 4.5, there are no outstanding obligations of the Company or any Company
Subsidiary to repurchase, redeem or otherwise acquire any Company Securities.
(b) Schedule 4.5 sets forth the following information with respect to
each Company Option outstanding as of the date of this Agreement: (i) the name
and address of the optionee; (ii) the number of shares of Company Common Stock
subject to such Company Option; (iii) the exercise price of such Company Option;
(iv) the date on which such Company Option was granted; and (v) the date on
which such Company Option expires. The Company has made available to Logitech
Subsidiary accurate and complete copy of the Company Option Plans pursuant to
which Company has granted Company Options that are currently outstanding and the
form of all stock option agreements evidencing such Company Options. The Company
Option Plans are the only plan, contract, arrangement or understanding currently
in force (x) pursuant to which the Company has granted currently outstanding
options or other rights to acquire Company Common Stock or other securities of
the Company or (y) the terms of which govern any such options or other rights.
Section 4.6 Subsidiaries. Each Company Subsidiary is duly organized,
validly existing and in good standing under the laws of its jurisdiction of
organization and has all power (corporate or other) and authority to own its
properties and assets and to carry on its business as presently conducted. Each
Company Subsidiary is duly qualified to do business and is in good standing in
each jurisdiction where the character of the property owned or leased by it or
the nature of its activities makes such qualification necessary, except where
the failure to be so qualified would not, individually or in the aggregate, have
a Material Adverse Effect. For purposes of this Agreement, "Company Subsidiary"
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are directly or
indirectly owned by the Company. Schedule 4.6 sets forth all Company
Subsidiaries and their respective jurisdictions of organization , authorized
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capitalization, the Company's ownership interest therein, and, to the knowledge
of the Company, the ownership interests of any other security holders of such
subsidiary. Except as set forth in Schedule 4.6, the Company does not own,
directly or indirectly, any securities or other ownership interests in any other
corporation or other entity.
(b) Except as set forth on Schedule 4.6, all of the outstanding capital
stock of, or other ownership interests in, each Company Subsidiary, is owned by
the Company, directly or indirectly, free and clear of all Liens. All of the
outstanding capital stock of each Company Subsidiary is duly authorized, validly
issued, fully paid and nonassessable. Except as set forth on Schedule 4.6, there
are no outstanding (i) securities of the Company or any Company Subsidiary
convertible into or exchangeable for shares of capital stock or other ownership
interests in any Company Subsidiary, or (ii) options or other rights to acquire
from the Company or any Company Subsidiary, and no other obligation of the
Company or any Company Subsidiary to issue, any capital stock or other ownership
interests in, or any securities convertible into or exchangeable for any capital
stock or ownership interests in, any Company Subsidiary (the items in clauses
(i) and (ii) being referred to collectively as the "Company Subsidiary
Securities"); and there are no outstanding obligations of the Company or any
Subsidiary to repurchase, redeem or otherwise acquire any outstanding Company
Subsidiary Securities.
Section 4.7 Public Information. The Company has made available to
Logitech Subsidiary a true and complete copy of each report, schedule,
registration statement and definitive proxy statement filed by it with the SEC
(as any such documents have since the time of their original filing been
amended, the "Company Filings") since March 31, 1999, which, except as set forth
on Schedule 4.7, are all the documents (other than preliminary material) that it
was required to file with the SEC since such date. As of their respective dates,
the Company Filings did not, and the Company's Quarterly Report on Form 10-Q for
the nine-month period ended December 31, 2000 (the "Third Quarter 10-Q") will
not, contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein, in the
light of the circumstances under which they were made, not misleading. As of
their respective dates, the Company Filings complied, and the Third Quarter 10-Q
will comply, in all material respects, with the applicable requirements of the
Securities Act of 1933 (the "Securities Act") and the Exchange Act and the rules
and regulations promulgated under such statutes. The financial statements
contained in the Company Filings and in the Company's press release dated
January 22, 2001 as released on PR Newswire (the "Third Quarter Release") were
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods indicated (except as may be
indicated in the notes thereto, or, in the case of unaudited financial
statements, as permitted by Form 10-Q), and fairly present in all material
respects the consolidated financial position of the Company and its consolidated
subsidiaries at said dates and the consolidated results of operations and cash
flows of the Company and its consolidated subsidiaries for the periods then
ended. For purposes of this Agreement, "Balance Sheet Date" means March 31,
2000.
Section 4.7A No Undisclosed Liabilities. Neither the Company nor any
Company Subsidiary has any liabilities (absolute, accrued, contingent or
otherwise) except (i) liabilities provided for in the Company's balance sheet as
of December 31, 2000 set forth in the Third Quarter
-16-
Release, (ii) liabilities incurred since December 31, 2000 in the ordinary
course of business, which liabilities in the aggregate do not materially affect
such December 31, 2000 balance sheet and (iii) liabilities set forth on Schedule
4.7A.
Section 4.8 Absence of Certain Changes. Since the Balance Sheet Date,
or except as set forth in Schedule 4.8, or as explicitly contemplated by this
Agreement, the Company and the Company Subsidiaries have conducted their
business in the ordinary course consistent with past practice and there has not
been:
(i) any Material Adverse Effect;
(ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to any shares of capital stock of
the Company, or, except in connection with the exercise of Company
Options pursuant to the Company's stock option and other compensation
plans and arrangements, any repurchase, redemption or other acquisition
by the Company or any Company Subsidiary of any outstanding shares of
capital stock or other securities of, or other ownership interests in,
the Company or any Company Subsidiary;
(iii) any incurrence, assumption or guarantee by the Company
or any Company Subsidiary of any indebtedness for borrowed money other
than in the ordinary course of business and in amounts and on terms
consistent in all material respects with past practices;
(iv) any creation or assumption by the Company or any Company
Subsidiary of any Lien on any asset other than in the ordinary course
of business consistent with past practice;
(v) any change in any method of accounting or accounting
practice by the Company or any Company Subsidiary, except for any such
change required by law or generally accepted accounting principles;
(vi) any (i) grant of any severance or termination pay to any
director, officer or employee of the Company or any Company Subsidiary,
(ii) entering into of any employment, deferred compensation or other
similar agreement (or any amendment to any such existing agreement)
with any director, officer or employee of the Company or any Company
Subsidiary, or (iii) increase in compensation, bonus or other benefits
payable to directors, officers or employees of the Company or any
Company Subsidiary, in each case, other than pursuant to employment
contracts or arrangements in effect on the Balance Sheet Date, Plans
(as defined in Section 4.11 below) in effect on the Balance Sheet Date,
or in the ordinary course of business consistent with past practices;
(vii) entry by the Company or any Company Subsidiary into any
licensing or other agreement with regard to the acquisition or
disposition of any Company Intellectual Property (as defined in Section
4.16) other than licenses in the ordinary course of business consistent
with past practice or any amendment or consent with respect to any
licensing agreement filed or required to be filed by the Company with
the SEC; or
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(viii) any revaluation by the Company of any of its material
assets, other than in the ordinary course of business.
Section 4.9 Litigation. Except as set forth in the Company Filings or
on Schedule 4.9, there is no action, suit, investigation or proceeding pending
against, or to the knowledge of the Company, threatened against, the Company or
any Company Subsidiary or any Plan (as defined in Section 4.11 below) or the
assets of any Plan or any of their respective properties before any court or
arbitrator or any Governmental Entity which, if determined or resolved adversely
to the Company or any Company Subsidiary in accordance with the plaintiff's
demands, could reasonably be expected to have a Material Adverse Effect.
Section 4.10 Tax Definition of Taxes. For the purposes of this
Agreement, "Tax" or "Taxes" refers to any and all federal, state, local and
foreign taxes, assessments and other governmental charges, duties, impositions
and liabilities relating to taxes, including taxes based upon or measured by
gross receipts, income, profits, sales, use and occupation, and value added, ad
valorem, transfer, franchise, withholding, payroll, recapture, employment,
excise and property taxes, together with all interest, penalties and additions
imposed with respect to such amounts and any obligations under any agreements or
arrangements with any other person with respect to such amounts and including
any liability for Taxes of a predecessor or transferor entity. (b) Tax Returns
and Audits.
(i) The Company and each Company Subsidiary have timely filed
all federal, state, local and foreign returns, estimates, forms,
information statements and reports ("Returns") relating to Taxes
required to be filed by the Company and each Company Subsidiary with
any Tax authority, except such Returns which are not, individually or
in the aggregate, material to the Company and its subsidiaries, taken
as a whole. All such Returns were correct and complete in all material
respects, and the Company and each Company Subsidiary have paid all
Taxes shown to be due on such Returns, other than any Taxes being
contested in good faith through appropriate procedures.
(ii) The Company and each Company Subsidiary have withheld
with respect to its employees or other persons all federal and state
income Taxes, Taxes pursuant to the Federal Insurance Contribution Act,
Taxes pursuant to the Federal Unemployment Tax Act and other Taxes
required to be withheld, except such Taxes with respect the failure to
so withhold would not, individually or in the aggregate, have a
Material Adverse Effect.
(iii) There is no material Tax nor is there any material Tax
deficiency outstanding, proposed or assessed against the Company or any
Company Subsidiary. Neither Company or any Company Subsidiary has
executed any unexpired waiver of any statute of limitations on or
extension of any period for the assessment or collection of any Tax.
(iv) To the knowledge of the Company, no audit or other
examination of any Return of the Company or any Company Subsidiary by
any Tax authority is presently in
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progress, nor has Company or any Company Subsidiary been notified of
any request for such an audit or other examination.
(v) No adjustment relating to any Returns filed or required to
be filed by the Company or any Company Subsidiary has been proposed in
writing, formally or informally, by any Tax authority to the Company or
any Company Subsidiary or any representative thereof.
(vi) Neither the Company nor any Company Subsidiary has any
liability for any material unpaid Taxes (whether or not required to be
shown on any Return) which has not been accrued for or reserved on the
Balance Sheet Date in accordance with generally accepted accounting
principles, consistently applied, whether asserted or unasserted,
contingent or otherwise, which are, individually or in the aggregate
material to Company, other than any liability for unpaid Taxes that may
have accrued since the Balance Sheet Date in connection with the
operation of the business of Company and its subsidiaries in the
ordinary course. There are no liens with respect to Taxes on any of the
assets of the Company or any Company Subsidiary, other than liens that
would not, individually or in the aggregate, have a Material Adverse
Effect, or customary liens for current Taxes not yet due and payable
(vii) There is no contract, agreement, plan or arrangement to which the
Company or any Company Subsidiary is a party; including but not limited
to the provisions of this Agreement, that, individually or
collectively, could give rise to the payment of any amount that would
not be deductible pursuant to Sections 280G, 404 or 162(m) of the Code.
There is no contract, agreement, plan or arrangement to which the
Company or any Company Subsidiary is a party or by which it is bound to
compensate any individual for excise taxes paid pursuant to Section
4999 of the Code.
(viii) Neither the Company nor any Company Subsidiary has
filed any consent agreement under Section 341(f) of the Code.
(ix) Neither the Company nor any Company Subsidiary is party
to or has any obligation under any tax sharing, tax indemnity or tax
allocation agreement or arrangement.
(x) Neither the Company nor any Company Subsidiary has
constituted either a "distributing corporation" or a "controlled
corporation" in a distribution of stock qualifying for tax-free
treatment under Section 355 of the Code (x) since February 7, 1999 or
(y) in a distribution which could otherwise constitute part of a "plan"
or "series of related transactions" (within the meaning of Section
355(e) of the Code) in conjunction with the Merger.
(xi) To the knowledge of the Company, the Company and each
Company Subsidiary is in substantial compliance with the material terms
and conditions of agreements with any foreign taxing authority to which
Company or a subsidiary is a party relating to any
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tax exemption, tax holiday or other reduction of tax and the
consummation of the Merger will not have an adverse effect on the
continued validity and effectiveness of such agreements.
Section 4.11 Employee Benefit Plans; Employee Matters.
(a) Except as set forth in the Company Filings or on Schedule 4.11(a),
all employee benefit plans that have ever been maintained, contributed to, or
required to be contributed to, by the Company or any Company Subsidiary for the
benefit of employees or former employees of the Company or any Company
Subsidiaries ("Plans") have been administered substantially in accordance with
their respective terms and, to the extent subject to the Employee Retirement
Income Security Act of 1974, as amended, and the rules and regulations
promulgated thereunder ("ERISA") and, to the extent applicable, the Code and all
other applicable laws, and are in material compliance with ERISA, the Code and
all other applicable laws. Each Plan which is an "employee pension benefit plan"
within the meaning of Section 3(2) of ERISA (each, a "Company Pension Plan") and
which is intended to be qualified under Section 401(a) of the Code, has received
a favorable determination letter from the Internal Revenue Service and such
Company Pension Plan has been administered in substantial compliance with Code
Section 401(a). Neither the Company nor any Company Subsidiary has engaged in a
transaction with respect to any Company Pension Plan that would subject the
Company or any of Company Subsidiary to a material tax or material penalty
imposed by either Sections 4975 through 4980 of the Code or Section 502(i) of
ERISA. Each Plan (other than any stock option plan) can be amended, terminated,
or otherwise discontinued after the Effective Time, without material liability
to Parent, the Company or any Company Subsidiary (other than ordinary
administration expenses). There are no audits, inquiries, or proceedings pending
or, to the knowledge of the Company, threatened by the Internal Revenue Service,
Department of Labor, or any other governmental agency or entity with respect to
any Plan. Neither a Plan, nor the Company or any Company Subsidiary has
represented provided, or has any liability to provide retiree health to any
person for any reason, except as required by the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended.
(b) No material liability under Subtitles C or D or Title IV of ERISA
has been or is expected to be incurred by the Company or any Company
Subsidiaries with respect to any ongoing, frozen or terminated Company Pension
Plan, currently or formerly maintained, contributed to, or required to be
contributed to by any of them, or the Plans of any person which is considered
one employer with the Company under Section 4001 of ERISA or Section 414 of the
Code. No legal or administrative action has been taken by the Pension Benefit
Guaranty Corporation ("PBGC") to terminate or to appoint a trustee to administer
the Company Pension Plan and no liability to the PBGC under Title IV of ERISA
has been incurred by the Company or any Company Subsidiary that has not been
satisfied in full. Each Company Pension Plan is fully-funded on a termination
basis and no pension Plan has incurred a reportable event within the meaning of
Section 4043 of ERISA and no Company Pension Plan has incurred any event
described in Section 4041, 4062, or 4063 of ERISA.
-20-
(c) Neither any Company Pension Plan nor any single-employer plan of
the Company or any Company Subsidiaries has incurred an "accumulated funding
deficiency" (whether or not waived) within the meaning of Section 412 of the
Code or Section 302 of ERISA.
(d) Except to the extent set forth on Schedule 4.11(d) or as may result
from the termination of the 401(k) plan referred to, and as contemplated by,
Section 6.4 below, the execution and delivery of this Agreement does not, and
the performance of the transactions contemplated by this Agreement will not
(either alone or upon the occurrence of any additional or subsequent events),
constitute an event under any of the Plans that will result in any payment
(whether of severance or otherwise), acceleration, forgiveness of indebtedness,
vesting, distribution, increase in benefits or obligation to fund benefits (such
resulting events being collectively referred to as the "ERISA Obligations") with
respect to any employee of the Company or any of its Subsidiaries, which ERISA
Obligations could reasonably be expected to have a Material Adverse Effect.
(e) (i) Neither the Company nor any Subsidiary is a party to a
collective bargaining agreement or other labor union contract applicable to
individuals employed by the Company or any Subsidiary, (ii) there is no pending
or, to the Company's knowledge, threatened union organizational effort, material
labor dispute, strike or similar work stoppage against the Company or any
Company Subsidiary and (iii) to the Company's knowledge, there is no pending or
threatened charge or complaint against the Company or any Company Subsidiaries
by the National Labor Relations Board or any comparable state agency.
(f) Each Plan that has been adopted or maintained by the Company or any
Company Subsidiary, whether informally or formally, or with respect to which the
Company or any Company Subsidiary will or may have any liability, for the
benefit of current or former employees who perform services outside the United
States (collectively, the "International Employee Plan") has been established,
maintained and administered in compliance with its terms and conditions and with
the requirements prescribed by any and all statutory or regulatory laws that are
applicable to such International Employee Plan. Furthermore, no International
Employee Plan has unfunded liabilities, that as of the Effective Time, will not
be offset by insurance or fully accrued. Except as required by law, no condition
exists that would prevent the Company or Logitech Subsidiary from terminating or
amending any International Employee Plan at any time for any reason without
liability to Parent, Logitech Subsidiary, the Company or Company Subsidiaries
(other than ordinary administration expenses or routine claims for benefits).
Section 4.12 Compliance with Laws; Licenses.
(a) Neither the Company nor any Company Subsidiary is or has been in
violation of any applicable provisions of any laws, statutes, ordinances or
regulations except where such violations would not have a Material Adverse
Effect.
(b) Each of the Company and the Company Subsidiaries has and is in
compliance with all permits, licenses and authorizations (collectively,
"Licenses") which are necessary for it to conduct
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its business in the manner in which it is presently conducted except where the
failure to have any such permits, licenses and authorizations would not have a
Material Adverse Effect.
Section 4.13 Environment.
(a) Neither the Company nor any Company Subsidiary is in conflict with,
or in default or violation of, any Environmental Laws (as defined in Section
4.13(c)(ii) below) or any order, judgment or decree under any Environmental Law,
applicable to the Company or any Company Subsidiary or by which its or any of
their respective properties is bound or affected, except where such conflict,
default or violation does not have a Material Adverse Effect. No investigation
or review by any governmental or regulatory body or authority is pending or, to
the knowledge of the Company, threatened against the Company or the Company
Subsidiaries, nor has any governmental or regulatory body or authority indicated
to Company an intention to conduct the same, other than, in each such case,
those the outcome of which would not, individually or in the aggregate, have a
Material Adverse Effect.
(b) The Company has not disposed of, released, discharged or emitted
any Hazardous Materials (as defined in Section 4.13(c)(i) below) into the soil
or groundwater at any properties owned or leased at any time by the Company, or,
to the knowledge of the Company, at any other property, or exposed any employee
or other individual to any Hazardous Materials or any workplace or environmental
condition in such a manner as would result in any material liability or clean-up
obligation of any kind or nature to the Company. To the knowledge of the
Company, no Hazardous Materials are present in, on, or under any properties
owned, leased or used at any time by the Company, and no reasonable likelihood
exists that any Hazardous Materials will come to be present in, on, or under any
properties owned, leased or used at any time by the Company, so as to give rise
to any material liability or clean-up obligation under any Environmental Laws.
(c) Definitions.
(i) "Hazardous Material" is any material or substance that is
prohibited or regulated by any Environmental Law or that has been
designated by any governmental authority to be radioactive, toxic,
hazardous or otherwise a danger to health, reproduction or the
environment.
(ii) "Environmental Laws" are all applicable Laws, rules,
regulations, orders, treaties, statutes, and codes promulgated by any
governmental authority which prohibit, regulate or control any
Hazardous Material or any Hazardous Material activity, including,
without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, the Resource Recovery and
Conservation Act of 1976, the Federal Water Pollution Control Act, the
Clean Air Act, the Hazardous Materials Transportation Act, the Clean
Water Act, comparable laws, rules, regulations, ordinances, orders,
treaties, statutes, and codes of other governmental authorities, the
regulations promulgated pursuant to any of the foregoing, and all
amendments and modifications of any of the foregoing, all as amended to
date.
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Section 4.14 Restrictions on Business Activities. There is no
agreement, commitment, judgment, injunction, order or decree binding upon the
Company or the Company Subsidiaries or to which the Company or any Company
Subsidiary is a party that has or could reasonably be expected to have the
effect of prohibiting or materially impairing any material business practice of
the Company or any Company Subsidiary, any acquisition of property by the
Company or any Company Subsidiary or the conduct of business by the Company or
any Company Subsidiary as currently conducted.
Section 4.15 Title to Property.
(a) Neither Company nor any Company Subsidiary owns any material real
property. The Company and each Company Subsidiary has good and defensible title
to all of their material properties and assets, free and clear of all liens,
charges and encumbrances except liens for taxes not yet due and payable and such
liens or other imperfections of title, if any, as do not materially detract from
the value of or materially interfere with the present use of the property
affected thereby.
(b) All leases (the "Leases") pursuant to which the Company or any
Company Subsidiary leases from others real or personal property are valid and
effective in accordance with their respective terms, and there is not, under any
of such leases, any existing default or event of default of the Company or any
Company Subsidiary or, to the Company's knowledge, any other party (or any event
which with notice or lapse of time, or both, would constitute a default and in
respect of which Company or such the Company Subsidiary has not taken adequate
steps to prevent such default from occurring), except for any defaults or events
of default that would be reasonably likely to have, individually or in the
aggregate, a Material Adverse Effect.
(c) Schedule 4.15 sets forth a list of all real property currently
leased by the Company. The Company has provided Logitech Subsidiary with true,
complete and correct copies of each such Lease; no term or condition of any such
Lease has been modified, amended or waived except as shown in such copies; each
such Lease constitutes the entire agreement of the landlord and the tenant
thereunder; and there are no other agreements or arrangements whatsoever
relating to the Company's use or occupancy of any of the premises described in
such Leases. The Company has not transferred or assigned any interest in any
such Lease, nor has the Company subleased or otherwise granted rights of use or
occupancy of any of the premises described therein to any other person or
entity.
(d) To the knowledge of the Company, the landlord under each Lease has
complied with all of the requirements, conditions, representations, warranties
and covenants of the landlord thereunder, including, without limitation, the
timely completion of construction of the leased premises in a good and
workmanlike manner and otherwise in accordance with the Leases.
(e) There is not pending or, to the Company's knowledge, threatened
condemnation or similar proceeding affecting any leased property or any portion
thereof.
Section 4.16 Intellectual Property.
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(a) The Company and the Company Subsidiaries own, or possess, free and
clear of any material liens, adequate licenses or other valid rights to use
(including the right to sublicense to customers, suppliers, or others as
needed), all of the material Company Intellectual Property (as defined below)
that is used in the conduct of Company's or Company Subsidiaries' businesses.
Schedule 4.16 sets forth a complete list of all registered Company Intellectual
Property. Schedule 4.16 lists all material contracts, licenses and agreements to
which Company or any Company Subsidiary is a party: (i) with respect to Company
Intellectual Property licensed or transferred to any third party (other than
agreements relating to the sale or distribution of the Company's products
entered into in the ordinary course); or (ii) pursuant to which a third party
has licensed or transferred any material intellectual property to Company which
is incorporated in the Company's current products.
(b) Neither the Company nor any of the Company Subsidiaries has
received from a third party any written notice of infringement or
misappropriation of or conflict with, in any material respects, Company
Intellectual Property. To the knowledge of the Company, the use of such Company
Intellectual Property in connection with the business and operations of the
Company and the Company's Subsidiaries does not infringe, in any material
respects, on the rights of any person or entity. No material claim by any third
party contesting the validity, enforceability, use or ownership of any of the
Company Intellectual Property owned by the Company or any of the Company
Subsidiaries, is currently outstanding or is, to the knowledge of the Company,
threatened. The Company has not received any written notices of any material
infringement or misappropriation by any third party with respect to the Company
Intellectual Property. Neither the Company nor any Company Subsidiary is aware
of any claim by any other person or entity that any of the products, processes
or business methods of the Company or any Company Subsidiary infringe or may
infringe upon any intellectual property rights of any other person or entity.
The Company and each of the Company Subsidiaries have taken reasonable actions
to maintain and protect its Company Intellectual Property, except for those
actions, which the failure to take, individually or in the aggregate, would not
have a Material Adverse Effect.
(c) As used herein, "Company Intellectual Property" means all
trademarks, trademark registrations, trademark rights and renewals thereof,
trade names, trade name rights, patent, patent rights, patent applications,
industrial models, inventions, designs, utility models, inventor rights,
software, computer programs, computer systems, copyrights, copyright
registrations and renewals thereof, servicemarks, servicemark registrations and
renewals thereof, servicemark rights, trade secrets, applications for trademark
and servicemark registrations, know-how, confidential information and other
proprietary rights, used or held for use in connection with the businesses of
the Company and/or the Company Subsidiaries as currently conducted by them,
together with all applications currently pending or in process for any of the
foregoing.
(d) The Company and each of the Company Subsidiaries has taken
reasonable steps to protect the Company's and the Company Subsidiaries' rights
in the Company's confidential information and trade secrets that it wishes to
protect or any trade secrets or confidential information of third parties
provided to the Company or any Company Subsidiary, and, without limiting the
foregoing, each of the Company and the Company Subsidiaries has and uses
commercially
-24-
reasonable efforts to enforce a policy requiring each employee and contractor to
execute a proprietary information/confidentiality agreement substantially in the
form provided to Logitech Subsidiary and all current and former employees and
contractors of the Company and any Company Subsidiary have executed such an
agreement, except where the failure to do so is not, individually or in the
aggregate, reasonably likely to materially impair the Company's or the Company
Subsidiaries' rights in the Company Intellectual Property.
Section 4.16A Agreements, Contracts and Commitments. Except as set
forth in Schedule 4.16A, neither Company nor any Company Subsidiary is a party
to or is bound by:
(i) any written employment or consulting agreement, contract
or commitment with any officer, director, employee or member of the
Board of Directors of the Company or any Company Subsidiary, other than
(i) those that are terminable by Company or any Company Subsidiary on
no more than 30 days' notice without liability or financial obligation
to Company, all Company Benefit Plans and International Benefit Plans
and (ii) employment or similar agreements with foreign employees;
(ii) any agreement or plan, including, without limitation, any
stock option plan, stock appreciation right plan or stock purchase
plan, any of the benefits of which will be increased, or the vesting of
benefits of which will be accelerated, by the occurrence of any of the
transactions contemplated by this Agreement or the value of any of the
benefits of which will be calculated on the basis of any of the
transactions contemplated by this Agreement;
(iii) any material agreement of indemnification or any
material guaranty, other than inter-company guaranties; (iv) any
material agreement, contract or commitment containing any covenant
limiting in any respect the right of Company or any Company Subsidiary
to compete with any person or entity in any line of business or
granting any exclusive distribution rights;
(v) any agreement, contract or commitment currently in force
relating to the disposition or acquisition by Company or any Company
Subsidiary after the date of this Agreement of assets not in the
ordinary course of business or pursuant to which Company or any Company
Subsidiary has any ownership interest in any corporation, partnership,
joint venture or other business enterprise other than Company's
subsidiaries;
(vi) any dealer, distributor, joint marketing or development
agreement currently in force under which Company or any Company
Subsidiary have continuing material obligations to jointly market any
product, technology or service and which may not be cancelled without
penalty upon notice of 90 days or less, or any material agreement
pursuant to which Company or any Company Subsidiary have continuing
material obligations to jointly develop any intellectual property that
will not be owned, in whole or in part, by Company or any Company
Subsidiary and which may not be canceled without penalty upon notice of
90 days or less;
-25-
(vii) any agreement, contract or commitment currently in force
to license any third party to manufacture or reproduce any Company
product, service or technology or any agreement, contract or commitment
currently in force to sell or distribute any Company products, service
or technology except agreements with manufacturers, distributors or
sales representative in the normal course of business cancelable
without penalty upon notice of 90 days or less and substantially in the
form previously provided to Logitech Subsidiary;
(viii) any agreement, contract or commitment currently in
force to provide source code to any third party for any product or
technology;
(ix) any mortgages, indentures, guarantees, loans or credit
agreements, security agreements or other agreements or instruments
evidencing the borrowing of money or extension of credit;
(x) any settlement agreement under which Company or any
Company Subsidiary has ongoing obligations; or
(xi) any agreement with a customer of the Company involving
revenues to the Company for the fiscal year ended March 31, 2000 in
excess of $500,000.
Neither the Company nor any Company Subsidiary, nor to the Company's
knowledge any other party to a Company Contract (as defined below), is in
material breach, violation or default under, and neither the Company nor any
Company Subsidiary has received written notice that it has materially breached,
violated or defaulted under, any of the material terms or conditions of any of
the agreements, contracts or commitments to which the Company or any Company
Subsidiary is a party or by which it is bound that are required to be disclosed
pursuant to this Article IV (any such agreement, contract or commitment, a
"Company Contract").
Section 4.17 Insurance. The Company maintains and will continue to
maintain insurance policies and fidelity bonds covering the assets, business,
equipment, properties, operations, employees, officers and directors of the
Company and the Company Subsidiaries (collectively, the "Insurance Policies")
which are of the type and in amounts customarily carried by persons conducting
businesses similar to those of the Company and the Company Subsidiaries. There
is no material claim by the Company or any Company Subsidiary pending under any
of the material Insurance Policies as to which coverage has been questioned,
denied or disputed by the underwriters of such policies or bonds.
Section 4.18 Customers Schedule. 4.18 sets forth a complete and
accurate list of each customer of the Company that accounted for more than 5% of
the revenues of the Company during the first nine months of the Company's fiscal
year 2001. All sales of the Company's products to such customers were made in
accordance with the Company's standard form terms and conditions, a copy of
which the Company has provided to Logitech Subsidiary. During such period the
Company has not extended credit terms, paid additional or discretionary
marketing allowances, or made
-26-
commitments as to price protection or return rights of such customers that are
not provided for in such standard form terms and conditions.
Section 4.19 Finders' Fees. No broker, investment banker, financial
advisor or other person, other than Goldsmith Agio Helms (the "Financial
Advisor") and the general partner of one of the Principal Stockholders, is
entitled to any broker's, finder's, financial advisor's or other similar fee or
commission in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company or any of the
Company Subsidiaries. The Company has provided to Logitech Subsidiary true and
correct copies of the engagement letters pursuant to which the Financial Advisor
and the general partner of one of the Principal Stockholders are entitled to the
fees referred to in the prior sentence. Transaction fees incurred by the Company
in connection with the consummation of the transactions contemplated hereby,
including, without limitation, any fees incurred by the Company on behalf of one
of the Principal Stockholders, (excluding fees payable to the general partner of
one of the Principal Stockholders) shall not exceed $2,500,000.
Section 4.20 Opinion of Financial Advisor. The Company has received the
opinion of the Financial Advisor, dated the date hereof, to the effect that, as
of the date hereof, the Merger Consideration is fair to the Company's
stockholders from a financial point of view and will provide to Logitech
Subsidiary a copy of the written confirmation of such opinion promptly after
receipt thereof.
Section 4.21 State Takeover Statutes. The Board of Directors of the
Company has approved the Offer, this Agreement and the consummation of the other
transactions contemplated hereby and, assuming the accuracy of the
representation of Logitech Subsidiary and Merger Sub in Section 5.7, such
approval is, except as set forth on Schedule 4.21, sufficient to render
inapplicable to the Offer, the Merger, this Agreement and the consummation of
the transactions contemplated hereby, the provisions of Chapters 110C, 110D and
110F of the Massachusetts General Laws to the extent, if any, such chapters are
applicable to the transactions contemplated hereby. No other "fair price,"
"merger moratorium," "control share acquisition" or other anti-takeover statute
or similar statute or regulation applies or purports to apply to the Merger,
this Agreement, the Offer or any of the transactions contemplated hereby or
thereby.
Section 4.22 Company Disclosure Documents. The Proxy Statement and
the Schedule 14D-9 referred to in Section 1.2(b) (collectively, the "Company
Disclosure Documents"), when filed, will comply as to form in all material
respects with the applicable requirements of the Exchange Act and the rules and
regulations promulgated thereunder and will not, (i) with regard to the Proxy
Statement or any amendment or supplement thereto, at the time it is first mailed
to stockholders of the Company and as at the date of the Special Meeting (as the
same may be amended or supplemented prior to the date it is first mailed to
stockholders of the Company or at the Special Meeting, as applicable), and (ii)
with regard to the Schedule 14D-9, at the time of filing thereof or at the time
of the consummation of the Offer and the Effective Time (as the same may be
amended or supplemented prior to the consummation of the Offer or the Effective
Time, as applicable), contain any untrue statement of a material fact or omit to
state any material fact necessary in order to make
-27-
the statements made therein, in light of the circumstances in which they were
made, not misleading; provided, however, that the foregoing covenant shall not
apply to information with respect to Parent, Parent Subsidiaries or Merger Sub
furnished to the Company in writing by Logitech Subsidiary specifically for use
in the Company Disclosure Documents. The information furnished by the Company to
Logitech Subsidiary in writing for use in the Offer Documents will not contain,
at the time of filing thereof, any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made
therein, in light of the circumstances in which they were made, not misleading.
Article V
Representations and Warranties of Logitech Subsidiary and Merger Sub
--------------------------------------------------------------------
Logitech Subsidiary and Merger Sub jointly and severally represent and
warrant to the Company that:
Section 5.1 Corporate Existence and Power; Organizational Documents.
(a) Each of Parent, Logitech Subsidiary and Merger Sub is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has all corporate power and authority to own
its properties and assets and to carry on its business as presently conducted.
Each of Parent and Logitech Subsidiary is duly qualified to do business as a
foreign corporation and is in good standing in each jurisdiction where the
character of the property owned or leased by it or the nature of its activities
makes such qualification necessary, except where the failure to be so qualified
would not, individually or in the aggregate, have a Material Adverse Effect.
(b) Logitech Subsidiary has previously furnished to the Company a
complete and correct copy of its and Parent's articles of incorporation and
bylaws, each as amended to date (together, the "Parent Charter Documents"). The
Parent Charter Documents and the organizational documents of each Parent
Subsidiary (as defined in Section 5.3 below) are in full force and effect.
Parent is not in violation of any of the provisions of the Parent Charter
Documents, and no Parent Subsidiary is in violation of its equivalent
organizational documents except where the violation of the Parent Charter
Documents or any such organizational documents of a Parent Subsidiary would not,
individually or in the aggregate, have a Material Adverse Effect.
Section 5.2 Corporate Authorization; Binding Effect. Each of Parent,
Logitech Subsidiary and Merger Sub each have the corporate power to execute,
deliver and perform this Agreement and all other documents executed and
delivered or to be executed and delivered by either of them pursuant to this
Agreement have taken all necessary corporate action to authorize the execution,
delivery and performance by each of them of this Agreement and such related
documents. This Agreement has been duly executed and delivered by Parent,
Logitech Subsidiary and Merger Sub and, assuming due and valid authorization,
execution and delivery by the Company, constitutes a valid and binding agreement
of each of Parent, Logitech Subsidiary and Merger Sub, enforceable against
Parent, Logitech Subsidiary and Merger Sub in accordance with its terms, except
as such
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enforceability may be limited by (a) applicable bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance or other similar laws and
principles now or hereafter in effect, affecting creditors' rights generally,
(b) rules or principles of equity affecting the enforcement of obligations
generally, whether at law, in equity or otherwise, or (c) the exercise of the
discretionary powers or any court or other authority before which a proceeding
may be brought seeking equitable remedies, including specific performance and
injunctive relief.
Section 5.3 Governmental Authorization. The execution, delivery and
performance by Parent, Logitech Subsidiary and Merger Sub of this Agreement and
the consummation by Parent, Logitech Subsidiary and Merger Sub of the
transactions contemplated hereby do not require Parent, Logitech Subsidiary or
Merger Sub to obtain any consent of, or to make any filing with, any
Governmental Entity other than (a) the filing of the articles of merger in
accordance with the MBCL, (b) compliance with any applicable requirements of the
HSR Act or the Foreign Filings, (c) compliance with any applicable requirements
of the Securities Act, the Swiss Stock Exchange, the Nasdaq National Market or
the Exchange Act, including, without limitation, the filing with the SEC of the
Schedule TO and (d) such other consents and filings which, if not obtained or
made, would not have a Material Adverse Effect. For purposes of this Agreement,
"Parent Subsidiaries" is the collective reference to each corporation or other
entity of which securities or other ownership interests having ordinary voting
power to elect a majority of the board of directors or other persons performing
similar functions are directly or indirectly owned by Parent.
Section 5.4 Non-Contravention. The execution, delivery and performance
by Parent, Logitech Subsidiary and Merger Sub of this Agreement and the
consummation by Parent, Logitech Subsidiary and Merger Sub of the transactions
contemplated hereby do not and will not (a) contravene or conflict with the
articles of incorporation of Parent or the articles of organization of Logitech
Subsidiary or Merger Sub or the bylaws of any of them, (b) assuming compliance
with the matters referred to in Section 5.3, contravene or conflict with, or
constitute a violation of any provision of law, regulation, judgment,
injunction, order or decree binding upon Parent, Logitech Subsidiary or Merger
Sub or any of their respective properties or assets, or any governmental
licenses, authorizations, consents and approvals held by Parent, Logitech
Subsidiary or Merger Sub, (c) with or without the giving of notice or passage of
time or both, constitute a breach or default under any agreement, contract or
other instrument binding upon Parent, Logitech Subsidiary or Merger Sub, or (d)
result in the creation or imposition of any Lien on any asset of Parent,
Logitech Subsidiary or Merger Sub except with respect to the foregoing clauses
(c) or (d) such contraventions, conflicts, violations, breaches, defaults or
Liens which would not, individually or in the aggregate, have a Material Adverse
Effect or materially impair the ability of the Parent, Logitech Subsidiary or
Merger Sub to consummate the transactions contemplated hereby.
Section 5.5 Finders' Fees. No broker, investment banker, financial
advisor or other person, other than SG Cowen Securities, is entitled to any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of Parent, Logitech Subsidiary or Merger Sub.
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Section 5.6 Financing Logitech. Subsidiary and Merger Sub have or will
have upon receipt by Logitech Subsidiary of the funding of Logitech Subsidiary
described in the commitment letter dated as of the date hereof, a copy of which
Logitech Subsidiary has provided to the Company, pursuant to its terms
sufficient immediately available funds to purchase all of the Shares and to make
all payments in respect of all Company Options as required by this Agreement, to
pay all related fees and expenses in connection with this Agreement and the
transactions contemplated hereby and to otherwise consummate the transactions
contemplated hereby.
Section 5.7 Interested Stockholder. As of the date hereof (excluding
any beneficial ownership that may be attributed to Parent, Logitech Subsidiary
or Merger Sub by virtue of any transaction contemplated by this Agreement or by
the execution of this Agreement), (a) none of Parent, Logitech Subsidiary,
Merger Sub nor any of their respective affiliates is, with respect to the
Company, an "Interested Stockholder," as such term is defined in Chapter 110F of
the MBCL and (b) none of Parent, Logitech Subsidiary or Merger Sub nor, to the
knowledge of Logitech Subsidiary or Merger Sub, any of their respective
affiliates, beneficially owns any Shares.
Section 5.8 Merger Sub's Operations. Merger Sub was formed solely for
the purpose of engaging in the transactions contemplated hereby and since its
date of incorporation has not engaged in any activities or conducted any
operations other than in connection with the transactions contemplated hereby.
Section 5.9 Capitalization.
(a) As of December 31, 2000, (i) the share capital of Parent amounted
to CHF 42,794,240 divided into 4,279,424 registered shares with a par value of
CHF 10 each, all of which are issued and outstanding (the "Parent Registered
Shares"); (ii) 13,742 of the Parent Registered Shares were held by Parent in
treasury; and (iii) the conditional share capital of Parent amounted to CHF
10,305,760 divided into 1,030,576 registered shares with a par value of CHF 10
each, of which 816,554 were reserved for issuance upon exercise of options
granted to current or former employees and directors of Parent and Parent
Subsidiaries and 214,022 were reserved for issuance upon ungranted options. As
of the date hereof, (i) the total of the share capital and conditional share
capital of Parent amounts to CHF 50,310,000, divided into registered shares and
shares reserved for issuance upon granted and outstanding or ungranted options;
and (ii) the authorized share capital of Parent amounts to CHF 10,000,000 and is
divided into 1,000,000 registered shares. All issued and outstanding shares of
capital stock of Parent have been duly authorized and validly issued and are
fully paid and nonassessable, and were not issued in violation of, or subject
to, any preemptive rights or other rights to subscribe for or purchase
securities. The Parent Registered Shares underlying the Parent ADSs to be issued
in the Offer and the Merger have been duly authorized for issuance and sale to
the stockholders of the Company in the Offer and the Merger and, when issued and
deposited under the Deposit Agreement in accordance with the terms hereof and
the Deposit Agreement, will be duly and validly issued and fully paid and
nonassessable, and will be sold free and clear of any Lien, and no preemptive
right, co-sale right, registration right, right of first refusal or other
similar right of shareholders exists with respect to any of the Parent
Registered Shares underlying the Parent
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ADSs to be issued in the Offer and the Merger or the issuance and sale thereof,
other than those that have been expressly waived prior to the date hereof.
(b) All issued and outstanding shares of capital stock of each Parent
Subsidiary have been duly authorized and validly issued and are fully paid and
nonassessable, and were not issued in violation of, or subject to, any
preemptive rights or other rights to subscribe for or purchase securities.
Parent owns all of the capital stock of the Parent Subsidiaries free and clear
of any and all Liens. Except as set forth in Section 5.9(a) or in the Parent
Filings, as of the date hereof, neither Parent nor any Parent Subsidiary has any
outstanding options to purchase, or receive any preemptive rights or other
rights to subscribe for or to purchase, any securities or obligations
convertible into, or any contracts or commitments to issue or sell, shares of
its capital stock or any such options, rights, convertible securities or
obligations.
Section 5.10 Public Information. Logitech Subsidiary has made available
to the Company a true and complete copy of each report, schedule, registration
statement and definitive proxy statement filed by it with the SEC since March
31, 1999 (as any such documents have since the time of their original filing
been amended, the "Parent Filings"), which are all the documents (other than
preliminary material) that it was required to file with the SEC since such date.
As of their respective dates, the Parent Filings did not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances
under which they were made, not misleading. As of their respective dates, the
Parent Filings complied in all material respects with the applicable
requirements of the Securities Act and the Exchange Act and the rules and
regulations promulgated under such statutes. The financial statements contained
in the Parent Filings were prepared in accordance with generally accepted
accounting principles consistently applied throughout the periods indicated
(except as may be indicated in the notes thereto or, in the case of unaudited
financial statements, as permitted by applicable federal securities laws), and
fairly present in all material respects the consolidated financial position of
the Parent and its consolidated subsidiaries at said dates and the consolidated
results of operations and cash flows of the Parent and its consolidated
subsidiaries for the periods then ended. For purposes of this Agreement, "Parent
Balance Sheet Date" means September 30, 2000.
Section 5.11 Absence of Certain Changes. Since the Parent Balance Sheet
Date, or as explicitly contemplated by this Agreement, Parent and the Parent
Subsidiaries have conducted their business in the ordinary course consistent
with past practice and there has not been:
(a) any Material Adverse Effect;
(b) any declaration, setting aside or payment of any dividend or other
distribution with respect to any shares of capital stock of the Parent, or,
except in connection with the exercise of options pursuant to Parent's stock
option and other compensation plans and arrangements, any repurchase, redemption
or other acquisition by Parent or any Parent Subsidiary of any outstanding
shares of capital stock or other securities of, or other ownership interests in,
Parent or any Parent
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Subsidiary, except open-market acquisitions of Parent ADSs or Parent Registered
Shares by Parent or Logitech Subsidiary; or
(c) any material change in any method of accounting or accounting
practice by the Parent or any Parent Subsidiary, except for any such material
change required by a concurrent change of generally accepted accounting
principles.
Section 5.12 Litigation. Except as set forth in the Parent Filings,
there is no action, suit, investigation or proceeding pending against, or to the
knowledge of Parent, threatened against, Parent or any Parent Subsidiary or any
of their respective properties before any court or arbitrator or any
Governmental Entity which, if determined or resolved adversely to Parent or any
Parent Subsidiary in accordance with the plaintiff's demands, could reasonably
be expected to have a Material Adverse Effect.
Section 5.13 Compliance with Laws; Licenses.
(a) Except as set forth in the Parent Filings, neither the Parent nor
any Parent Subsidiary is in violation of any applicable provisions of any laws,
statutes, ordinances or regulations except where such violations would not have
a Material Adverse Effect.
(b) Each of Parent and Parent Subsidiaries has all permits, licenses
and authorizations which are necessary for it to conduct its business in the
manner in which it is presently conducted except where the failure to have any
such permits, licenses and authorizations would not have a Material Adverse
Effect.
Section 5.14 Offer Documents. The Offer Documents, when filed, will
comply as to form in all material respects with the applicable requirements of
the Exchange Act and the Securities Act and the rules and regulations
promulgated under both of them and will not, at the time of the filing thereof,
at the time of any distribution thereof or at the time of the consummation of
the Offer and the Effective Time (as the same may be amended or supplemented
prior to consummation of the Offer or the Effective Time, as applicable),
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances in which they were made, not misleading; provided, however, that
the foregoing covenant shall not apply to information with respect to the
Company and the Company Subsidiaries furnished to Logitech Subsidiary in writing
by the Company specifically for use in the Offer Documents. The information
furnished by Logitech Subsidiary or Merger Sub to the Company in writing for use
in the Company Disclosure Documents will not contain, at the time of filing
thereof, any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances in which they were made, not misleading.
Article VI
Covenants of the Company
------------------------
Section 6.1 Conduct of the Company. From the date hereof until earliest to occur
of the Effective Time, the date of the appointment of Merger Sub's designees to
the Company Board
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pursuant to Section 1.3 and the termination of this Agreement, except as set
forth on Schedule 6.1, the Company shall carry on its business in the usual,
regular and ordinary course in substantially the same manner as heretofore
conducted and in compliance with all applicable laws and regulations, pay its
debts and taxes when due subject to good faith disputes over such debts or
taxes, pay or perform other material obligations when due, and use its
commercially reasonable efforts consistent with past practices and policies to
(i) preserve intact its present business organization, (ii) keep available the
services of its present officers and employees and (iii) preserve its
relationships with customers, suppliers, distributors, licensors, licensees and
others with which it has significant business dealings.
In addition, except as permitted by the terms of this Agreement and
except as provided in Schedule 6.1, without the prior written consent of
Logitech Subsidiary (which consent shall not be unreasonably delayed or
withheld), during the period from the date of this Agreement and continuing
until the earlier of the Effective Time, the termination of this Agreement
pursuant to its terms or the date of the appointment of Merger Sub's designees
to the Company Board pursuant to Section 1.3, the Company shall not, and shall
cause each of the Company Subsidiaries not to:
(a) adopt any change in its articles of organization or bylaws;
(b) except for the Merger, acquire or agree to acquire by merging or
consolidating with, or by purchasing any equity interest in or a portion of the
assets (other than in the ordinary course of business) of, or by any other
manner, any business or any corporation, partnership, association or other
business organization or division thereof, or otherwise acquire or agree to
enter into any joint ventures, strategic partnerships or alliances;
(c) sell, lease, license or otherwise dispose of any material assets or
property except (i) pursuant to existing contracts or commitments, or (ii) sales
of inventory in the ordinary course of business consistent with past practices;
(d) waive any stock repurchase rights, accelerate, amend or change the
period of exercisability of restricted stock (except as specified in Section
2.12 hereof), or reprice options granted under any employee, consultant,
director or other stock plans;
(e) grant or agree or offer to grant any severance or termination pay
to any officer or employee except pursuant to written agreements outstanding, or
policies existing, on the date hereof and as previously disclosed in writing or
made available to Logitech Subsidiary, or adopt any new severance plan, or amend
or modify or alter in any manner any severance plan, agreement or arrangement
existing on the date hereof;
(f) transfer or license to any person or entity or otherwise extend,
amend or modify any rights to the Company Intellectual Property, or enter into
grants to transfer or license to any person future patent rights, other than in
the ordinary course of business consistent with past practices, provided that in
no event shall Company license on an exclusive basis or sell any Company
Intellectual Property;
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(g) (i) set aside or pay any dividends on, or make other distributions
in respect of, its capital stock, other than dividends and distributions by a
direct or indirect wholly-owned Company Subsidiary 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 (iii) purchase, redeem or otherwise acquire
any shares of capital stock of the Company or any of its Subsidiaries or any
other securities thereof or any rights, warrants or options to acquire any such
shares or other securities;
(h) issue, deliver, sell, pledge or otherwise encumber any shares of
its capital stock, any other voting securities or any securities convertible
into, or any rights, warrants or options to acquire, any such shares, voting
securities or convertible securities, other than the issuance of the shares of
Company Common Stock pursuant to currently outstanding Company Options granted
pursuant to the Company Option Plans in accordance with their present terms;
(i) make any material change to its accounting methods, principles or
practices, except as may be required by law or generally accepted accounting
principles;
(j) except as may be required by law or as contemplated by this
Agreement, (i) adopt, create, terminate or amend any Plan or arrangement for the
benefit or welfare of any current or former director, officer, employee or
consultant of the Company or any Company Subsidiary, (ii) increase in any
material manner the compensation (including salary, wage rates, contract rates,
fringe benefits, or rights to severance or indemnification) of, or pay any bonus
to, any director, officer, employee or consultant of the Company or any Company
Subsidiary (except for increases and bonuses required pursuant to the terms of
contracts and arrangements currently in effect with any such director, officer,
employee or consultant of the Company or any Company Subsidiary); or (iii) grant
any awards under any of the Plans, including the Company Option Plan, except as
required pursuant to the terms of contracts currently in effect with any such
director, officer, employee or consultant of the Company or any Company
Subsidiary, or except as required under the terms of the Plans;
(k) modify or amend in any material respect or terminate any existing
lease, license or contract affecting the use, possession or operation of any
such properties or assets; grant or otherwise create or consent to the creation
of any easement, covenant, restriction, assessment or charge affecting any owned
property or leased property or any part thereof; convey, assign, sublease,
license or otherwise transfer all or any portion of any owned property or leased
property or any interest or rights therein; or make any material changes in the
construction or condition of any such property;
(l) incur any indebtedness for borrowed money or guarantee any such
indebtedness of another person (other than (i) in the ordinary course of
business consistent with past practice in an amount not to exceed $50,000 and
(ii) performance guarantees, letters of credit and similar arrangements entered
into with respect to the commercial contracts in the ordinary course of business
consistent with past practice), issue or sell any debt securities or options,
warrants, calls or other rights to acquire any debt securities of the Company,
enter into any "keep well" or other
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agreement to maintain any financial statement condition or enter into any
arrangement having the economic effect of any of the foregoing other than in
connection with the financing of working capital consistent with past practice;
(m) adopt or amend any employee benefit plan, policy or arrangement or
any employee stock purchase or employee stock option plan; or enter into any
employment contract or collective bargaining agreement, except, in each case, as
may be required by law;
(n) (i) pay, discharge, settle or satisfy any litigation (whether or
not commenced prior to the date of this Agreement) or any material claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than (A) the payment, discharge, settlement or
satisfaction, in the ordinary course of business consistent with past practice
or in accordance with their terms, of liabilities recognized or disclosed in the
most recent consolidated financial statements (or the notes thereto) of Company
included in the Company Filings or incurred since the date of such financial
statements, and (B) the payment, discharge, settlement or satisfaction, of any
claims, liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise) in an amount that do not, in the aggregate, exceed
$50,000, or (ii) waive any material benefits of, agree to modify in any manner,
terminate, release any person from or knowingly fail to enforce any material
confidentiality or similar agreement to which the Company or any Company
Subsidiary is a party or of which the Company or any Company Subsidiary is a
beneficiary;
(o) except in the ordinary course of business consistent with past
practice, modify, amend or terminate any material contract or agreement to which
the Company or any subsidiary thereof is a party or waive, delay the exercise
of, release or assign any material rights or claims thereunder;
(p) incur or enter into any agreement, contract or commitment requiring
the Company or any Company Subsidiary to pay in excess of $100,000, except that
the Company or any Company Subsidiary may incur or enter into commitments of up
to $500,000 per commitment for the production of products by manufacturers
currently who contract with the Company or any Company Subsidiary, provided that
any such commitment is in the ordinary course of business based on past
practice;
(q) make any Tax election or accounting method change inconsistent with
past practice that, individually or in the aggregate, would be reasonably likely
to adversely affect in any material respect the Tax liability or Tax attributes
of the Company or any Company Subsidiary, settle or compromise any material Tax
liability, or consent to any extension or waiver of any limitation period with
respect to Taxes; or
(r) agree in writing or otherwise to take any of the actions described
in Section 6.1(a) through (q) above.
Section 6.2 Access to Information. From the date hereof until the
Effective Time, the Company will give Logitech Subsidiary, its counsel,
financial advisors, auditors and other representatives reasonable access during
normal business hours to the offices, properties, books and
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records of the Company and the Company Subsidiaries, will furnish to Logitech
Subsidiary, its counsel, financial advisors, auditors and other representatives
such information as such persons may reasonably request, and will instruct the
Company's employees, counsel, financial advisors, auditors and other
representatives to cooperate with Logitech Subsidiary in its further
investigation of the business of the Company and the Company Subsidiaries;
provided, however, that all requests for information to visit plants or
facilities or to interview the Company's employees or agents shall be directed
to, and coordinated with, the Chief Executive Officer of the Company or his
designee upon reasonable advance notice and in a manner that will not materially
interfere with or interrupt the Company's business; provided, further, however,
that any and all information received by Logitech Subsidiary, its counsel,
financial advisors, auditors and other representatives shall be and remain
subject to the Confidentiality Agreement.
Section 6.3 No Solicitation.
(a) The Company and the Company Subsidiaries will immediately cease any
and all existing activities, discussions or negotiations with any parties
conducted heretofore with respect to any Acquisition Proposal (as defined in
Section 6.3(e) below). From and after the date hereof until the earlier to occur
of the termination hereof and the Effective Time, the Company and the Company
Subsidiaries will not, and nor will they authorize or permit any of their
respective officers, directors, employees or any investment banker, attorney or
other advisor or representative retained by any of them to, directly or
indirectly, (i) initiate, solicit or encourage any Acquisition Proposal, (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any information with respect to, or take any other action to facilitate
any inquiries or the making of any proposal that constitutes or may reasonably
be expected to lead to, any Acquisition Proposal, or (iii) agree to or approve
or recommend any Acquisition Proposal. The Company will take all necessary steps
to promptly inform the individuals or entities referred to in the preceding
sentence of the obligations undertaken in this Section 6.3 and to cause them to
comply with such obligations. Without limiting the foregoing, it is understood
that any violation of the restrictions set forth in this Section 6.3 by any
officer, director, affiliate or employee of the Company or any of the Company
Subsidiaries or any investment banker, attorney or other advisor or
representative of the Company or any of the Company Subsidiaries shall be deemed
to be a breach of this Section 6.3 by the Company.
(b) From and after the date hereof until the earlier to occur of the
termination hereof and the Effective Time, the Company will promptly notify
Logitech Subsidiary after receipt of any Acquisition Proposal or any request for
nonpublic information relating to the Company or any Company Subsidiary by any
person that to the Company's knowledge may be considering making or has made an
Acquisition Proposal and will keep Logitech Subsidiary informed on a current
basis of the status and details of any such Acquisition Proposal or request. In
addition to the foregoing, the Company shall (x) provide Logitech Subsidiary
with notice of any meeting of the Company Board at which the Company Board is
reasonably expected to consider an Acquisition Proposal in the same manner and
at the same time that such notice is provided to the Company Board
(notwithstanding Section 11.2 hereof) and (y) provide Logitech Subsidiary with
notice of any meeting of the Company Board at which the Company Board is
reasonably expected to recommend a Superior
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Proposal to its stockholders in the same manner and at the same time that such
notice is provided to the Company Board (notwithstanding Section 11.2 hereof).
(c) Nothing contained in this Section 6.3 shall prohibit (i) the
Company from, in response to an unsolicited, bona fide written Acquisition
Proposal that the Company Board (or a duly authorized committee thereof)
concludes in good faith constitutes a Superior Proposal (as defined in Section
6.3(f) below), engaging in discussions or participating in negotiations with,
and furnishing information to, the party making such Acquisition Proposal to the
extent the Company Board (or such committee), after consultation with it legal
counsel, determines in good faith that it is necessary to do so for it to act in
accordance with its fiduciary duties under applicable law or (ii) the Company
Board from taking and disclosing to the Company's stockholders a position with
respect to a tender or exchange offer by a third party required under Rules
14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any
disclosure to the Company's stockholders or otherwise which, in the reasonable
judgment of the Board of Directors after consultation with its legal counsel,
may be required under applicable law, rules or regulations, including, without
limitation, those of any stock exchange. (
d) In addition to the obligations of the Company set forth in paragraph
(a) of this Section 6.3, prior to the termination hereof, the Company shall as
promptly as practicable, and in any event within one business day after receipt
thereof, advise Logitech Subsidiary orally and in writing of any request for
information which the Company reasonably believes would lead to an Acquisition
Proposal or of any Acquisition Proposal; the material terms and conditions of
such request, Acquisition Proposal or inquiry; and the identity of the person or
group making any such request, Acquisition Proposal or inquiry. The Company will
keep Logitech Subsidiary informed in all material respects of the status and
details (including material amendments or proposed amendments) of any such
request, Acquisition Proposal or inquiry.
(e) For purposes of this Agreement, "Acquisition Proposal" means, other
than the transactions contemplated by this Agreement, any tender offer or
exchange offer, or any offer or proposal for (i) a merger or other business
combination involving the Company or any Company Subsidiary, or (ii) the
acquisition of 15% or more of the equity interests in, or 15% or more of the
assets of, the Company or any Company Subsidiary.
(f) For purposes of this Agreement, "Superior Proposal" means an
Acquisition Proposal relating to the acquisition of a majority of the
outstanding voting securities, or all or substantially all of the assets, of the
Company with respect to which (A) if any cash consideration is involved, the
Company Board shall have concluded in good faith (after consultation with
Company's financial advisors) that the acquiring party is reasonably likely to
obtain any necessary financing, and (B) the Company Board shall have concluded
in good faith after consultation with its financial advisors that the
Acquisition Proposal would, if consummated, result in a transaction more
favorable from a financial point of view, to the Company and its stockholders
than the Offer and the Merger.
Section 6.4 Termination of 401(k) Plan. Effective as of the day
immediately preceding the Effective Time, the Company and each Company
Subsidiary, as applicable, shall each terminate
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any and all group severance, separation or salary continuation plans, programs
or arrangements and any and all plans intended to include a Code Section 401(k)
arrangement (unless Logitech Subsidiary provides written notice to the Company
that such 401(k) plans shall not be terminated) (collectively, "Company Employee
Plans"). Unless Logitech Subsidiary provides such written notice to the Company,
no later than three business days prior to the Effective Time, the Company shall
provide Logitech Subsidiary with evidence that such Company Employee Plan(s)
have been terminated (effective as of the day immediately preceding the
Effective Time) pursuant to resolutions of the Company's, or the Company's
Subsidiary's, Board of Directors, as applicable. The form and substance of such
resolutions shall be subject to review and approval of Logitech Subsidiary. The
Company also shall take such other actions in furtherance of terminating such
Company Employee Plan(s) as Logitech Subsidiary may reasonably require.
Article VII
Covenants of Logitech Subsidiary and Merger Sub
-----------------------------------------------
Section 7.1 Obligations of Merger Sub. Logitech Subsidiary will take
all action necessary to cause Merger Sub to perform its obligations under this
Agreement and to consummate the Merger on the terms and conditions set forth in
this Agreement.
Section 7.2 Director and Officer Liability. All rights to
indemnification, defense, advancement of expenses and all limitations of
liability existing in favor of the present and former directors and officers of
the Company and its Subsidiaries in connection with the transactions
contemplated by this Agreement pursuant to the indemnification provisions under
the Company Charter Documents as in effect on the date hereof shall survive the
Merger and continue in full force and effect for a period of six years from and
after the Effective Time and, if later, the final disposition of all claims
referred to in the next succeeding sentence. In the event that any claim or
claims are asserted or made within such six-year period, all such rights to
indemnification, defense and advancement of expenses shall continue until the
final dispositions of such claims. Logitech Subsidiary will cause the Surviving
Corporation to provide officers' and directors' liability insurance in respect
of acts and omissions occurring on or prior to the Effective Time covering each
person presently covered by the Company's officers' and directors' liability
insurance in effect on the date of this Agreement on terms with respect to
coverage and in amounts no less favorable than those of such policy in effect on
the date of this Agreement; provided, however, that in no such event will
Logitech Subsidiary or the Surviving Corporation be required to expend an annual
premium for such coverage in excess of 175% of the annual premium currently paid
by the Company.
Section 7.3 Matters Regarding ADRs. Logitech Subsidiary shall use its
commercially reasonable efforts to cause The Bank of New York, the depositary
under the Deposit Agreement, to waive the $0.05 per Parent ADS cancellation fee
under the Deposit Agreement applicable to the cancellation of surrendered Parent
ADRs upon the withdrawal of Parent Registered Shares represented by Parent ADRs
issued in the Offer or the Merger.
Section 7.4 Expenses of the Company. From and after the time of
consummation of the Offer, Logitech Subsidiary shall cause the Company to pay
when due any and all fees and expenses
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incurred by the Company in connection with the consummation of the transactions
contemplated by the Offer or the Merger including, without limitation, the fees
and expenses set forth on Schedule 4.7A.
Article VIII
Covenants of the Parties
------------------------
Section 8.1 Commercially Reasonable Efforts; Notice.
(a) Subject to the terms and conditions of this Agreement, each party
will use its commercially reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things reasonably necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the Offer, the Merger and the other transactions contemplated by this
Agreement. Without limiting the generality of the foregoing, each party shall
use its commercially reasonable efforts and cooperate in preparing and filing as
soon as practicable, notifications under the HSR Act and the Foreign Filings
(the filing fees thereunder shall be shared equally by Logitech Subsidiary and
the Company) and to respond as promptly as practicable to any inquiries or
requests received from any Governmental Entity for additional information or
documentation.
(b) The Company shall give prompt notice to Logitech Subsidiary upon
becoming aware that any representation or warranty made by it contained in this
Agreement was, in any material respect, untrue or inaccurate when made or has
become untrue or inaccurate in any material respect, or of any failure of the
Company to comply with or satisfy in any material respect any covenant,
condition or agreement to be complied with or satisfied by it under this
Agreement; provided, however, that no such notification shall affect the
representations, warranties, covenants or agreements of the parties or the
conditions to the obligations of the parties under this Agreement.
(c) Logitech Subsidiary shall give prompt notice to the Company upon
becoming aware that any representation or warranty made by it or Merger Sub
contained in this Agreement was, in any material respect, untrue or inaccurate
when made or has become untrue or inaccurate in any material respect, or of any
failure of Parent, Logitech Subsidiary or Merger Sub to comply with or satisfy
in any material respect any covenant, condition or agreement to be complied with
or satisfied by it under this Agreement; provided, however, that no such
notification shall affect the representations, warranties, covenants or
agreements of the parties or the conditions to the obligations of the parties
under this Agreement.
Section 8.2 Conveyance Tax Filings. Logitech Subsidiary, Merger Sub and
the Company shall cooperate in the preparation, execution and filing of all
returns, questionnaires, applications, or other documents regarding any real
property transfer or gains, sales, use, transfer, value added, stock transfer
and stamp taxes, any transfer, recording, registration and other fees, and any
similar taxes which become payable in connection with the transactions
contemplated hereunder that are required or permitted to be filed on or before
the Effective Time.
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Section 8.3 Conveyance Taxes. Logitech Subsidiary shall timely pay or
cause to be paid any real property transfer or gains, sales, use, transfer,
value added, stock transfer and stamp taxes, any transfer, recording,
registration and other fees, and any similar taxes imposed upon the Company
which become payable in connection with the transactions contemplated hereunder.
Section 8.4 Third Party Consents. As soon as practicable following the
date hereof, Logitech Subsidiary, Merger Sub and the Company will each use
commercially reasonable efforts to obtain any consents, waivers and approvals
under any of its or its subsidiaries' respective agreements, contracts, licenses
or leases required to be obtained in connection with the consummation of the
transactions contemplated hereby.
Section 8.5 Special Meeting; Company Disclosure Documents.
(a) If required by applicable law in order to consummate the Merger,
the Company, acting through its Board of Directors, shall, prior to the
termination of this Agreement and in accordance with applicable law:
(i) duly call, give notice of, convene and hold a special
meeting of its stockholders (the "Special Meeting") as soon as
reasonably practicable following the acceptance for payment and
purchase of Shares by the Purchaser pursuant to the Offer for the
purpose of considering and taking action upon this Agreement;
(ii) prepare and file with the SEC a post-effective amendment
to the Form F-4 for the offer and sale of the Parent Registered Shares
represented by Parent ADSs pursuant to the Merger and in which a proxy
statement or information statement pursuant to Rule 14c-2 under the
Exchange Act prepared by the Company and Logitech Subsidiary relating
to the Special Meeting (as amended or supplemented from time to time,
the "Proxy Statement"), as applicable, which will be included as a
prospectus (the "Post-Effective Amendment");
(iii) subject to the applicable provisions of this Agreement
and the fiduciary duties of the Company Board, include in the Proxy
Statement the recommendation of the Company Board that stockholders of
the Company vote in favor of the approval of the Merger and the
adoption of this Agreement; and
(iv) use its commercially reasonable efforts to solicit from
holders of Shares proxies in favor of the Merger and shall take all
other action reasonably necessary or advisable to secure the approval
of stockholders required by the MBCL to effect the Merger.
(b) Logitech Subsidiary agrees that it will vote, or cause to be voted,
all of the Shares then owned by it or any of its other subsidiaries and
affiliates in favor of the approval of the Merger and the adoption of this
Agreement.
(c) Each of the Company and Logitech Subsidiary shall notify the other
(and their respective counsel) promptly of the receipt of any comments from the
SEC or its staff and of any request by the SEC or its staff for amendments or
supplements to the Post-Effective Amendment or
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the Proxy Statement for additional information and shall supply the other with
copies of all correspondence between it or any of its representatives, on the
one hand, and the SEC or its staff, on the other hand, with respect to the
Post-Effective Amendment or the Proxy Statement. Each of the Company and
Logitech Subsidiary shall use its commercially reasonable efforts to respond as
promptly as practicable to any comments of the SEC with respect thereto. No
filing of, or amendment or supplement to, or correspondence to the SEC or its
staff with respect to, the Post-Effective Amendment or the Proxy Statement will
be made by either party, without providing the other party a reasonable
opportunity to review and comment thereon. Each of the Company and Logitech
Subsidiary shall use its commercially reasonable efforts to have the
Post-Effective Amendment declared effective under the Securities Act as promptly
as practicable after its filing. The Company will use its commercially
reasonable efforts to cause the Proxy Statement to be mailed to holders of the
Company's capital stock as promptly as practicable after the Post-Effective
Amendment is declared effective under the Securities Act. Parent shall also take
any action (other than qualifying to do business in any jurisdiction in which it
is not now so qualified or to file a general consent to service of process)
required to be taken under any applicable state securities laws in connection
with the issuance of Parent ADSs pursuant to the Offer and the Merger, and the
Company shall furnish all information concerning the Company and its
stockholders as may be reasonably requested in connection with any such action
and the preparation, filing and/or distribution of the Proxy Statement. If at
any time prior to the Effective Time any information relating to the Company or
Parent or Logitech Subsidiary or any of their respective affiliates, officers or
directors, should be discovered by the Company or Logitech Subsidiary which
should be set forth in an amendment or supplement to any of the Post-Effective
Amendment or the Proxy Statement, so that any of such documents would not
include a misstatement of a material fact or omit to state any material fact
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading, the party which discovers such information
shall promptly notify the other parties hereto, and an appropriate amendment or
supplement describing such information shall be promptly filed with the SEC and,
to the extent required by law, disseminated by the Company to holders of the
Company's capital stock.
(d) Notwithstanding Section 8.5(a), (b) or (c) hereof, in the event
that Parent, Logitech Subsidiary, Merger Sub or any other subsidiary of Parent
shall acquire at least 90% of the outstanding shares of each class of capital
stock of the Company entitled to vote on the Merger, pursuant to the Offer or
otherwise, the parties hereto agree, at the request of Logitech Subsidiary and
subject to Article 10 hereof, to take all necessary and appropriate action to
cause the Merger to become effective as soon as practicable after such
acquisition, without a meeting of stockholders of the Company, in accordance
with Section 82 of the MBCL.
Section 8.6 Affiliates of the Company. The Company has delivered
herewith written agreements substantially in the form attached hereto as Exhibit
B executed by, to the Company's knowledge, all "affiliates" of the Company for
purposes of Rule 145 under the Securities Act ("Rule 145") as of the date
hereof. Promptly following consummation of the Offer, the Company shall use
commercially reasonable efforts to deliver to Logitech Subsidiary a letter
identifying all other persons who, to the Company's knowledge, may, at the time
of the commencement of the Offer and/or the time this Agreement is submitted to
the holders of Shares for approval, be deemed to be
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"affiliates" of the Company for purposes of Rule 145, except to the extent the
Company and Lighting Subsidiary shall otherwise agree that Rule 145 does not
apply to Shares tendered pursuant to the Offer. The Company shall, except to the
extent the Company and Lighting Subsidiary shall otherwise agree that Rule 145
does not apply to Shares tendered pursuant to the Offer, use commercially
reasonable efforts to cause each such other person who is a holder of Shares at
the commencement of the Offer and/or following consummation of the Offer to
deliver to Logitech Subsidiary, prior to the Closing Date, a written agreement
substantially in the form attached hereto as Exhibit B.
Article IX
Conditions to the Merger
------------------------
Section 9.1 Conditions to Obligations of Each Party. The obligations of
the Company, Logitech Subsidiary and Merger Sub to consummate the Merger are
subject to the satisfaction of each of the following conditions:
(i) the approval of the stockholders of the Company shall have
been obtained, if required;
(ii) any applicable waiting period under the HSR Act and any
Foreign Filings shall have expired or been terminated;
(iii) no Governmental Entity shall have enacted, enforced,
promulgated, amended or issued any statute, rule, regulation,
legislation, decree, temporary restraining order, preliminary or
permanent injunction or other order that prohibits the consummation of
the Merger; and
(iv) Merger Sub (or Parent or Logitech Subsidiary) shall have
purchased Shares pursuant to the Offer.
Article X
Termination
-----------
Section 10.1 Termination. This Agreement may be terminated and the
Merger may be abandoned at any time prior to the Effective Time (notwithstanding
any approval of this Agreement by the stockholders of the Company):
(i) by mutual written consent of the Company, Logitech
Subsidiary and Merger Sub;
(b) by either the Company or Logitech Subsidiary as follows:
(i) if the Offer shall not have been consummated on or before
July 15, 2001; provided, however, that the right to terminate this
Agreement under this Section 10.1(b)(i) shall not be available to any
party whose failure to fulfill any obligation under this
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Agreement shall have been the cause of, or resulted in, the failure of
Logitech Subsidiary to consummate the Offer;
(ii) if the Special Meeting (including as it may be adjourned
from time to time) shall have concluded without approval by the
Company's stockholders of the Merger and this Agreement; provided,
however, that Logitech Subsidiary may not terminate this Agreement
under this Section 10.1(b)(ii) if the Shares owned by Parent, Logitech
Subsidiary or Merger Sub or any other subsidiary or affiliate of Parent
that can be voted by them under applicable law shall not all have been
voted in favor of the Merger and this Agreement;
(iii) if there shall be any applicable law or regulation that
makes consummation of the Merger illegal or if any Governmental Entity
shall have issued an order, decree or ruling, or taken any other action
(which such order, decree, ruling or other action the parties hereto
shall use their reasonable efforts to lift), in each case permanently
enjoining, restraining or otherwise prohibiting the Merger and the
consummation of the transactions contemplated by this Agreement, which
such order, decree, ruling or other action shall have become final and
non-appealable; or
(iv) if the Average Market Price is less than $18.00;
provided, however, that the Company or Logitech Subsidiary may exercise
their right to terminate this Agreement under this Section 10.1(b)(iv)
only prior to consummation of the Offer.
(c) by the Company:
(i) at any time prior to consummation of the Offer if:
(A) the representations and warranties of Logitech Subsidiary
and Merger Sub set forth in Article V of this Agreement (other than the
representations and warranties set forth in Sections 5.9 and 5.11(a)
above), when read without any exception or qualification as to
materiality or Material Adverse Effect, shall not have been true and
correct when made on the date of this Agreement (except for
representations and warranties that speak as of a specific date, which
shall not have been true and correct as of such date, as if made on
such date), except where the failure to be so true and correct would
not, individually or in the aggregate, be reasonably likely to have a
Material Adverse Effect; provided, however, that in no event may the
Company terminate this Agreement pursuant to this Section 10.1(c)(i)(A)
with respect to a failure of such representations and warranties to be
so true and correct that is reasonably capable of cure unless the
Company shall have given Logitech Subsidiary written notice that such
representations and warranties shall have failed to be so true and
correct and such failure is not cured within 20 business days after the
giving of such notice;
(B) the representations and warranties of Logitech Subsidiary
and Merger Sub set forth in Article V of this Agreement (other than the
representations and
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warranties set forth in Sections 5.9 and 5.11(a) above), when read
without any exception or qualification as to materiality or Material
Adverse Effect, shall not be true and correct at such time, as if made
at such time (except for representations and warranties that speak as
of a specific date, as to which this Section 10.1(c)(i)(B) shall not
apply), except where the failure to be so true and correct would not,
individually or in the aggregate, be reasonably likely to have a
Substantial Adverse Effect; provided, however, that in no event may the
Company terminate this Agreement pursuant to this Section 10.1(c)(i)(B)
with respect to a failure of such representations and warranties to be
so true and correct that is reasonably capable of cure unless the
Company shall have given Logitech Subsidiary written notice that such
representations and warranties shall have failed to be so true and
correct and such failure is not cured within 20 business days after the
giving of such notice;
(C) the representations and warranties of Logitech Subsidiary
and Merger Sub set forth in Section 5.9 of this Agreement shall not
have been true and correct in all material respects when made on the
date of this Agreement and at such time, as if made at such time;
provided, however, that in no event may the Company terminate this
Agreement pursuant to this Section 10.1(c)(i)(C) with respect to a
failure of such representations and warranties to be so true and
correct that is reasonably capable of cure unless the Company shall
have given Logitech Subsidiary written notice that such representations
and warranties shall have failed to be so true and correct and such
failure is not cured within 20 business days after the giving of such
notice; or
(D) the representations and warranties of Logitech Subsidiary
and Merger Sub set forth in Section 5.11(a) of this Agreement shall not
have been true and correct when made on the date of this Agreement;
provided, however, that in no event may the Company terminate this
Agreement pursuant to this Section 10.1(c)(i)(D) with respect to a
failure of such representations and warranties to be so true and
correct that is reasonably capable of cure unless the Company shall
have given Logitech Subsidiary written notice that such representations
and warranties shall have failed to be so true and correct and such
failure is not cured within 20 business days after the giving of such
notice; or
(ii) at any time prior to consummation of the Offer if Logitech
Subsidiary and/or Merger Sub shall have breached or failed to perform any
material obligation of Logitech Subsidiary and/or Merger Sub under this
Agreement or shall have failed to comply with any material agreement or covenant
of Logitech Subsidiary and/or Merger Sub under this Agreement, but only if, with
respect to any breach or failure referred to in this Section 10.1(c)(ii) that is
reasonably capable of cure, the Company shall have given Logitech Subsidiary
written notice of any such breach or failure and such breach or failure is not
cured within 20 business days after the giving of such notice; or
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(d) by Logitech Subsidiary if:
(i) at any time prior to consummation of the Offer if:
(A) the representations and warranties of the Company set
forth in Article IV of this Agreement (other than the representations
and warranties set forth in Sections 4.5 and 4.8(a) above), when read
without any exception or qualification as to materiality or Material
Adverse Effect, shall not have been true and correct when made on the
date of this Agreement (except for representations and warranties that
speak as of a specific date, which shall not have been true and correct
as of such date, as if made on such date), except where the failure to
be so true and correct would not, individually or in the aggregate, be
reasonably likely to have a Material Adverse Effect; provided, however,
that in no event may Logitech Subsidiary terminate this Agreement
pursuant to this Section 10.1(d)(i)(A) with respect to a failure of
such representations and warranties to be so true and correct that is
reasonably capable of cure unless Logitech Subsidiary shall have given
the Company written notice that such representations and warranties
shall have failed to be so true and correct and such failure is not
cured within 20 business days after the giving of such notice;
(B) the representations and warranties of the Company set
forth in Article IV of this Agreement (other than the representations
and warranties set forth in Section 4.5 and 4.8(a) above), when read
without any exception or qualification as to materiality or Material
Adverse Effect, shall not be true and correct at such time, as if made
at such time (except for representations and warranties that speak as
of a specific date, as to which this Section 10.1(d)(i)(B) shall not
apply), except where the failure to be so true and correct would not,
individually or in the aggregate, be reasonably likely to have a
Substantial Adverse Effect; provided, however, that in no event may
Logitech Subsidiary terminate this Agreement pursuant to this Section
10.1(d)(i)(B) with respect to a failure of such representations and
warranties to be so true and correct that is reasonably capable of cure
unless Logitech Subsidiary shall have given the Company written notice
that such representations and warranties shall have failed to be so
true and correct and such failure is not cured within 20 business days
after the giving of such notice;
(C) the representations and warranties of the Company set
forth in Section 4.5 of this Agreement shall not have been true and
correct in all material respects when made on the date of this
Agreement and at such time, as if made at such time; provided, however,
that in no event may Logitech Subsidiary terminate this Agreement
pursuant to this Section 10.1(d)(i)(C) with respect to a failure of
such representations and warranties to be so true and correct that is
reasonably capable of cure unless Logitech Subsidiary shall have given
the Company written notice that such representations and warranties
shall have failed to be so true and correct and such failure is not
cured within 20 business days after the giving of such notice; or
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(D) the representations and warranties of the Company set
forth in Section 4.8(a) of this Agreement shall not have been true and
correct when made on the date of this Agreement; provided, however,
that in no event may Logitech Subsidiary terminate this Agreement
pursuant to this Section 10.1(d)(i)(D) with respect to a failure of
such representations and warranties to be so true and correct that is
reasonably capable of cure unless Logitech Subsidiary shall have given
the Company written notice that such representations and warranties
shall have failed to be so true and correct and such failure is not
cured within 20 business days after the giving of such notice; or
(ii) at any time prior to consummation of the Offer the
Company shall have breached or failed to perform any material
obligation of the Company under this Agreement or shall have failed to
comply with any material agreement or covenant of the Company under
this Agreement, but only if, with respect to any breach or failure
referred to in this Section 10.1(d)(ii) that is reasonably capable of
cure, Logitech Subsidiary shall have given the Company written notice
of any such breach or failure and such breach or failure is not cured
within 20 business days after the giving of such notice; or
(iii) a Triggering Event (as defined below) shall have
occurred.
For purposes of this Agreement, a "Triggering Event" shall be deemed to
have occurred if, prior to the Effective Time: (i) the Board of Directors of
Company or any committee thereof shall have approved or recommended to the
Company's stockholders any Acquisition Proposal, (ii) the Board of Directors of
the Company or any committee thereof shall for any reason have publicly
withdrawn or shall have amended or modified in a manner adverse to Logitech
Subsidiary its recommendation in favor of the Offer, the adoption and approval
of the Agreement or the approval of the Merger (the "Recommendations"); (iii)
Company shall have failed to include the Recommendations in the Offer Documents
or the Schedule 14D-9; (iv) the Company shall have breached the provisions of
Section 6.3 in any material respect; or (v) an Acquisition Proposal shall have
been commenced or otherwise publicly announced by a person unaffiliated with
Logitech Subsidiary, and the Company shall not, within 10 business days after
such commencement or public announcement, publicly recommended to the Company's
stockholders rejection of such Acquisition Proposal, provided, however, that in
no event shall a Triggering Event include a "stop look and listen" communication
of the nature contemplated in Rule 14d-9(f) under the Exchange Act with respect
to an unsolicited tender offer or exchange offer that, if concluded in
accordance with the terms thereof, would constitute or result in an Acquisition
Proposal.
The party desiring to terminate this Agreement pursuant to this Section
10.1 (other than pursuant to Section 10.1(a) above) shall give notice of such
termination to the other party.
Section 10.2 Effect of Termination. If this Agreement is terminated
pursuant to Section 10.1, this Agreement shall become void and have no effect
without any liability or obligation on the part of any party hereto, (a) other
than liabilities and obligations under the Confidentiality Agreement and (b)
except as provided in Section 11.1(b) and Section 11.3 below and except that no
such
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termination shall relieve any party thereto of any liability for damages
resulting from any willful breach by such party of this Agreement.
Article XI
Miscellaneous
-------------
Section 11.1 Costs and Expenses. Except as otherwise provided in this
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby will be paid by the party incurring such
expenses; provided, however, that Logitech Subsidiary and the Company shall
share equally the costs and expenses (other than legal and accounting fees)
incurred in connection with the filing, printing and mailing of the Offer
Documents and all regulatory filings.
(b) If Logitech Subsidiary shall have terminated this Agreement
pursuant to Section 10.1(d)(iii), the Company shall promptly, but in any event
no later than one business day after the date of such termination, pay Logitech
Subsidiary a fee equal to $4,500,000 in immediately available funds (the
"Termination Fee"). In addition, if this Agreement is terminated by Logitech
Subsidiary or the Company, as applicable, prior to the Effective Time pursuant
to Section 10.1(b)(i) without any material failure by Logitech Subsidiary to
fulfill any obligation under this Agreement having been the primary cause of the
failure of Logitech Subsidiary to consummate the Offer, and (i) following the
date of this Agreement and prior to the termination of this Agreement, any
Acquisition Proposal shall have been publicly announced or shall have become
publicly known, and (ii) within 12 months following the termination of this
Agreement, either a Company Acquisition (as defined below) is consummated, or
the Company shall enter into an agreement providing for a Company Acquisition,
then the Company shall pay Logitech Subsidiary the Termination Fee promptly and
as a condition to so consummating or entering into a definitive agreement. The
Company acknowledges that the agreements contained in this Section 11.1(b) are
an integral part of the transactions contemplated by this Agreement, and that,
without these agreements, Logitech Subsidiary would not enter into this
Agreement. Accordingly, if the Company fails to pay in a timely manner the
amounts due pursuant to this Section 11.1(b), and, in order to obtain such
payment, Logitech Subsidiary makes a claim that results in a judgment against
the Company, the Company shall pay to Logitech Subsidiary its reasonable costs
and expenses (including reasonable attorneys' fees and expenses) in connection
with such suit, together with interest on the amounts set forth in this Section
11.1(b) at the prime rate Bank of America N. T. and S. A. in effect on the date
such payment was required Logitech Subsidiary to be made. Logitech Subsidiary
agrees that the payment provided for in this Section 11.1(b) shall be the sole
and exclusive remedy of Logitech Subsidiary and Merger Sub upon termination of
this Agreement where such fee has been paid, and such remedies shall be limited
to the sum stipulated in this Section 11.1(b), regardless of the circumstances
giving rise to such termination; provided, however, that nothing herein shall
relieve either party hereto from liability for the willful breach of, or fraud
in connection with, any of its representations, warranties, covenants or
agreements set forth in this Agreement.
For the purposes of this Agreement, "Company Acquisition" shall mean
any of the following transactions (other than the transactions contemplated by
this Agreement): (i) a sale or other
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disposition by Company of a business or assets representing more than 35% of the
consolidated net revenues, net income or assets of the Company immediately prior
to such sale; (ii) the acquisition by any person or group (including by way of a
tender offer or an exchange offer or issuance by the Company), directly or
indirectly, of beneficial ownership or a right to acquire beneficial ownership
of shares representing more than 35% of any class of equity securities of
Company; or (iii) a merger, consolidation, business combination,
recapitalization, liquidation, dissolution or similar transaction involving the
Company (other than a transactions in which the Company's current stockholders
retain more than 65%, directly or indirectly, of the surviving or successor
corporation); it being understood that a widely distributed offering of Company
Common Stock shall not constitute a Company Acquisition.
Section 11.2 Notices. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing signed by
the sender, and shall be deemed duly given (a) on the date delivered if
personally delivered, (b) on the date sent by telecopier with automatic
confirmation by the transmitting machine showing the proper number of pages were
transmitted without error, (c) on the business day after being sent by Federal
Express or another recognized overnight mail service for next day or next
business day delivery, or (d) five business days after mailing, if mailed by
United States postage-prepaid certified or registered mail, return receipt
requested, in each case addressed to following addresses (or at such other
address or telecopier number for a party as shall be specified by like notice):
(b) If to Logitech Subsidiary or Merger Sub, to:
650 Kaiser Drive
Fremont, California 94555
Telecopier No. (510) 795-7496
Attention: Kristen Onken
with a copy to:
Wilson Sonsini Goodrich &Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Telecopier No.: (650) 461-5375
Attention: Steven V. Bernard
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and a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Telecopier No.: (415) 947-2099
Attention: Steve L. Camahort
(c) if to the Company, to:
1499 SE Tech Center Plaza, Suite 350
Vancouver, Washington 98683
Telecopier No. (360) 896-2020
Attention: Robert G. Wick
with a copy to:
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telecopier No.: (212) 704-6288
Attention: Michael Weinsier
Section 11.3 Survival of Representations and Warranties. The
representations and warranties contained herein and in any certificate or other
writing delivered pursuant hereto shall not survive the Effective Time or the
termination of this Agreement. All covenants and agreements contained herein
which by their terms are to be performed in whole or in part subsequent to the
Effective Time shall survive the Merger in accordance with their terms. Nothing
contained in this Section 11.3 shall relieve any party from liability for any
willful breach of this Agreement.
Section 11.4 Amendment. Any provision of this Agreement may be amended,
modified, waived or supplemented prior to the Effective Time if, and only if,
such amendment or waiver is in writing and signed, in the case of an amendment,
by the Company, Logitech Subsidiary and Merger Sub or, in the case of a waiver,
by each party against whom the waiver is to be effective; provided, however,
that, after the approval of this Agreement by the stockholders of the Company,
there shall be no such amendment, modification, waiver or supplement that by law
requires further approval by the stockholders of the Company without the further
approval of such stockholders; provided, further, however, that after the
adoption of this Agreement by the stockholders of the Company, no such
amendment, modification, waiver or supplement shall, without the further
approval of such stockholders, (x) reduce the amount, or change the form, of the
Merger Consideration or (y) alter or
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change any of the other terms or conditions of this Agreement if such alteration
would adversely effect the holders of any shares of capital stock of the
Company.
Section 11.5 No Waiver. No failure or delay by any party 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. The
rights and remedies herein provided shall be cumulative and not exclusive of any
rights or remedies provided by law.
Section 11.6 Section Headings. The section headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
Section 11.7 Successors and Assigns; Guarantee of Merger Sub.
Obligations The provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto (including, without limitation, Parent) and
their respective successors and assigns; provided, however, that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other parties hereto. Parent hereby
unconditionally guarantees the full and punctual performance by Logitech
Subsidiary and Merger Sub of all of the obligations of Logitech Subsidiary and
Merger Sub or any of their assignees hereunder. The terms and provisions of
Sections 11.2, 11.4 through 11.6 and 11.8 through 11.14 and its obligations set
forth in Section 1.1(b) and the prior two sentences shall apply to Parent as if
such terms and provisions expressly applied to Parent (whether or not such terms
and provisions expressly apply to Parent), and the address for notices to Parent
shall be the same as the address for notices to Lighting Subsidiary set forth in
Section 11.2. In connection with the obligations of Parent under this Section
11.7, Parent hereby waives any and all rights, notices and defenses to which it
otherwise would or may be entitled as a surety or otherwise, under this
Agreement, any other agreement or applicable law.
Section 11.8 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of New York
that apply to agreements made and performed entirely within such state, except
that the MBCL shall apply to matters relating to the internal governance of the
Company and Merger Sub, the laws of Switzerland shall apply to matters relating
to the internal governance of Parent, and the California Corporations Code shall
apply to matters relating to the internal governance of Logitech Subsidiary.
Section 11.9 Jurisdiction. Each of the parties hereto hereby
irrevocably consents and submits to the exclusive jurisdiction of the United
States District Court for the Northern District of California in connection with
any dispute arising out of or relating to this Agreement or the transactions
contemplated hereby, waives any objection to venue in such District (unless such
court lacks jurisdiction with respect to such proceeding, in which case, each of
the parties hereto irrevocably consents to the jurisdiction of the courts of the
State of California in connection with such proceeding and waives any objection
to venue in the State of California), and agrees that service of any summons,
complaint, notice or other process relating to such dispute may be effected in
the manner provided by Section 11.2.
-50-
Section 11.10 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated herein is not affected in any manner
materially adverse to any party hereto.
Section 11.11 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, 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, including, without limitation, by way of subrogation;
provided, however, that Section 7.2 is intended for the benefit of the
indemnified parties referenced therein and may be enforced by such indemnified
parties.
Section 11.12 Public Announcements. Logitech Subsidiary and the Company
will consult with each other before issuing any press release or making any
public statement with respect to this Agreement and the transactions
contemplated hereby, and will not issue any such press release or make any such
public statement prior to such consultation, except as may be required by
applicable law, rule or regulation, or as otherwise permitted by this Agreement,
in which case reasonable efforts to consult with the other party will be made
prior to any such release or public statement.
Section 11.13 Entire Agreement. This Agreement, including any exhibits
or schedules hereto, and the Confidentiality Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement.
Section 11.14 Counterparts; Effectiveness. This Agreement may be signed
in one or more counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
[The next page is the signature page]
-51-
The parties have executed and delivered this Agreement and Plan of
Merger as of the date first written above.
Solely for the
purpose of Section
1.1(b) and Section
11.7:
LOGITECH INTERNATIONAL S.A.
By: /s/ Guerrino De Luca
--------------------------------------
Name: Guerrino De Luca
Title: President and CEO
By: /s/ Kristen Onken
--------------------------------------
Name: Kristen Onken
Title: Chief Financial Officer
[Seal] THUNDER ACQUISITION CORP.
By: /s/ Guerrino De Luca
--------------------------------------
Name: Guerrino De Luca
Title: President and CEO
By: /s/ Kristen Onken
--------------------------------------
Name: Kristen Onken
Title: Chief Financial Officer
LOGITECH INC.
By: /s/ Guerrino De Luca
--------------------------------------
Name: Guerrino De Luca
Title: President and CEO
By: /s/ Kristen Onken
--------------------------------------
Name: Kristen Onken
Title: Chief Financial Officer
[Seal] LABTEC INC.
By: /s/ Robert G. Wick
--------------------------------------
Name: Robert G. Wick
Title: President
By: /s/ Marc J. Leder
--------------------------------------
Name: Marc J. Leder
Title: Treasurer
S-1
Annex A
-------
CONDITIONS TO THE OFFER
Notwithstanding any other provision of this Agreement, Merger Sub shall
not be required to, and Logitech Subsidiary shall not be required to cause
Merger Sub to, accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to the Merger Sub's obligation to pay for or return tendered Shares promptly
after termination or withdrawal of the Offer), pay for, and may delay the
acceptance for payment of or, subject to the restriction referred to above, the
payment for, any Shares tendered pursuant to the Offer unless:
(i) there shall be validly tendered and not withdrawn prior to
the expiration of the Offer a number of Shares that, together with any
shares of Company Common Stock owned by Logitech Subsidiary, Merger Sub
or any direct or indirect subsidiaries or affiliates of either of them,
represents at least 67% of the number of Fully-Diluted Shares (as
defined below) (the "Minimum Condition"); and
(ii) any applicable waiting period under the HSR Act and any
Foreign Filings shall have expired or been terminated.
The term "Fully-Diluted Shares" shall mean, at any time, all shares of
Company Common Stock that are issued and outstanding at such time and all shares
of Company Common Stock that are issuable upon exercise, exchange or conversion
of securities of the Company that are exercisable or exchangeable for, or
convertible into, Company Common Stock at such time.
Furthermore, notwithstanding any other term of the Offer or this
Agreement, Merger Sub shall not be required to, and Logitech Subsidiary shall
not be required to cause Merger Sub to, accept for payment or, subject as
aforesaid, to pay, and may delay the acceptance for payment of or, subject to
the restriction referred to above, the payment for, any tendered Shares if at
any time on or after the date of the Agreement and before the time of acceptance
for payment for any such Shares, any of the following conditions exists:
(a) if, after the date of this Agreement, there shall have
been threatened or pending any suit, action or proceeding by any
Governmental Entity against the Parent, Logitech Subsidiary, Merger
Sub, the Company or any subsidiary of the Company (i) seeking to make
illegal, restrain or prohibit (A) the making of the Offer, the
acceptance for payment of, or payment for, any Shares by Logitech
Subsidiary, or (B) or the consummation of the Merger, or (ii) seeking
to prohibit or impose any material limitations on Parent's, Logitech
Subsidiary's or Merger Sub's ownership or operation (or that of any of
their respective subsidiaries or affiliates) of all or a material
portion of their or the Company's businesses or assets, or to compel
Logitech Subsidiary, Merger Sub or their respective subsidiaries and
affiliates to dispose of or hold separate any material portion of the
business or assets of the Company or Parent and their respective
subsidiaries, in each case
A-1
taken as a whole, or (iii) seeking to impose material limitations on
the ability of the Parent, Logitech Subsidiary or Merger Sub
effectively to exercise full rights of ownership of the Shares,
including, without limitation, the right to vote the Shares purchased
by it on all matters properly presented to the Company's stockholders;
(b) there shall have been (i) entered, enforced or issued by
any court of competent jurisdiction any judgment, order, injunction or
decree that makes illegal, restrains or prohibits the making of the
Offer, the acceptance for payment of, or the payment for, any Shares,
by Parent, Logitech Subsidiary or Merger Sub or (ii) any statute, rule,
regulation, legislation or interpretation enacted, enforced,
promulgated, amended or issued by any Governmental Entity applicable to
(A) Parent, Logitech Subsidiary or Merger Sub or the Company, or (B)
any transaction contemplated by this Agreement, that in either instance
would result, directly or indirectly, in any of the consequences
referred to in clause (i) to (iii) of paragraph (a) above;
(c) this Agreement shall have been terminated in accordance
with its terms;
(d) a Triggering Event;
(e) the representations and warranties of the Company set
forth in Article IV of this Agreement (other than the representations
and warranties set forth in Sections 4.5 and 4.8(a) above), when read
without any exception or qualification as to materiality or Material
Adverse Effect, shall not have been true and correct when made on the
date of this Agreement (except for representations and warranties that
speak as of a specific date, which shall not have been so true and
correct as of such date, as if made on such date), except where the
failure to be so true and correct would not, individually or in the
aggregate, be reasonably likely to have a Material Adverse Effect;
(f) the representations and warranties of the Company set
forth in Article IV of this Agreement (other than the representations
and warranties set forth in Section 4.5 and 4.8(a) above), when read
without any exception or qualification as to materiality or Material
Adverse Effect, shall not be so true and correct immediately prior to
the time of consummation of the Offer, as if made at such time (except
for representations and warranties that speak as of a specific date, as
to which this Section (f) shall not apply), except where the failure to
be so true and correct would not, individually or in the aggregate, be
reasonably likely to have a Substantial Adverse Effect;
(g) the representations and warranties of the Company set
forth in Section 4.5 of this Agreement shall not (i) have been true and
correct in all material respects when made on the date of this
Agreement and (ii) be true and correct in all material respects at the
time of consummation of the Offer, as if made at such time;
(h) the representations and warranties of the Company set
forth in Section 4.8(a) of this Agreement shall not have been true and
correct when made on the date of this Agreement;
A-2
(i) the Company shall have breached or failed to perform any
material obligation of the Company under this Agreement or shall have
failed to comply with any material agreement or covenant of the Company
under this Agreement;
(j) if, after the date of this Agreement, there shall have
occurred (i) any general suspension of trading in, or limitation on
prices for, securities on the Swiss Stock Exchange or on the Nasdaq
National Market, for a period in excess of 24 hours (excluding
suspensions or limitations resulting solely from physical damage or
interference with such exchanges not related to market conditions),
(ii) a declaration of a banking moratorium or any suspension of
payments in respect of banks in Switzerland or the United States
(whether or not mandatory), (iii) any limitation (whether or not
mandatory) by any United States or Swiss governmental authority on the
extension of credit generally by banks or other financial institutions,
or (iv) in the case of any of the foregoing existing at the time of the
commencement of the Offer, a material acceleration or worsening
thereof; or
(k) the Form F-4 shall not have been declared effective by the
Securities and Exchange Commission or a stop order suspending the
effectiveness of the Form F-4 shall have been issued and not withdrawn.
The foregoing conditions are for the sole benefit of Logitech
Subsidiary and Merger Sub and may be waived by Logitech Subsidiary and Merger
Sub, in whole or in part at any time and from time to time in their sole
discretion, subject in each instance to the terms of this Agreement. The failure
by Logitech Subsidiary or Merger Sub at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right; the waiver of
any such right with respect to particular facts and circumstances shall not be
deemed a waiver with respect to any other facts and circumstances; and each such
right shall be deemed an ongoing right that may be asserted at any time and from
time to time.
Exhibit A
---------
STOCKHOLDER AGREEMENT
This Stockholder Agreement (as the same may be amended, supplemented or
modified in accordance with the terms hereof, this "Agreement") is entered into
as of February 7, 2001 between Logitech Inc., a California corporation (together
with its successors and assigns, "Logitech Subsidiary"), and [Sun Multimedia
Partners, L.P.] [Sun Venture Capital Partners I, L.P.], a Delaware limited
partnership (together with its successors and assigns, the "Stockholder").
Recitals
--------
Stockholder owns beneficially and of record an aggregate of [1,936,861]
[95,300] shares (the "Initial Stockholder Shares") of common stock, par value
$.01 per share, of Labtec Inc., a Massachusetts corporation (the "Company").
Logitech Subsidiary, Logitech S.A., a Swiss Corporation ("Parent") and
the direct parent of Logitech Subsidiary, Thunder Acquisition Corp., a
Massachusetts corporation ("Merger Sub"), and the Company are parties to an
Agreement and Plan of Merger entered into as of the date hereof (as the same may
be amended, supplemented or modified in accordance with its terms, the "Merger
Agreement"). Capitalized terms used but not defined herein have the meanings
assigned to them in the Merger Agreement.
The Merger Agreement provides, among other things, that Logitech
Subsidiary shall make the Offer to purchase each issued and outstanding share of
Common Stock for (i) the Cash Portion in cash per Share, without any interest
thereon and (ii) a fraction of a Parent ADS equal to the Stock Portion (the Cash
Portion and the Stock Portion are collectively referred to as the "Initial
Transaction Consideration"), and that Merger Sub shall thereafter merge with and
into the Company (the "Merger"), upon the terms and subject to the conditions
set forth in the Merger Agreement.
As a condition to the willingness of Parent, Logitech Subsidiary and
Merger Sub to enter into the Merger Agreement, and as an inducement to them to
do so, the Stockholder has agreed to tender the Stockholder Shares (as defined
in Section 1.1(a)(i) below) pursuant to the Offer, to vote all the Stockholder
Shares, and all other securities of the Company over which the Stockholder has
or controls voting power, in favor of the Merger, and is executing and
delivering herewith a lock-up agreement with respect to the Parent ADSs to be
received by the Stockholder in the Merger in the form attached hereto as Exhibit
A.
Agreement
---------
The parties agree as follows:
Article I
The Offer
---------
Section 1.1 Tender of Shares; No Withdrawal.
(a) Promptly, and in no even later than the fifteenth business day
following the commencement of the Offer or, if later, the fifth business day
following receipt of the applicable Offer Documents, the Stockholder shall
tender to the Exchange Agent:
(i) a letter of transmittal with respect to the Initial
Stockholder Shares (and any and all non-cash dividends, distributions,
rights, other shares of Common Stock of the Company or other securities
issued or issuable in respect thereof) (collectively, including the
Initial Stockholder Shares, the "Stockholder Shares") complying with
the terms of the Offer to Purchase (the "Offer to Purchase")
distributed by Logitech Subsidiary in connection with the Offer;
(ii) the certificates representing the Stockholder Shares; and
(iii) all other documents or instruments required to be
delivered pursuant to the terms of the Offer to Purchase and such
letter of transmittal.
(b) Prior to the termination of this Agreement, the Stockholder shall
not withdraw the tender of the Stockholder Shares effected in accordance with
Section 1.1(a); provided, however, that the Stockholder may decline to tender,
or may withdraw, any and all of the Stockholder Shares if, (i) the Company shall
terminate the Merger Agreement in accordance with its terms or (ii) without the
prior consent of the Stockholder, Logitech Subsidiary amends the Offer to (A)
reduce the Cash Portion or the Stock Portion, (B) reduce the number of shares of
Company Common Stock subject to the Offer, or (C) change the form of
consideration payable in the Offer.
Section 1.2 No Purchase. Logitech Subsidiary may allow the Offer to
expire without accepting for payment or paying for any Stockholder Shares, on
the terms and conditions set forth in the Offer to Purchase. If all Stockholder
Shares validly tendered and not withdrawn are not accepted for payment and paid
for in accordance with the terms of the Offer to Purchase, they shall be
returned to the Stockholder, whereupon they shall, prior to the termination of
this Agreement, continue to be held by the Stockholder subject to the terms and
conditions of this Agreement.
Article II
Consent and Voting
------------------
Section 2.1 Voting. The Stockholder hereby revokes any and all previous
proxies granted with respect to the Stockholder Shares. By entering into this
Agreement, the Stockholder hereby consents to the Merger Agreement and the
transactions contemplated thereby, including the Merger. So long as this
Agreement is in effect and has not been terminated, the Stockholder hereby
agrees to vote all Stockholder Shares now or hereafter acquired by the
Stockholder, and all other shares of Common Stock (and any other securities of
the Company with voting power) over which the Stockholder has or controls voting
power:
-2-
(a) in favor of adoption of the Merger Agreement and approval of the
Merger and the other transactions contemplated thereby;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the Merger Agreement; and,
(c) against any of the following actions (other than those actions that
relate to the Merger and are contemplated by the Merger Agreement): (A) any
merger, consolidation, business combination, sale of assets, reorganization or
recapitalization of the Company with any party; (B) any dissolution, liquidation
or winding up of the Company; (C) any joint venture or material strategic
relationship with any party; (D) any material change in the capitalization of
the Company or the Company's capital structure; or (E) any other action that is
intended, or could reasonably be expected to impede, interfere with, delay,
postpone, discourage or adversely affect the Merger or any of the transactions
contemplated by the Merger Agreement
The Stockholder shall not commit or agree to take any action inconsistent with
the foregoing.
Section 2.2 Proxy. To fully implement the agreement of the Stockholder
set forth in Section 2.1 above, the Stockholder hereby irrevocably appoints
Logitech Subsidiary, its officers and designees, with full power of substitution
(each of Logitech Subsidiary, its officers and designees and its substitutes
being referred to herein as the "Proxy"), and each of them as the true and
lawful attorney and proxy of the Stockholder until the termination of this
Agreement, to vote all Stockholder Shares on matters as to which such
Stockholder is entitled to vote at a meeting of the stockholders of the Company
or to which such Stockholder is entitled to express consent or dissent to
corporate action in writing without a meeting of stockholders, in the Proxy's
absolute, sole and binding discretion, on the matters specified in Section 2.1
above. The Stockholder agrees that the Proxy may, prior to the termination of
this Agreement, in such Stockholder's name and stead, (i) attend any annual or
special meeting of the stockholders of the Company and vote all Stockholder
Shares at any such annual or special meeting as to the matters specified in
Section 2.1 above, and (ii) execute with respect to all Stockholder Shares any
written consent to, or dissent from, corporate action respecting any matter
specified in Section 2.1 above. Prior to the termination of this Agreement, the
Stockholder agrees to refrain from, without the prior written consent of
Logitech Subsidiary, (x) voting the Stockholder Shares of such Stockholder at
any annual or special meeting of the stockholders of the Company in any manner
inconsistent with the terms of this Agreement, (y) executing any written consent
in lieu of a meeting of the stockholders of the Company in any manner
inconsistent with the terms of this Agreement, and (z) granting any proxy or
authorization to any person with respect to the voting of the Stockholder
Shares, except pursuant to this Agreement, or taking any action contrary to or
in any manner inconsistent with the terms of this Agreement. The Stockholder
agrees that this grant of proxy and appointment of attorney is irrevocable and
coupled with an interest and agrees that the person designated as Proxy pursuant
hereto may at any time name any other person as its substituted Proxy to act
pursuant hereto, either as to a specific matter or as to all matters.
Section 2.3 Transfer.
-3-
(a) Until this Agreement is terminated, the Stockholder shall not,
directly or indirectly: (i) offer to sell, sell short, transfer (including
gift), assign, pledge or otherwise dispose of (each, a "Transfer") any interest
in, or encumber with any Lien (as defined in Section 3.5 below), any of the
Stockholder Shares; (ii) enter into any contract, option, put, call, "collar" or
other agreement or understanding with respect to any Transfer of any or all of
the Stockholder Shares or any interest therein; (iii) deposit the Stockholder
Shares into a voting trust or enter into a voting agreement or arrangement with
respect thereto; or (iv) take any other action with respect to the Stockholder
Shares that would in any way restrict, limit or interfere with the performance
of its obligations hereunder.
(b) Until this Agreement is terminated, any and all certificates
evidencing the Stockholder Shares shall bear the following legend:
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT
TO CERTAIN RESTRICTIONS ON TRANSFER PURSUANT TO A STOCKHOLDER AGREEMENT
BETWEEN LOGITECH INC. AND [SUN MULTIMEDIA PARTNERS, L.P.] [SUN VENTURE
CAPITAL PARTNERS I, L.P.] ANY TRANSFER OF SUCH SHARES OF COMMON STOCK
IN VIOLATION OF THE TERMS OF SUCH AGREEMENT SHALL BE NULL AND VOID AND
OF NO EFFECT WHATSOEVER. A COPY OF THE AGREEMENT, AS THE SAME MAY BE
AMENDED FROM TIME TO TIME, IS AVAILABLE FOR INSPECTION AT THE OFFICES
OF THE COMPANY.
Article III
Representations and Warranties of the Stockholder
-------------------------------------------------
The Stockholder represents and warrants to Logitech Subsidiary that:
Section 3.1 Existence and Power. The Stockholder is duly organized,
validly existing and in good standing under the laws of the State of Delaware
and has all power and authority to consummate the transactions contemplated
hereby.
Section 3.2 Corporate Authorization. The Stockholder has the power to
execute, deliver and perform this Agreement, and has taken all necessary action
to authorize the execution, delivery and performance by it of this Agreement and
such related documents. This Agreement has been duly executed and delivered by
the Stockholder and, assuming due and valid authorization, execution and
delivery by Logitech Subsidiary, constitutes a valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms, except as such enforceability may be limited by (a) applicable
bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance or
other similar laws and principles now or hereafter in effect, affecting
creditors' rights generally, (b) rules or principles of equity affecting the
enforcement of obligations generally, whether at law, in equity or otherwise, or
(c) the exercise of the discretionary powers or any court or other authority
before which a proceeding may be brought seeking equitable remedies, including
specific performance and injunctive relief.
Section 3.3 Governmental Authorization. The execution, delivery and
performance by the Stockholder of this Agreement and the consummation by the
Stockholder of the transactions
-4-
contemplated hereby do not require the Stockholder to obtain any consent of, or
to make any filing with, any Governmental Entity other than: (a) compliance with
any applicable requirements of the HSR Act; (b) compliance with any applicable
requirements of the Exchange Act; and (c) such other consents and filings which,
if not obtained or made, would not have a material adverse effect on the ability
of the Stockholder to consummate the transactions contemplated hereby.
Section 3.4 Non-Contravention. The execution, delivery and performance
by the Stockholder of this Agreement and the consummation by the Stockholder of
the transactions contemplated hereby do not and will not, (a) contravene or
conflict with any organizational document of the Stockholder, (b) contravene or
conflict with, or constitute a violation of, any provision of any law,
regulation, judgment, injunction, order or decree binding upon the Stockholder
or any of its properties or assets, (c) with or without the giving of notice or
passage of time or both, constitute a breach or default under any agreement,
contract or other instrument binding upon the Stockholder or, to the
Stockholder's knowledge, the Company, or (d) result in the creation or
imposition of any Lien on the Stockholder Shares, except with respect to the
foregoing clauses (c) or (d) such contraventions, conflicts, violations,
breaches, defaults or Liens which would not, individually or in the aggregate,
be reasonably likely to have a material adverse effect on the ability of the
Stockholder to consummate the transactions contemplated hereby.
Section 3.5 Ownership. The Stockholder is the sole, true, lawful record
and beneficial owner of the Stockholder Shares (other than to the extent that
beneficial ownership may be attributed to others under Rule 13d-3 under the
Exchange Act) and that, except as set forth on Schedule 3.5 hereto, there are no
restrictions on voting rights or rights of disposition pertaining to the
Stockholder Shares. The Stockholder will convey good and valid title to the
Stockholder Shares being acquired by Logitech Subsidiary pursuant to the Offer
or the Merger, as the case may be, free and clear of any and all liens,
restrictions, security interests or any encumbrances whatsoever, other than
restrictions under applicable securities laws (collectively, "Liens"). Section
3.6 Total Shares. The Stockholder Shares are the only shares of capital
stock of the Company beneficially owned by the Stockholder, the number and class
of the Stockholder Shares are set forth on Schedule 3.6 hereto and, except as
set forth on Schedule 3.6 hereto, the Stockholder has no option to purchase or
right to subscribe for or otherwise acquire any securities of the Company and
has no other interest in or voting rights with respect to any other securities
of the Company.
Article IV
Representations and Warranties of Logitech Subsidiary
-----------------------------------------------------
Logitech Subsidiary represents and warrants to the Stockholder that:
Section 4.1 Existence and Power. Logitech Subsidiary is a corporation,
duly organized, validly existing and in good standing under the laws of
California and has all corporate power and authority to consummate the
transactions contemplated hereby.
-5-
Section 4.2 Corporate Authorization. Logitech Subsidiary has the
corporate power to execute, deliver and perform this Agreement, and has taken
all necessary corporate action to authorize the execution, delivery and
performance by it of this Agreement and such related documents. This Agreement
has been duly executed and delivered by Logitech Subsidiary and, assuming due
and valid authorization, execution and delivery by the Stockholder, constitutes
a valid and binding obligation of Logitech Subsidiary, enforceable against
Logitech Subsidiary in accordance with its terms, except as such enforceability
may be limited by (a) applicable bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance or other similar laws and principles now or
hereafter in effect, affecting creditors' rights generally, (b) rules or
principles of equity affecting the enforcement of obligations generally, whether
at law, in equity or otherwise, or (c) the exercise of the discretionary powers
or any court or other authority before which a proceeding may be brought seeking
equitable remedies, including specific performance and injunctive relief.
Section 4.3 Governmental Authorization. The execution, delivery and
performance by Logitech Subsidiary of this Agreement and the consummation by
Logitech Subsidiary of the transactions contemplated hereby do not require
Logitech Subsidiary to obtain any consent of, or to make any filing with, any
Governmental Entity other than: (a) compliance with any applicable requirements
of the HSR Act and applicable antitrust or competition laws of foreign states;
(b) compliance with any applicable requirements of the Swiss Stock Exchange, the
Nasdaq National Market and the Exchange Act; and (c) such other consents and
filings which, if not obtained or made, would not have a material adverse effect
on the ability of Logitech Subsidiary to consummate the transactions
contemplated hereby.
Section 4.4 Non-Contravention. The execution, delivery and performance
by Logitech Subsidiary of this Agreement and the consummation by Logitech
Subsidiary of the transactions contemplated hereby do not and will not, (a)
contravene or conflict with the certificate of incorporation or bylaws of
Logitech Subsidiary, (b) contravene or conflict with, or constitute a violation
of, any provision of any law, regulation, judgment, injunction, order or decree
binding upon Logitech Subsidiary or any of its properties or assets, (c) with or
without the giving of notice or passage of time or both, constitute a breach or
default under any agreement, contract or other instrument binding upon Logitech
Subsidiary, or (d) result in the creation or imposition of any Lien on the
business, properties or assets of Logitech Subsidiary, except with respect to
the foregoing clauses (b), (c) or (d) such contraventions, conflicts,
violations, breaches, defaults or Liens which would not, individually or in the
aggregate, have a material adverse effect on the ability of Logitech Subsidiary
to consummate the transactions contemplated hereby.
Section 4.5 Acquisition for Logitech Subsidiary Account. Any
Stockholder Shares to be acquired upon consummation of the Offer will be
acquired by Logitech Subsidiary or Merger Sub for its or their own account and
not with a view to the public distribution thereof and will not be transferred
except in compliance with the Securities Act of 1933, and the rules and
regulations thereunder.
-6-
Article V
Additional Agreements
---------------------
Section 5.1 Agreement of the Stockholder. The Stockholder hereby
covenants and agrees that:
(a) From the date hereof until the earlier of the termination hereof
and the Effective Time, the Stockholder shall not (and it shall not permit any
of its officers, directors, agents or affiliates to), directly or indirectly,
take any action that would cause the Company to breach Section 6.3 of the Merger
Agreement. The Stockholder shall promptly notify Logitech Subsidiary after
receipt of any Acquisition Proposal or any request for nonpublic information
relating to the Company or any Company Subsidiary by any person that to the
Stockholder's knowledge may be considering making or has made an Acquisition
Proposal and shall keep Logitech Subsidiary informed of the status and details
of any such Acquisition Proposal or request.
(b) In the event of any change in the Company's capital stock by reason
of stock dividends, stock splits, mergers, consolidations, recapitalization,
combinations, conversions, exchanges of shares, extraordinary or liquidating
dividends, or other changes in the corporate or capital structure of the Company
which would have the effect of diluting or changing Logitech Subsidiary's rights
hereunder, the number and kind of shares or securities subject to this Agreement
and the price set forth herein at which the Stockholder Shares may be purchased
from the Stockholder pursuant to the Offer shall be appropriately and equitably
adjusted so that Logitech Subsidiary shall receive pursuant to the Offer the
number and class of shares or other securities or property that Logitech
Subsidiary would have received in respect of the Stockholder Shares purchasable
pursuant to the Offer if such purchase had occurred immediately prior to such
event.
(c) [The Stockholder shall promptly exercise any rights it has under
that certain letter agreement dated September 28, 2000 among the Stockholder,
the Company and The KB Mezzanine Fund II., L.P. ("KB") to cause KB to tender
and/or vote all shares of Common Stock of the Company over which KB has control
in the same manner as the Stockholder is required to tender and/or vote the
Stockholder Shares under this Agreement.]
Article VI
Miscellaneous
-------------
Section 6.1 Expenses. All costs and expenses incurred in connection
with this Agreement and the consummation of the transactions contemplated hereby
shall be paid by the party incurring such expenses[, except that the Company
shall bear the costs and expenses incurred by the Stockholder in connection with
this Agreement and the transactions contemplated hereby to the extent provided
in Section 4.19 of the Merger Agreement].
Section 6.2 Further Assurances. Logitech Subsidiary and the Stockholder
will execute and deliver or cause to be executed and delivered all further
documents and instruments and use
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its commercially reasonable efforts to secure such consents and take all such
further action as may be reasonably necessary in order to consummate the
transactions contemplated hereby.
Section 6.3 Specific Performance. The parties acknowledge and agree
that performance of their respective obligations hereunder will confer a unique
benefit on the other and that a failure of performance will not be compensable
by money damages. The parties therefore agree that this Agreement shall be
specifically enforceable and that specific enforcement and injunctive relief
shall be available to Logitech Subsidiary or the Stockholder for any breach by
the other party or parties of any agreement, covenant or representation
hereunder.
Section 6.4 Notices. All notices and other communications required or
permitted to be given pursuant to this Agreement shall be in writing signed by
the sender, and shall be deemed duly given (a) on the date delivered if
personally delivered, (b) on the date sent by telecopier with automatic
confirmation by the transmitting machine showing the proper number of pages were
transmitted without error, (c) on the business day after being sent by Federal
Express or another recognized overnight mail service for next day or next
business day delivery, or (d) five business days after mailing, if mailed by
United States postage-prepaid certified or registered mail, return receipt
requested, in each case addressed to following addresses (or at such other
address or telecopier number for a party as shall be specified by like notice):
(a) If to Logitech Subsidiary, to:
Logitech Inc.
6505 Kaiser Drive
Fremont, California 94555
Telecopier No. (510) 795-7496
Attention: Kristen Onken
with a copy to:
Wilson Sonsini Goodrich &Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Telecopier No.: (650) 461-5375
Attention: Steven V. Bernard
and a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market
Spear Tower, Suite 3300
San Francisco, California 94105
Telecopier No.: (415) 947-2099
Attention: Steve L. Camahort
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(b) if to the Stockholder, to:
c/o Sun Capital Partners, Inc.
5355 Town Center Road, Suite 802
Telecopier: (561) 394-0540
Boca Raton, Florida 33486
Attention: Marc J. Leder and Rodger R. Krouse
with a copy to:
Jenkens & Gilchrist Parker Chapin LLP
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Telecopier No.: (212) 704-6288
Attention: Michael Weinsier
Section 6.5 Survival of Representations and Warranties. The
representations and warranties contained in Articles III and IV of this
Agreement shall survive delivery of the Stockholder Shares pursuant to Section
1.1 hereof. None of the representations and warranties contained in this
Agreement shall survive the termination of this Agreement or (except for the
representations and warranties of the Stockholder in Sections 3.5 and 3.6) the
acceptance for payment and payment for the Stockholder Shares pursuant to the
Offer.
Section 6.6 Amendments; Termination. Any provision of this Agreement
may be amended, modified, waived for supplemented if, and only if, such
amendment, modification, waiver or supplement is in writing and signed, in the
case of an amendment, modification or supplement, by Logitech Subsidiary and the
Stockholder or, in the case of a waiver, by the party against whom the waiver is
to be effective. This Agreement shall terminate upon the earlier of (i) the
Effective Time and (ii) the termination of the Merger Agreement in accordance
with its terms. Upon any termination of this Agreement, the obligations of the
parties hereunder shall be of no further force or effect; provided, however,
that no termination of this Agreement shall relieve any party hereto from any
liability from any breach of any provision of this Agreement prior to
termination.
Section 6.7 Successors and Assigns. The provisions of this Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns; provided, however, that neither party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement without the consent of the other party.
Section 6.8 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York that apply to
agreements made and performed entirely within such state, except that the MBCL
shall apply to matters relating to the internal governance of the Company.
Section 6.9 Jurisdiction. Each of the parties hereto hereby irrevocably
consents and submits to the exclusive jurisdiction of the United States District
Court for the Northern District
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of California in connection with any dispute arising out of or relating to this
Agreement or the transactions contemplated hereby, waives any objection to venue
in such District (unless such court lacks jurisdiction with respect to such
proceeding, in which case, each of the parties hereto irrevocably consents to
the jurisdiction of the courts of the State of California in connection with
such proceeding and waives any objection to venue in the State of California),
and agrees that service of any summons, complaint, notice or other process
relating to such dispute may be effected in the manner provided by Section 6.4.
Section 6.10 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated herein is not affected in any manner
materially adverse to any party hereto.
Section 6.11 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto, and nothing in this
Agreement, express or implied, 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, including, without limitation, by way of subrogation.
Section 6.12 Stockholder Capacity. The Stockholder signs solely in its
capacity as the record holder and beneficial owner of the Stockholder Shares of
the Stockholder and nothing herein shall limit or affect any actions taken by
such Stockholder in his or her capacity as an officer or director of the Company
and no such actions shall be deemed a breach of this agreement.
Section 6.13 Entire Agreement. This Agreement, including any exhibits
or schedules hereto and the Confidentiality Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersede all other prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter of this Agreement.
Section 6.14 Counterparts; Effectiveness. This Agreement may be signed
in one or more counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto.
[The next page is the signature page]
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The parties have executed and delivered this Stockholder Agreement as
of the date first written above.
LOGITECH INC.
By:
----------------------------------
Name: Guerrino De Luca
Title: President and CEO
By:
----------------------------------
Name: Kristen Onken
Title: Chief Financial Officer
[SUN MULTIMEDIA PARTNERS, L.P]
[SUN VENTURE CAPITAL PARTNERS I, L.P.]
By:
----------------------------------
Name:
Title:
Exhibit A
---------
LOCK-UP AGREEMENT
February 7, 2001
Logitech Inc.
6505 Kaiser Drive
Fremont, California 94555-3615
RE: Labtec Inc. (the "COMPANY")
Ladies & Gentlemen:
The undersigned is an owner of record or beneficially of certain shares
of Common Stock of the Company ("COMMON STOCK"). The Company proposes to enter
into an Agreement and Plan of Merger with Logitech International S.A.,
("PARENT"), Logitech Inc., a wholly-owned subsidiary of Parent, and Thunder
Acquisition Corp. (the "MERGER AGREEMENT"). Pursuant to the terms of the Merger
Agreement, Merger Sub will make an exchange offer for all the outstanding shares
of the Company (the "OFFER") and subsequently Merger Sub will be merged with and
into the Company with the Company to be the surviving corporation in the merger
(the "MERGER"). The undersigned acknowledges that the transactions contemplated
by the Merger Agreement will be of significant benefit to the undersigned and
that you are relying on the representations and agreements of the undersigned
contained in this letter in carrying out and entering into the Merger Agreement.
As a result of the Offer or the Merger, the undersigned will receive
American Depositary Shares (each a "PARENT ADS"), each of which represents
one-tenth of one registered share, par value Chf 10 per share, of Parent (the
"PARENT REGISTERED SHARES").
In consideration of the foregoing, the undersigned hereby agrees that
from the date hereof, the undersigned will not offer to sell, contract to sell,
or otherwise sell, dispose of, loan, pledge or grant any rights with respect to
(collectively, a "DISPOSITION") any Parent ADSs now owned or hereafter acquired
directly by such person or with respect to which such person has or hereafter
acquires the power of disposition, otherwise than (i) as a distribution to
partners or shareholders of such person, provided that the distributees thereof
agree in writing to be bound by the terms of this restriction, or (ii) with the
prior written consent of Parent. The foregoing restrictions will terminate (i)
with respect to fifty percent (50%) of the number of Parent ADSs received as a
result of the Offer or the Merger on the 60th day after the completion of the
Offer, and (ii) in full 120 days after the Closing of the Offer (the "LOCK-UP
PERIOD"). The foregoing restriction has been expressly agreed to preclude the
holder of the Parent ADSs from engaging in any hedging or other transaction
which is designed to or reasonably expected to lead to or result in a
Disposition of any Parent ADSs during the Lock-Up Period, even if such Parent
ADSs would be disposed of by someone other than such holder. Such prohibited
hedging or other transactions would include, without limitation, any short sale
(whether or not against the box) or any purchase, sale or grant of any right
(including, without limitation, any put or call option)
S-1
with respect to any Parent ADSs or with respect to any security (other than a
broad-based market basket or index) that included, relates to or derives any
significant part of its value from Parent ADSs. The undersigned also agrees and
consents to the entry of stop transfer instructions with the Parent's transfer
agent and registrar against the transfer of Parent ADSs held by the undersigned
except in compliance with the foregoing restrictions.
Notwithstanding the foregoing, (i) the restrictions described above in
this letter agreement shall not apply to any Parent Registered Shares (A) now
owned or hereafter acquired directly by the undersigned (including Parent
Registered Shares received from the Depositary for the Parent ADSs upon
surrender of the American Depositary Receipt(s) representing the Parent ADSs) or
with respect to which the undersigned has or hereafter acquires the power of
disposition, or (B) that the undersigned may distribute to the partners or
shareholders of such person, and (ii) the surrender to the Depositary for the
Parent ADSs of any or all Parent ADSs to be received by the undersigned as a
result of either the Offer or the Merger shall not be considered a "Disposition"
for purposes of this letter agreement.
Notwithstanding any provision of this Agreement to the contrary, this
Agreement shall terminate upon termination of the Merger Agreement.
[The next page is the signature page]
S-2
This agreement is irrevocable and will be binding on the
undersigned and the respective successors, heirs, personal representatives, and
assigns of the undersigned. In the event the Offer has not been consummated on
or before July 15, 2001, this Lock-Up Agreement shall be of no further force or
effect.
SUN MULTIMEDIA PARTNERS, L.P.
By: SUN MULTIMEDIA ADVISORS, INC.,
its general partner
By: /s/ Rodger R. Krouse
------------------------------------
Name: Rodger R. Krouse
Title: Vice President
SUN VENTURE CAPITAL PARTNERS I, L.P.
By: SUN VENTURE CAPITAL ADVISORS, INC.,
its general partner
By: /s/ Rodger R. Krouse
------------------------------------
Name: Rodger R. Krouse
Title: Vice President
S-3
EXHIBIT B
---------
February 7, 2001
Logitech International S.A.
6505 Kaiser Drive
Fremont, CA 94555-3615
Ladies and Gentlemen:
The undersigned has been advised that, as of the date of this letter,
the undersigned may be deemed to be an "affiliate" of Labtec Inc., a
Massachusetts corporation (the "COMPANY"), as the term "affiliate" is defined
for purposes of paragraphs (c) and (d) of Rule 145 of the rules and regulations
(the "RULES AND REGULATIONS") of the Securities and Exchange Commission (the
"SEC") under the Securities Act of 1933, as amended (the "1933 Act"). Pursuant
to the terms of the Agreement and Plan of Merger dated as of February 7, 2001
(the "MERGER AGREEMENT") among the Company, Logitech International S.A., a Swiss
corporation ("PARENT"), Logitech Inc., a California corporation and wholly-owned
subsidiary of Parent and Thunder Acquisition Corp., a Massachusetts corporation
("MERGER SUB"), Merger Sub will make an exchange offer for all the outstanding
shares of the Company (the "OFFER") and subsequently Merger Sub will be merged
with and into the Company with the Company to be the surviving corporation in
the merger (the "MERGER").
As a result of the Offer or the Merger, the undersigned will receive
American Depository Shares (each a "PARENT ADS") of Parent in exchange for
shares owned by the undersigned of common stock, par value $0.01, of the Company
(the "COMPANY COMMON STOCK"). Each Parent ADS represents one-tenth of one
registered share, par value Chf 10 per share, of Parent (the "PARENT REGISTERED
SHARES", and together with the Parent ADSs, the "PARENT SECURITIES").
The undersigned represents, warrants and covenants to Parent and the
Company that, as of the respective date the undersigned receives any Parent
Securities as a result of either the Offer or the Merger:
A. The undersigned shall not make any sale, transfer or other
disposition of the Parent Securities in violation of the 1933 Act or the Rules
and Regulations.
B. The undersigned has read this letter and the Merger Agreement and
discussed, to the extent the undersigned felt necessary with the undersigned's
counsel or counsel for the Company, the requirements of such documents and other
applicable limitations upon the undersigned's ability to sell, transfer or
otherwise dispose of Parent Securities.
C. The undersigned has been advised that the issuance of Parent
Securities to the undersigned pursuant to the Offer or the Merger will be
registered with the SEC under the 1933 Act on a Registration Statement on Form
F-4. The undersigned has also been advised that, because, at the time the Offer
is made to the undersigned or the Merger is submitted for a vote of the
stockholders of the Company, the undersigned may be deemed an affiliate of the
Company, and, if the undersigned is such an affiliate, the undersigned may not
sell, transfer or otherwise dispose of Parent Securities issued to the
undersigned in the Offer or the Merger unless such sale, transfer or other
disposition (i) has been registered under the 1933 Act, (ii) is made in
conformity with Rule 145 promulgated by the SEC under the 1933 Act, (iii) in the
opinion of counsel reasonably acceptable to Parent, or pursuant to a "no action"
letter obtained by the undersigned from the SEC staff, is otherwise exempt from
registration under the 1933 Act, or (iv) with respect to Parent Securities
issued pursuant to the Offer, to the extent the Company and Logitech Inc. shall
otherwise agree that Rule 145 does not apply to such Parent Securities.
D. The undersigned understands that Parent is under no obligation to
register the sale, transfer or other disposition of the Parent Securities by the
undersigned or on the undersigned's behalf under the 1933 Act or to take any
other action necessary in order to enable the undersigned to make such sale,
transfer or other disposition in compliance with an exemption from such
registration.
E. The undersigned also understands that there will be placed on the
certificates for the Parent Securities issued to the undersigned, or on any
substitutions therefor, a legend stating in substance the following (provided
that, with respect to Parent Securities issued pursuant to the Offer, to the
extent the Company and Logitech Inc. shall otherwise agree that Rule 145 does
not apply to such Parent Securities, such legend shall not be placed on such
certificate):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED
IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES. THE SECURITIES REPRESENTED BY
THIS CERTIFICATE MAY BE SOLD, TRANSFERRED OR OTHERWISE
DISPOSED OF ONLY IN ACCORDANCE WITH THE TERMS OF A LETTER
AGREEMENT BETWEEN THE REGISTERED HOLDER HEREOF AND LOGITECH
INTERNATIONAL S.A., A COPY OF WHICH AGREEMENT IS ON FILE AT
THE PRINCIPAL OFFICES OF LOGITECH INTERNATIONAL S.A."
F. The undersigned also understands that, unless the transfer by the
undersigned of the undersigned's Parent Securities have been registered under
the 1933 Act or is a sale made in conformity with the provisions of Rule 145,
Parent reserves the right to put the following legend on the certificates issued
to the undersigned's transferee (provided that, with respect to Parent
Securities issued pursuant to the Offer, to the extent the Company and Logitech
Inc. shall otherwise agree that Rule 145 does not apply to such Parent
Securities, such legend shall not be placed on such certificate):
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933
AND WERE ACQUIRED FROM A PERSON WHO RECEIVED SUCH SECURITIES
IN A TRANSACTION TO WHICH RULE 145 PROMULGATED UNDER THE
SECURITIES ACT OF 1933 APPLIES. THE SECURITIES HAVE NOT BEEN
ACQUIRED BY THE HOLDER WITH A VIEW TO, OR FOR RESALE IN
CONNECTION WITH, ANY DISTRIBUTION THEREOF WITHIN THE MEANING
OF THE SECURITIES ACT OF 1933 AND MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN ACCORDANCE WITH AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OF 1933."
It is understood and agreed that, except as Parent may otherwise agree,
the legends set forth in paragraphs E and F above shall be removed by delivery
of substitute certificates without such legend if (i) the securities represented
thereby have been registered for sale by the undersigned under the 1933 Act or
(ii) Parent has received either an opinion of counsel, which opinion and counsel
shall be reasonably satisfactory to Parent, or a "no-action" letter obtained by
the undersigned from the SEC staff to the effect that the restrictions imposed
by Rule 145 under the 1933 Act no longer apply to the undersigned.
G. The undersigned further understands and agrees that the
representations, warranties, covenants and agreements of the
undersigned set forth herein are for the benefit of Parent, the
Company and the Surviving Corporation (as defined in the Merger
Agreement) and will be relied upon by such firms and their respective
counsel and accountants.
H. The undersigned understands and agrees that this letter
agreement shall apply to all Parent Securities that are acquired by
the undersigned in the Offer or the Merger.
Execution of this letter should not be considered an admission on the
part of the undersigned that the undersigned is an "affiliate" of the Company as
described in the first paragraph of this letter, nor as a waiver of any rights
that the undersigned may have to object to any claim that the undersigned is
such an affiliate on or after the date of this letter.
Very truly yours,
By:
-----------------------------------
Name:
Title:
Accepted this ___ day of _______________, 2001
LOGITECH INTERNATIONAL S.A.
By:
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Name:
Title:
By:
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Name:
Title: