EXECUTION COPY
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AGREEMENT AND PLAN OF MERGER
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MADE BY AND AMONG
▇▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY,
a Texas close corporation,
▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY,
a Delaware corporation,
TCC MERGER SUB, INC.,
a Delaware corporation,
CROW FAMILY PARTNERSHIP, L.P.
and
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TO BE EFFECTIVE AS OF
AUGUST 22, 1997
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of August
22, 1997, is made by and among ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company, a Texas close
corporation ("Texas TCC"), ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company, a Delaware corporation
("Delaware TCC"), TCC Merger Sub, Inc., a Delaware corporation and a wholly
owned subsidiary of Delaware TCC ("Merger Sub"), Crow Family Partnership,
L.P. ("Crow Family") and ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. Texas TCC and Merger Sub are
hereinafter collectively referred to as the "Constituent Corporations."
PRELIMINARY STATEMENTS
A. The respective Boards of Directors of Texas TCC and Merger Sub have
approved the merger of Merger Sub with and into Texas TCC, with Texas TCC
being the surviving corporation (the "Merger"). The respective Boards of
Directors of Texas TCC, Delaware TCC and Merger Sub have determined that it
is in their respective best interests and in the best interests of their
respective stockholders for the Merger to be effected upon the terms and
subject to the conditions set forth in this Agreement.
B. For federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended (the "Code"), and that the Merger
shall also be treated as a transfer of stock of Texas TCC from the
shareholders of Texas TCC to Delaware TCC in exchange for shares of capital
stock of Delaware TCC that, when considered together with the transfer by
Crow Family or its designee of certain intangible property to Delaware TCC in
exchange for shares of capital stock of Delaware TCC pursuant to the Trade
Name License Agreement (as defined herein), and the transfer of the proceeds
of the Initial Public Offering (as defined herein) to Delaware TCC in
exchange for shares of capital stock of Delaware TCC, constitutes a
transaction described in Section 351 of the Code. This Agreement is intended
to be and is adopted as a plan of reorganization within the meaning of
Treasury Regulation Section 1.368-1(c).
C. In connection with the Merger, Texas TCC, Delaware TCC and Merger
Sub desire to make certain representations, warranties, covenants and
agreements in connection with the Merger and also to prescribe various
conditions to the Merger.
AGREEMENTS
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements hereinafter set forth, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree
as follows:
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ARTICLE I
CERTAIN DEFINED TERMS
As used in this Agreement, the following terms have the meanings set forth
below:
"Class A Common Stock" means the Class A Common Stock, par value $0.01 per
share, of Texas TCC.
"Class B Common Stock" means the Class B Common Stock, par value $0.01 per
share, of Texas TCC.
"Class C Common Stock" means the Class C Common Stock, par value $0.01 per
share, of Texas TCC.
"Class D Common Stock" means the Class D Common Stock, par value $0.01 per
share, of Texas TCC.
"Class E Common Stock" means the Class E Common Stock, par value $0.01 per
share, of Texas TCC.
"Class A Conversion Number" means a number to be agreed upon by Texas TCC
and Delaware TCC at or prior to the Closing; provided, however, that the product
of the Class A Conversion Number multiplied by the number of shares of Class A
Common Stock issued and outstanding immediately prior to the Effective Time
shall equal 18.05% of the Post-Merger Shares Outstanding.
"Class B Conversion Number" means a number to be agreed upon by Texas TCC
and Delaware TCC at or prior to the Closing; provided, however, that the product
of the Class B Conversion Number multiplied by the number of shares of Class B
Common Stock issued and outstanding immediately prior to the Effective Time
shall equal 4.9% of the Post-Merger Shares Outstanding.
"Class C Conversion Number" means a number to be agreed upon by Texas TCC
and Delaware TCC at or prior to the Closing; provided, however, that the product
of the Class C Conversion Number multiplied by the number of shares of Class C
Common Stock issued and outstanding immediately prior to the Effective Time
shall equal 19.85% of the Post-Merger Shares Outstanding.
"Class D Conversion Number" means a number to be agreed upon by Texas TCC
and Delaware TCC at or prior to the Closing; provided, however, that the product
of the Class D Conversion Number multiplied by the number of shares of Class D
Common Stock issued and outstanding immediately prior to the Effective Time
shall equal 0.53% of the Post-Merger Shares Outstanding.
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"Class E Conversion Number" means a number to be agreed upon by Texas TCC
and Delaware TCC at or prior to the Closing; provided, however, that the product
of the Class E Conversion Number multiplied by the number of shares of Class E
Common Stock issued and outstanding immediately prior to the Effective Time,
shall equal 48.41% of the Post-Merger Shares Outstanding.
"Common Stock" means the Common Stock, par value $0.01 per share, of
Delaware TCC.
"Doppelt" means Doppelt & Company, an Ohio corporation.
"Doppelt Acquisition" means the acquisition of substantially all of the
assets of Doppelt by TCRS pursuant to the Acquisition Agreement dated as of
August 15, 1997, among Texas TCC, TCRS, Doppelt & Company and ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
"Doppelt Note" means the $6,000,000 Subordinated Promissory Note of Texas
TCC dated August 22, 1997 payable to the order of Doppelt.
"Doppelt Shares" means a number of shares of Common Stock equal to the
quotient obtained when (i) $6,000,000 is divided by (ii) the price per share at
which Common Stock is sold to the public in the Initial Public Offering, without
giving any effect to underwriters' discounts or commissions.
"Effective Time" has the meaning set forth in Section 2.1.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Final Prospectus" means the prospectus which is a part of the Registration
Statement and is to be delivered to potential purchasers of Common Stock in
connection with the Initial Public Offering.
"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
as amended.
"Initial Public Offering" means the initial public offering of shares of
Common Stock by Delaware TCC to be effected immediately following the
consummation of the Merger and the other transactions contemplated in this
Agreement.
"Material Adverse Effect" means, with respect to any Person, the occurrence
of any event, condition, circumstance or fact that has had, or could reasonably
be expected to have, a material adverse effect on the business, operations,
properties, conditions, results of operations, assets or liabilities of such
Person and its Subsidiaries, if any, taken as a whole.
"Merger" has the meaning set forth in the first Preliminary Statement of
this Agreement.
"Option" has the meaning set forth in Section 3.1(h).
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"Person" or "person" means any individual, corporation, limited liability
company, partnership, limited partnership, syndicate, person (including, without
limitation, a "person" as defined in Section 13(d)(3) of the Exchange Act),
trust, association or other legal entity or government, political subdivision,
agency or instrumentality of a government.
"Post-Merger Shares Outstanding" means the number of shares of Common Stock
to be issued and outstanding after giving effect to the issuance of the Trade
Name Shares and the conversion into Common Stock of all shares of Texas TCC
Capital Stock issued and outstanding immediately prior to the Effective Time, as
contemplated in Section 3.1; provided, however, that "Post-Merger Shares
Outstanding" shall not be deemed to include any shares of Common Stock which may
be issued or issuable (i) in exchange for the Doppelt Note as contemplated in
Section 4.6, (ii) upon the exercise of any Option, or (iii) in connection with
the Initial Public Offering.
"Post-IPO Shares Outstanding" means the number of shares of Common Stock to
be issued and outstanding after giving effect to: (i) the issuance of the Trade
Name Shares, (ii) the conversion into Common Stock of all shares of Texas TCC
Capital Stock issued and outstanding immediately prior to the Effective Time, as
contemplated in Section 3.1, (iii) the issuance of the Doppelt Shares, (iv) the
issuance of all shares of Common Stock reserved for issuance upon the exercise
of an Option, and (v) the issuance of shares of Common Stock in the Initial
Public Offering.
"Registration Statement" means the Registration Statement on Form S-1 to be
filed with the Securities and Exchange Commission in connection with the Initial
Public Offering, as the same may be amended or supplemented after the date of
its original filing.
"Securities Act" means the Securities Act of 1933.
"Shareholder Approval" means the approval, by the holders of 70% or more of
the shares of each class of Texas TCC Capital Stock, of the Merger, the
termination of the Texas TCC Shareholders Agreement and any other matters which
require the approval of the Shareholders of Texas TCC in order to consummate the
transactions contemplated in this Agreement.
"Subsidiary" means, with respect to any Person, any corporation or other
organization, whether incorporated of unincorporated, of which: (i) such Person
or any other Subsidiary of such Person is a general partner; or (ii) at least a
majority of the securities or other interests having by their terms ordinary
voting power to elect a majority of the Board of Directors or others performing
similar functions with respect to such corporation or other organization is,
directly or indirectly, owned or controlled by such Person or by any one or more
of such Person's Subsidiaries.
"TCRS" means ▇▇▇▇▇▇▇▇ ▇▇▇▇ Retail Services, Inc., a Delaware corporation
and a wholly-owned subsidiary of Texas TCC.
"Texas TCC Capital Stock" means the collective reference to Class A Common
Stock, Class B Common Stock, Class C Common Stock, Class D Common Stock and
Class E Common Stock.
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"Texas TCC Capital Stock Equivalents" means, without duplication with any
other Texas TCC Capital Stock or Texas TCC Capital Stock Equivalents, any
rights, warrants, options, convertible securities or indebtedness, exchangeable
securities or indebtedness, or other rights, exercisable for or convertible or
exchangeable into Texas TCC Capital Stock, whether at the time of issuance or
upon the passage of time or the occurrence of some future event.
"Texas TCC Shareholders Agreement" means the Fourth Amended and Restated
Shareholders' Agreement for ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company effective as of August 26,
1996, by and among Texas TCC, Texas TCC's shareholders and such shareholders'
respective spouses, as amended by the Authorization and Waiver effective as of
August 26, 1996 between the Company and Crow Family and the Consent and Waiver
effective as of August 26, 1996 among the Company, Crow Family, Crow Realty
Investors, L.P. and Mill Creek Holdings, LTD.
"Trade Name License Agreement" has the meaning set forth in Section 4.5(b).
"Trade Name Shares" means a number of shares of Common Stock issued in
exchange for the transfer of property under the Trade Name License Agreement to
be agreed upon by Texas TCC and Delaware TCC at or prior to the Closing;
provided, however, that the sum of 1,000 (which is the number of shares of
Common Stock originally issued by Delaware TCC to Crow Family) and the number of
Trade Name Shares shall equal 8.26% of the Post-Merger Shares Outstanding.
"Underwriting Agreement" means the Underwriting Agreement, providing for a
firm commitment underwriting, to be entered into among Delaware TCC and the
managing underwriters of the Initial Public Offering.
ARTICLE II
THE MERGER; CLOSING; OTHER ACTIONS
TO BE TAKEN AT THE CLOSING
Section 2.1 MERGER. Subject to the terms and conditions set forth in
this Agreement, at the Effective Time (hereinafter defined), Merger Sub shall be
merged with and into Texas TCC in accordance with the applicable provisions of
the Texas Business Corporation Act (the "TBCA") and the Delaware General
Corporation Law (the "DGCL"). As soon as practicable at or after the closing of
the Merger (the "Closing"), articles of merger, prepared and executed in
accordance with the relevant provisions of the TBCA (the "Articles of Merger"),
shall be filed with the Texas Secretary of State, and a certificate of merger,
prepared and executed in accordance with the relevant provisions of the DGCL
(the "Certificate of Merger") shall be filed with the Delaware Secretary of
State. The Merger shall become effective at such time as is provided in the
Articles of Merger and the Certificate of Merger, which time shall be on the
date of Closing (the "Effective Time").
Section 2.2 EFFECTS OF THE MERGER.
(a) At the Effective Time:
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(i) Merger Sub shall be merged with and into Texas TCC, the
separate existence of Merger Sub shall cease and Texas TCC shall continue as the
surviving corporation (for periods occurring after the Effective Time, Texas TCC
is sometimes referred to herein as the "Surviving Corporation");
(ii) the Articles of Incorporation of Texas TCC as in effect
immediately prior to the Effective Time shall be the Articles of Incorporation
of the Surviving Corporation, except that the Articles of Merger shall amend and
restate Articles One and Four of the Articles of Incorporation of Texas TCC to
read in their entirety as follows:
"ARTICLE ONE
The name of the corporation (the "Corporation") is ▇▇▇▇▇▇▇▇ ▇▇▇▇
Company."
and:
"ARTICLE FOUR
The title and number of shares of all classes of stock which the
Corporation shall have authority to issue is Three Thousand (3,000)
shares of Common Stock, par value $0.01 per share."
(iii) pursuant to Article 12.21(3) of the Texas Close
Corporation Law, Texas TCC shall terminate its status as a close corporation and
shall be a corporation subject to the provisions of the TBCA.
(iv) the Amended and Restated Bylaws attached hereto as EXHIBIT A
shall be the Bylaws of the Surviving Corporation.
(b) The initial directors and officers of the Surviving Corporation
shall be the individuals identified on EXHIBIT B, each of whom shall hold the
offices set forth opposite their respective names on EXHIBIT B, and such
directors and officers shall serve until their successors have been duly elected
or appointed and qualified or until their earlier death, resignation or removal
in accordance with the Surviving Corporation's Articles of Incorporation and
Bylaws.
Section 2.3 FURTHER ASSURANCES. If, at any time after the Effective
Time, the Surviving Corporation shall consider or be advised that any deeds,
bills of sale, assignments, assurances or any other actions or things are
necessary or desirable to vest, perfect or confirm of record or otherwise in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of either of the Constituent Corporations acquired
or to be acquired by the Surviving Corporation as a result of, or in connection
with, the Merger, or otherwise to carry out this Agreement, the officers and
directors of the Surviving Corporation shall be authorized to execute and
deliver, in the name and on behalf of each of the Constituent Corporations, or
otherwise, all such deeds, bills of sale, assignments and assurances and to take
and do, in the name and on behalf of each of the Constituent Corporations or
otherwise, all such other actions and things as may be necessary
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or desirable to vest, perfect or confirm any and all right, title and
interest in, to and under such rights, properties or assets in the Surviving
Corporation or otherwise to carry out this Agreement.
ARTICLE III
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; EXCHANGE OF CERTIFICATES
Section 3.1 EFFECT OF MERGER ON CAPITAL STOCK. At the Effective Time,
by virtue of the Merger and without any further action on the part of any holder
of any shares of Texas TCC Capital Stock or any shares of capital stock of
Merger Sub:
(a) CAPITAL STOCK OF MERGER SUB. Each issued and outstanding share
of capital stock of Merger Sub shall be converted into the right to receive one
fully paid and nonassessable share of common stock, par value $0.01 per share,
of the Surviving Corporation.
(b) CANCELLATION OF TEXAS TCC TREASURY STOCK AND DELAWARE TCC-OWNED
TCC TEXAS STOCK. Each share of Texas TCC Capital Stock that is owned by Texas
TCC as treasury stock and any shares of Texas TCC Capital Stock owned by
Delaware TCC, Merger Sub or any other direct or indirect wholly owned Subsidiary
of Texas TCC or Delaware TCC shall be canceled and retired and shall cease to
exist, and no stock of Delaware TCC or the Surviving Corporation or other
consideration shall be delivered or deliverable in exchange therefor.
(c) CLASS A COMMON STOCK. Subject to the provisions of Section
3.2(e) hereof, each share of Class A Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares to be canceled in
accordance with Section 3.1(b)) shall be converted into the right to receive a
number of shares of Common Stock equal to the Class A Conversion Number. All
such shares of Class A Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
have any rights with respect thereto, except the right to receive certificates
representing the shares of Common Stock issued in consideration therefor upon
surrender of such certificate in accordance with Section 3.2, without interest.
(d) CLASS B COMMON STOCK. Subject to the provisions of Section
3.2(e) hereof, each share of Class B Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares to be canceled in
accordance with Section 3.1(b)) shall be converted into the right to receive a
number of shares of Common Stock equal to the Class B Conversion Number. All
such shares of Class B Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive
certificates representing the shares of Common Stock issued in consideration
therefor upon the surrender of such certificate in accordance with Section 3.2,
without interest.
(e) CLASS C COMMON STOCK. Subject to the provisions of Section
3.2(e) hereof, each share of Class C Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares to be canceled in
accordance with Section 3.1(b)) shall be converted into the
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right to receive a number of shares of Common Stock equal to the Class C
Conversion Number. All such shares of Class C Common Stock, when so
converted, shall no longer be outstanding and shall automatically be canceled
and retired and shall cease to exist, and each holder of a certificate
representing any such shares shall cease to have any rights with respect
thereto, except the right to receive certificates representing the shares of
Common Stock issued in consideration therefor upon the surrender of such
certificate in accordance with Section 3.2, without interest.
(f) CLASS D COMMON STOCK. Subject to the provisions of
Section 3.2(e) hereof, each share of Class D Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares to be canceled in
accordance with Section 3.1(b)) shall be converted into the right to receive a
number of shares of Common Stock equal to the Class D Conversion Number. All
such shares of Class D Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive
certificates representing the shares of Common Stock issued in consideration
therefor upon the surrender of such certificate in accordance with Section 3.2,
without interest.
(g) CLASS E COMMON STOCK. Subject to the provisions of
Section 3.2(e) hereof, each share of Class E Common Stock issued and outstanding
immediately prior to the Effective Time (other than shares to be canceled in
accordance with Section 3.1(b)) shall be converted into the right to receive a
number of shares of Common Stock equal to the Class E Conversion Number. All
such shares of Class E Common Stock, when so converted, shall no longer be
outstanding and shall automatically be canceled and retired and shall cease to
exist, and each holder of a certificate representing any such shares shall cease
to have any rights with respect thereto, except the right to receive
certificates representing the shares of Common Stock issued in consideration
therefor upon the surrender of such certificate in accordance with Section 3.2,
without interest.
(h) STOCK OPTIONS. At the Effective Time, each outstanding option
(each, an "Option") to purchase Class E Common Stock that has been granted
pursuant to Texas TCC's 1997 Stock Option Plan (the "Assumed Option Plan") shall
be assumed by Delaware TCC. Each such Option shall be deemed to constitute an
option to acquire, on the same terms and conditions as were applicable under
such Option, a number of shares of Common Stock equal to the number of shares of
Class E Common Stock purchasable pursuant to such Option multiplied by the
Class E Conversion Number, at a price per share equal to the per-share exercise
price for the shares of Common Stock purchasable pursuant to such Option divided
by the Class E Conversion Number; PROVIDED, HOWEVER, that, unless otherwise
provided in the applicable Option, the number of shares of Common Stock that may
be purchased upon exercise of such Option shall not include any fractional
share. Delaware TCC shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Common Stock for delivery upon
exercise of the Options assumed in accordance with this Section 3.1(h).
(i) NO ADDITIONAL RIGHTS. Except as set forth in Sections 3.1(h) and
4.6 or as otherwise agreed to by the parties,(i) the provisions of any Texas TCC
Capital Stock Equivalent shall become null and void, and (ii) Texas TCC, Merger
Sub, Delaware TCC and, from and after the Effective Time, the Surviving
Corporation, shall use their respective best efforts to ensure that, following
the Effective Time, no holder of Texas TCC Capital Stock Equivalents or any
participant
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in any plan, program or arrangement shall have any right thereunder to
acquire any equity securities of Texas TCC, Merger Sub, Delaware TCC or any
direct or indirect Subsidiary thereof.
Section 3.2 EXCHANGE OF CERTIFICATES.
(a) EXCHANGE AGENT. As of the Effective Time, the Surviving
Corporation shall hold, for the benefit of the holders of shares of Texas TCC
Capital Stock, the certificates representing the shares of Common Stock issuable
at the Effective Time pursuant to Section 3.1 in exchange for outstanding shares
of Texas TCC Capital Stock (the shares of Common Stock, together with any
dividends or distributions with respect thereto, being hereinafter referred to
as the "Exchange Fund"). The Surviving Corporation shall deliver the Common
Stock contemplated to be issued pursuant to Section 3.1 out of the Exchange
Fund. The Exchange Fund shall not be used for any other purpose.
(b) EXCHANGE PROCEDURES. Delivery of each certificate which,
immediately prior to the Effective Time, represented outstanding shares of Texas
TCC Capital Stock (each, a "Certificate"), shall be effected, and risk of loss
and title to such Certificate shall pass, only upon surrender of the Certificate
to the Surviving Corporation for cancellation. Upon surrender of a Certificate
for cancellation to the Surviving Corporation, or to such other agent or agents
as may be appointed by the Surviving Corporation, together with any other
documents of transfer reasonably required by the Surviving Corporation,(i) the
holder of the Certificate shall be entitled to receive a certificate
representing that number of whole shares of Common Stock which such holder has
the right to receive pursuant to the provisions of this Article III, and any
unpaid dividends and distributions that such holder has the right to receive
pursuant to Section 3.2(c); and (ii) the Certificate so surrendered shall
forthwith be canceled. In the event of a transfer of ownership of Texas TCC
Capital Stock which is not registered in the transfer records of Texas TCC, a
certificate representing the appropriate number of whole shares of Common Stock
may be issued to a transferee if the Certificate representing such Texas TCC
Capital Stock is presented to the Surviving Corporation accompanied by all
documents required to evidence and effect such transfer and by evidence that any
applicable stock transfer taxes have been paid. If any shares of Texas TCC
Capital Stock have been pledged to Texas TCC by the holder thereof to secure the
repayment by such holder of any obligation owed to Texas TCC, a certificate
representing the appropriate number of whole shares of Common Stock may be
issued if the Certificate representing such pledged shares of Texas TCC Capital
Stock is presented to the Surviving Corporation accompanied by all documents
which the Surviving Corporation requires to evidence the Surviving Corporation's
continued security interest in the shares of Common Stock issued in exchange for
the Certificate representing such Texas TCC Capital Stock, and the certificate
so issued shall be pledged to the Surviving Corporation. Until surrendered as
contemplated by this Section 3.2, each Certificate shall be deemed at any time
after the Effective Time to represent only the right to receive upon such
surrender a certificate representing whole shares of Common Stock, cash in lieu
of fractional shares of Common Stock as contemplated in Section 3.2(e) and any
unpaid dividends and distributions that such holder has the right to receive
pursuant to Section 3.2(c). The Surviving Corporation shall not be entitled to
vote or exercise any rights of ownership with respect to the Common Stock held
by it from time to time hereunder, except that it shall receive and hold all
dividends or other distributions paid or distributed with respect thereto for
the account of persons entitled thereto.
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(c) DISTRIBUTIONS WITH RESPECT TO SHARES HELD FOR EXCHANGE. No
dividends or other distributions with respect to Common Stock declared or made
after the Effective Time with a record date after the Effective Time shall be
paid to the holder of any unsurrendered Certificate with respect to the shares
of Common Stock the right to receive which is represented thereby and no cash
payment in lieu of fractional shares shall be paid to any such holder pursuant
to Section 3.2(e) until the holder of such Certificate surrenders such
Certificate. Subject to the effect of applicable law, following surrender of
any such Certificate, there shall be paid to the holder thereof, without
interest;(i) at the time of such surrender, the amount of any cash payable in
lieu of a fractional share of Common Stock to which such holder is entitled
pursuant to Section 3.2(e) and the amount of dividends or other distributions
with a record date after the Effective Time theretofore paid with respect to
such whole shares of Common Stock; and (ii) at the appropriate payment date, the
amount of dividends or other distributions with a record date after the
Effective Time but prior to such surrender and a payment date subsequent to such
surrender payable with respect to such whole shares of Common Stock.
(d) NO FURTHER OWNERSHIP RIGHTS. All shares of Common Stock issued
in exchange for shares of Texas TCC Capital Stock in accordance with the terms
hereof shall be deemed to have been issued in full satisfaction of all rights
pertaining to such shares of Texas TCC Capital Stock, subject to the Surviving
Corporation's obligation to pay any dividends or make any other distributions
with a record date prior to the Effective Time and which remain unpaid at the
Effective Time. From and after the Effective Time, there shall be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of any shares of Texas TCC Capital Stock that were outstanding
immediately prior to the Effective Time. If, after the Effective Time,
Certificates are presented to the Surviving Corporation for any reason, they
shall be canceled and exchanged as provided in this Article III.
(e) NO FRACTIONAL SHARES. No certificates or scrip representing
fractional shares of Common Stock shall be issued upon the surrender for
exchange of Certificates pursuant to this Article III, and, except as provided
in this Section 3.2(e), no dividend or other distribution, stock split or
interest shall relate to any such fractional security, and no such fractional
share which such holder might otherwise have been entitled to receive shall
entitle the owner thereof to vote or to any rights of a securityholder of
Delaware TCC. In lieu of any fractional security, each holder of shares of
Texas TCC Capital Stock who would otherwise have been entitled to a fraction of
a share of Common Stock, upon the surrender of Certificates for exchange
pursuant this Article III, will be paid an amount in cash (without interest)
equal to the initial price at which shares of Common Stock are sold in the
Initial Public Offering multiplied by a fraction equal to the portion of a whole
share of Common Stock represented by such fractional share of Common Stock.
(f) NO LIABILITY. None of Delaware TCC, Merger Sub, Texas TCC or the
Surviving Corporation shall be liable to any holder of shares of Texas TCC
Capital Stock for such portion of such shares of Common Stock (or dividends or
distributions with respect thereto) delivered to a public official pursuant to
any applicable abandoned property, escheat or similar law. Any amounts
remaining unclaimed by holders of any such shares at such date as is immediately
prior to the time at which such amounts would otherwise escheat to or become
property of any governmental entity shall, to the extent permitted by applicable
law, become the property of the
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Surviving Corporation, free and clear of any claims or interest of any such
holders or their successors, assigns or personal representatives previously
entitled thereto.
(g) LOST, STOLEN OR DESTROYED CERTIFICATES. If any Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming such Certificate to be lost, stolen or destroyed
and, if required by the Surviving Corporation, the posting by such person of a
bond in such reasonable amount as the Surviving Corporation, may direct as
indemnity against any claim that may be made against it with respect to such
Certificate, the Surviving Corporation shall issue in exchange for such lost,
stolen or destroyed Certificate the certificate representing that number of
whole shares of Common Stock which such holder has the right to receive pursuant
to the provisions of this Article III, and any unpaid dividends and
distributions that such holder has the right to receive pursuant to Section
3.2(c).
ARTICLE IV
OTHER ACTIONS
Section 4.1 STOCKHOLDER CONSENT. By its execution and delivery of this
Agreement, Delaware TCC hereby consents (in its capacity as the sole stockholder
of Merger Sub) to the approval of the Merger and to the Merger Agreement, and
agrees that it will not withdraw, revoke, rescind or alter such consent in any
way without the prior written consent of Texas TCC.
Section 4.2 STOCKHOLDERS AGREEMENT. Upon the terms and subject to the
conditions set forth herein, Delaware TCC, Crow Family and ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
hereby covenant and agree with each other that at Closing they shall execute,
deliver and enter into a Stockholders Agreement substantially in the form
attached hereto as EXHIBIT C (the "Stockholders Agreement").
Section 4.3 CROW FAMILY TERMINATION AGREEMENT. Upon the terms and
subject to the conditions set forth herein, Texas TCC and Crow Family hereby
covenant and agree with each other that at the Closing they shall execute,
deliver and enter into a Termination and Release Agreement substantially in the
form attached hereto as EXHIBIT D (the "Crow Family Termination Agreement").
Section 4.4 ▇▇▇▇▇▇▇▇ TERMINATION AGREEMENT. Upon the terms and subject
to the conditions set forth herein, Texas TCC and ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ hereby
covenant and agree with each other that at Closing they shall execute, deliver
and enter into a Termination and Release Agreement substantially in the form
attached hereto as EXHIBIT E (the "▇▇▇▇▇▇▇▇ Termination Agreement").
Section 4.5 MATTERS RELATING TO TRADE NAME LICENSE. Crow Family and
Delaware TCC hereby covenant and agree with each other and with Texas TCC that,
upon the terms and subject to the conditions set forth herein and pursuant to
Section 351 of the Code, at the Closing and immediately prior to the Effective
Time:
(a) ISSUANCE OF TRADE NAME SHARES. Delaware TCC shall issue to Crow
Family or its designee, and Crow Family or its designee shall acquire from
Delaware TCC, the
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Trade Name Shares, free and clear of all liens, security interests, claims,
rights of another and encumbrances of any kind or character. Delaware TCC
shall deliver to Crow Family or its designee at the Closing a share
certificate representing the total number of Trade Name Shares to be
acquired by Crow Family or such designee hereunder, executed by a duly
authorized officer of Delaware TCC.
(b) TRADE NAME LICENSE AGREEMENT. In consideration for the issuance
of the Trade Name Shares at Closing, Crow Family hereby covenants and
agrees with Delaware TCC and Texas TCC that at the Closing Crow Family
shall, or Crow Family shall cause its designee to, transfer certain
intangible property to Delaware TCC by executing, delivering and entering
into a Trade Name License Agreement substantially in the form attached
hereto as EXHIBIT F (the "Trade Name License Agreement").
Section 4.6 DOPPELT SHARES. Upon the terms and subject to the
conditions set forth herein, Delaware TCC hereby covenants and agrees with Texas
TCC that at Closing and immediately following the Effective Time, Delaware TCC
shall issue to Doppelt the Doppelt Shares, free and clear of all liens, security
interests, claims, rights of another and encumbrances of any kind or character.
Upon delivery to Delaware TCC of the Doppelt Note, Delaware TCC shall deliver to
Doppelt a share certificate representing the total number of Doppelt Shares,
executed by a duly authorized officer of Delaware TCC.
Section 4.7 LONG-TERM INCENTIVE PLAN. Attached to this Agreement as
EXHIBIT G is the ▇▇▇▇▇▇▇▇ ▇▇▇▇ Company Long-Term Incentive Plan (the "Long-Term
Incentive Plan"). By its execution and delivery of this Agreement, Crow Family,
in its capacity as the sole stockholder of Delaware TCC, hereby consents to the
adoption of the Long-Term Incentive Plan and agrees that it will not withdraw,
revoke, rescind or alter such consent in any way without the prior written
consent of Texas TCC. Delaware TCC and Crow Family hereby agree that they shall
not amend, modify, supplement or otherwise alter the Long-Term Incentive Plan
without the prior written consent of Texas TCC. Delaware TCC hereby covenants
and agrees with Texas TCC that at or prior to the Closing Delaware TCC will
issue options to purchase a number of shares of Common Stock equal to 7.0% of
the Post-IPO Shares Outstanding, in such incremental amounts and to such
Eligible Individuals (as defined in the Long-Term Incentive Plan) as Texas TCC
shall request in writing to Delaware TCC at or prior to Closing.
Section 4.8 TAX COVENANTS. The parties to this Agreement agree that the
Merger shall constitute a transfer of property by the shareholders of Texas TCC
to Delaware TCC in exchange for shares of capital stock of Delaware TCC that,
when considered together with the transfer by Crow Family or its designee of
certain intangible property to Delaware TCC pursuant to the Trade Name License
Agreement in exchange for shares of capital stock of Delaware TCC, and the
transfer of the proceeds of the Initial Public Offering to Delaware TCC in
exchange for shares of capital stock of Delaware TCC, constitutes a transaction
described in Section 351 of the Code, and the parties to this Agreement agree
and covenant to make all tax filings in a manner consistent with this
Section 4.8. Except as required by applicable law, no party to this Agreement
shall take or cause to be taken any action which would prevent the Merger from
qualifying as a reorganization pursuant to Section 368 of the Code or from
qualifying as part of a series of transfers of property to Delaware
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TCC in exchange for capital stock of Delaware TCC pursuant to Section 351 of
the Code in the manner described in the preceding sentence.
Section 4.9 CONDUCT OF BUSINESS BY DELAWARE TCC AND MERGER SUB PENDING
THE MERGER. Each of Delaware TCC and Merger Sub hereby covenants and agrees
with Texas TCC that, prior to the Effective Time, unless Texas TCC shall
otherwise agree in writing, it shall not conduct any business activities other
than those reasonably necessary to effect the Initial Public Offering, the
Merger and the other transactions contemplated in this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Section 5.1 REPRESENTATIONS AND WARRANTIES OF DELAWARE TCC AND MERGER
SUB. Delaware TCC and Merger Sub hereby jointly and severally represent and
warrant to Texas TCC as follows:
(a) ORGANIZATION, STANDING AND POWER. Each of Delaware TCC and
Merger Sub is a corporation duly incorporated, validly existing and in good
standing under the laws of the state of Delaware and is in good standing as a
foreign corporation in each jurisdiction where the properties owned, leased or
operated, or the business conducted, by it require such qualification and where
failure to so qualify or be in good standing either singly or in the aggregate,
would have a Material Adverse Effect with respect to Delaware TCC. Each of
Delaware TCC and Merger Sub has the corporate power to carry on its business as
it is now being conducted
(b) CAPITALIZATION. At the time of execution of this Agreement, the
authorized capital stock of Delaware TCC consists of 100,000,000 shares of
Common Stock, par value $0.01 per share, and 30,000,000 shares of preferred
stock, par value $0.01 per share. At the Effective Time, the number of issued
and outstanding shares of Common Stock will be as described in the Final
Prospectus, and all such issued and outstanding shares will be duly authorized,
validly issued, fully paid and nonassessable and will not have been issued in
violation of any preemptive or similar rights. All of the issued and
outstanding shares of capital stock of Merger Sub are duly authorized, validly
issued, fully paid and nonassessable and have not been issued in violation of
any preemptive or similar rights.
(c) AUTHORITY. Each of Delaware TCC and Merger Sub has all requisite
corporate power and authority to enter into this Agreement and each other
agreement, document and instrument required to be executed by it in accordance
herewith, including, without limitation, each of the documents the forms of
which are attached as Exhibits hereto (collectively, including this Agreement,
the "Transaction Documents"), and to consummate the transactions contemplated
hereby or thereby. The execution and delivery by Delaware TCC and Merger Sub of
this Agreement and the other Transaction Documents to which they are to be
parties, and the consummation by Delaware TCC and Merger Sub of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of Delaware TCC and Merger Sub. This Agreement has
been, and at Closing each of the other Transaction Documents to which Delaware
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TCC or Merger Sub is to be a party will be, duly executed and delivered by
Delaware TCC and Merger Sub, and this Agreement constitutes, and upon
execution and delivery thereof by Delaware TCC and Merger Sub, the other
Transaction Documents to which Delaware TCC or Merger Sub is to be a party
will constitute, the valid and binding obligations of each of Delaware TCC
and Merger Sub, enforceable against it in accordance with its respective
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditor's rights and
remedies generally and subject, as to enforceability, to general principles
of equity, including principles of commercial reasonableness, good faith and
fair dealing (regardless of whether enforcement is sought in a proceeding at
law or in equity). Without limiting the other representations and warranties
set forth in this Section 5.1(c), the Long-Term Incentive Plan has been
unanimously approved by the members of Delaware TCC's Board of Directors and
by each holder of Delaware TCC's capital stock entitled to vote on the
approval of the Long-Term Incentive Plan.
(d) NO CONFLICT; REQUIRED FILINGS AND CONSENTS. The execution and
delivery by Delaware TCC and Merger Sub of this Agreement and the other
Transaction Documents to which they are parties do not, and the performance by
Delaware TCC and Merger Sub, as applicable, of the transactions contemplated
hereby and thereby will not, subject to making the filings and obtaining the
consents, approvals, authorizations and permits described below,(i) violate,
conflict with, or result in any breach of any provision of the certificates of
incorporation or bylaws of Delaware TCC or Merger Sub,(ii) violate, conflict
with or result in a violation or breach of, or constitute a default (with or
without due notice or lapse of time or both) under, or permit the termination
of, or result in the acceleration of, or entitle any party to accelerate any
obligation, or result in the loss of any benefit, or give any person the right
to require any security to be repurchased, or give rise to the creation of any
lien, charge, security interest or encumbrance upon any of the properties or
assets of Delaware TCC or Merger Sub under, any of the terms, conditions or
provisions of, any loan or credit agreement, note, bond, mortgage, indenture or
deed of trust, or any license, lease, agreement or other instrument or
obligation to which any of them is a party or by which any of them or any of
their properties or assets may be bound or subject, except for such violations,
conflicts, breaches, defaults, terminations, accelerations, losses or other such
events as have not had, or could not reasonably be expected to have,
individually or in the aggregate, a Material Adverse Effect with respect to
Delaware TCC, or (iii) violate any order, writ, judgment, injunction, decree,
statute, rule or regulation of any court or any federal, state or local
administrative agency or commission or other governmental authority or
instrumentality (a "Governmental Entity") applicable to Delaware TCC or any of
its Subsidiaries or by which or to which any of their respective properties or
assets is bound or subject ("Applicable Laws"), except for such violations as
have not had, or could not reasonably be expected to have, individually or in
the aggregate, a Material Adverse Effect with respect to Delaware TCC. No
consent, approval, order, or authorization of, or registration, declaration, or
filing with, any Governmental Entity is required by or with respect to Delaware
TCC or Merger Sub in connection with the execution and delivery of this
Agreement or any of the other Transaction Documents by Delaware TCC or Merger
Sub or the consummation of the transactions contemplated hereby or thereby,
except for applicable requirements, if any, of the HSR Act, the Securities Act,
the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and state
securities or blue sky laws.
Section 5.2 REPRESENTATIONS AND WARRANTIES OF TEXAS TCC. Texas TCC
hereby represents and warrants to Delaware TCC that:
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(a) ORGANIZATION, STANDING AND POWER. Texas TCC is a close
corporation duly incorporated, validly existing and in good standing under the
laws of the state of Texas and is in good standing as a foreign corporation in
each jurisdiction where the properties owned, leased or operated, or the
business conducted, by it require such qualification and where failure to so
qualify or be in good standing, either singly or in the aggregate, would have a
Material Adverse Effect with respect to Texas TCC. Texas TCC has the corporate
power to carry on its business as it is now being conducted.
(b) CAPITALIZATION. The authorized capital stock of Texas TCC
consists of (i) 3,366 shares of Class A Common Stock, par value $0.01 per share,
(ii) 2,244 shares of Class B Common Stock, par value $0.01 per share,
(iii) 4,197 shares of Class C Common Stock, par $0.01 value per share, (iv) 390
shares of Class D Common Stock, par value $0.01 per share and (v) 100,000 shares
of Texas TCC Class E Common Stock, par value $0.01 per share. All of the
outstanding shares of Texas TCC Capital Stock have been validly issued and are
fully paid and nonassessable. Except for Texas TCC's obligations under the
Assumed Option Plan and in connection with the Doppelt Acquisition, there are no
options, warrants, calls, rights, commitments or agreements of any character to
which Texas TCC or any of its Subsidiaries is a party or by which any of them is
bound obligating Texas TCC or any of its Subsidiaries to issue, deliver or sell,
or cause to be issued, delivered or sold, additional shares of capital stock of
Texas TCC or any of its Subsidiaries, or obligating Texas TCC or any of its
Subsidiaries to grant, extend or enter into any such option, warrant, call,
right, commitment or agreement. Except as set forth in the Texas TCC
Shareholders Agreement, there are no outstanding contractual rights or
obligations of Texas TCC or any Subsidiary to repurchase, redeem or otherwise
acquire capital stock of, or any equity interest in, Texas TCC or any of its
Subsidiaries. All of the issued and outstanding shares of capital stock of each
Subsidiary of Texas TCC are duly authorized, validly issued, fully paid and
nonassessable and have not been issued in violation of any preemptive or similar
rights.
(c) AUTHORITY. Texas TCC has all requisite corporate power and
authority to enter into this Agreement and each of the other Transaction
Documents to be executed by it in accordance herewith, and to consummate the
transactions contemplated hereby or thereby. The execution and delivery by
Texas TCC of this Agreement and the other Transaction Documents to which Texas
TCC is to be a party, and the consummation by Texas TCC of the transactions
contemplated hereby and thereby, have been duly authorized by all necessary
corporate action on the part of Texas TCC, except for the Shareholder Approval.
This Agreement has been, and at Closing each of the other Transaction Documents
to which Texas TCC is to be a party will be, duly executed and delivered by
Texas TCC, and this Agreement constitutes, and upon execution and delivery
thereof by Texas TCC, the other Transaction Documents to which Texas TCC is to
be a party will constitute, the valid and binding obligation of Texas TCC,
enforceable against it in accordance with its respective terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors' rights and remedies generally
and subject, as to enforceability, to general principles of equity, including
principles of commercial reasonableness, good faith and fair dealing (regardless
of whether enforcement is sought in a proceeding at law or in equity).
(d) NO CONFLICT; REQUIRED FILINGS AND CONSENTS. Except as disclosed
on SCHEDULE 5.2(D), the execution and delivery by Texas TCC of this Agreement
and the other Transaction Documents do not, and the performance by Texas TCC of
the transactions contemplated
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hereby or thereby will not, subject to making the filings and obtaining the
consents, approvals, authorizations and permits described below, (i) violate,
conflict with, or result in any breach of any provision of the articles of
incorporation or bylaws of Texas TCC, (ii) violate, conflict with, or result
in a violation or breach of, or constitute a default (with or without due
notice or lapse of time or both) under, or permit the termination of, or
result in the acceleration of, or entitle any party to accelerate any
obligation, or result in the loss of any benefit, or give any person the
right to require any security to be repurchased, or give rise to the creation
of any lien, charge, security interest or encumbrance upon any of the
properties or assets of Texas TCC or any of its Subsidiaries under, any of
the terms, conditions, or provisions of, any loan or credit agreement, note,
bond, mortgage, indenture or deed of trust, or any license, lease, agreement
or other instrument or obligation to which any of them is a party or by which
any of them or any of their properties or assets may be bound or subject,
except for such violations, conflicts, breaches, defaults, terminations,
accelerations, losses or other such events as have not had, or could not
reasonably be expected to have, individually or in the aggregate, a Material
Adverse Effect with respect to Texas TCC, or (iii) violate any Applicable
Laws, except for such violations as have not had, or could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect
with respect to Texas TCC. No consent, approval, order, or authorization of,
or registration, declaration, or filing with, any Governmental Entity is
required by or with respect to Texas TCC in connection with the execution and
delivery of this Agreement or any of the other Transaction Documents by Texas
TCC or the consummation of the transactions contemplated hereby or thereby,
except for applicable requirements, if any, of the HSR Act, the Securities
Act, the Exchange Act, and state securities or blue sky laws.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.1 CONDITIONS TO EACH PARTY'S OBLIGATION. The respective
obligations of each party to effect the transactions contemplated hereby are
subject to the satisfaction on or prior to the Effective Time of the following
conditions:
(a) CONSENTS AND APPROVALS. All authorizations, consents, orders or
approvals of, or declarations or filings with, or expirations of waiting periods
imposed by, any Governmental Entity necessary for the consummation of the
transactions contemplated by this Agreement shall have been filed, occurred or
been obtained.
(b) NO INJUNCTIONS OR RESTRAINTS. No temporary restraining order,
preliminary or permanent injunction, or other order issued by any court of
competent jurisdiction or other legal restraint or prohibition preventing the
consummation of the transactions contemplated by this Agreement shall be in
effect.
(c) NO ACTION. No action shall have been taken nor any statute, rule
or regulation shall have been enacted by any Governmental Entity that makes the
consummation of the transactions contemplated by this Agreement illegal.
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(d) INITIAL PUBLIC OFFERING. The Registration Statement shall have
been declared effective by the Securities and Exchange Commission, the
Underwriting Agreement shall have been entered into and all of the conditions
required pursuant to the Underwriting Agreement for the consummation of the
Initial Public Offering shall have been satisfied or waived simultaneously with
or prior to the Merger.
(e) SHAREHOLDER APPROVAL. The Shareholder Approval shall have been
obtained.
(f) STOCKHOLDERS AGREEMENT. A fully executed copy of the
Stockholders Agreement shall have been delivered to each of the parties hereto.
(g) CONSENT. ▇▇▇▇▇▇▇▇ ▇▇▇▇ Residential Company shall have consented
to the execution of the License Agreement by Crow Family and Delaware TCC prior
to the time that the Registration Statement is filed with the Securities and
Exchange Commission.
Section 6.2 CONDITIONS TO OBLIGATION OF TEXAS TCC. The obligation of
Texas TCC to effect the Merger and the other transactions contemplated by this
Agreement is subject to the satisfaction of the following conditions unless
waived, in whole or in part, by Texas TCC:
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Delaware TCC and Merger Sub set forth in this Agreement shall be
true and correct in all material respects as of the date of this Agreement and
as of the Closing Date as though made on and as of the Closing Date, except as
contemplated or permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS. Each of Delaware TCC and Merger Sub
shall have performed in all material respects all obligations required to be
performed by them under this Agreement prior to the Closing Date.
(c) CLOSING DELIVERIES. All documents and instruments required to be
delivered, and all actions required to be taken, by the parties hereto other
than Texas TCC pursuant to Article IV shall have been delivered or taken.
Section 6.3 CONDITIONS TO OBLIGATIONS OF DELAWARE TCC AND MERGER SUB.
The obligation of Delaware TCC and Merger Sub to effect the Merger and the other
transactions contemplated by this Agreement is subject to the satisfaction of
the following conditions unless waived, in whole or in part, by Delaware TCC and
Merger Sub.
(a) REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Texas TCC set forth in this Agreement shall be true and correct in
all material respects as of the date of this Agreement and as of the Closing
Date as though made on and as of the Closing Date, except as contemplated or
permitted by this Agreement.
(b) PERFORMANCE OF OBLIGATIONS. Texas TCC shall have performed in
all material respects all obligations required to be performed by it under this
Agreement prior to the Closing Date.
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(c) CLOSING DELIVERIES. All documents and instruments required to be
delivered, and all actions required to be taken, by the parties hereto other
than Delaware TCC or Merger Sub pursuant to Article IV shall have been delivered
or taken.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.1 TERMINATION. This Agreement may be terminated prior to the
Closing:
(a) by mutual consent of Delaware TCC and Texas TCC;
(b) by either of Delaware TCC or Texas TCC;
(i) if a court of competent jurisdiction or other Governmental
Entity shall have issued an order, decree or ruling or taken any other action
(which order, decree or ruling the parties hereto shall use their best efforts
to lift), in each case permanently restraining, enjoining or otherwise
prohibiting the Merger or any of the other transactions contemplated by this
Agreement, and such order, decree, ruling or other action shall have become
final and nonappealable;
(ii) if the Closing shall not have occurred by 5:00 p.m., Dallas,
Texas time on March 31, 1998; provided, however, that the right to terminate
this Agreement under this clause (ii) shall not be available to any party whose
breach of this Agreement has been the cause of, or resulted in, the failure of
the Closing to occur on or before such date; or
(c) by Delaware TCC:
(i) if there shall have been any material breach of any
representation or warranty or any material breach of any covenant or agreement
set forth in this Agreement on the part of any other party to this Agreement,
which breach shall not have been cured within 20 days following receipt by the
breaching party of written notice of such breach; or
(ii) if any other party to this Agreement other than Merger Sub
shall fail to perform any of their respective obligations set forth in Article
IV; or
(d) by Texas TCC:
(i) if there shall have been any material breach of any
representation or warranty or any material breach of any covenant or agreement
set forth in this Agreement on the part of any other party to this Agreement,
which breach shall not have been cured within 20 days following receipt by the
breaching party of written notice of such breach; or
(ii) if any other party to this Agreement shall fail to perform
any of their respective obligations set forth in Article IV.
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The right of any party hereto to terminate this Agreement pursuant to this
Section 7.1 shall remain operative and in full force and effect regardless of
any investigation made by or on behalf of any party hereto, any person
controlling any such party, or any of their respective officers, directors,
employees, accountants, consultants, legal counsel, agents or other
representatives, whether prior to or after the execution of this Agreement.
Notwithstanding anything in the foregoing to the contrary, no party that is
in material breach of this Agreement shall be entitled to terminate this
Agreement except with the consent of the other parties hereto who have the
right to terminate this Agreement.
Section 7.2 EFFECT OF TERMINATION. In the event of a termination of
this Agreement as provided above, there shall be no liability on the part of any
of the parties hereto (or any of their respective directors or officers), except
for liability arising out of a breach of this Agreement.
ARTICLE VIII
MISCELLANEOUS AND GENERAL
Section 8.1 PAYMENT OF EXPENSES. Whether or not the Merger shall be
consummated, each party hereto shall pay its own expenses incident to preparing
for, entering into and carrying out this Agreement and the consummation of the
Merger.
Section 8.2 AMENDMENT AND MODIFICATION. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto;
provided, however, that any of the provisions of this Agreement other than those
contained in Articles III or IV may be amended by an instrument in writing
signed by both Delaware TCC and Texas TCC, and such amendment shall be binding
on the other parties hereto.
Section 8.3 WAIVER OF COMPLIANCE. Any failure by any party to this
Agreement to comply with any obligation, covenant, agreement, or condition
contained herein may be waived only if set forth in an instrument in writing
signed by the party or parties to be bound thereby, but such waiver or failure
to insist upon strict compliance with such obligation, covenant, agreement or
condition shall not operate as a waiver of, or estoppel with respect to, any
other failure.
Section 8.4 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of
applicable 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. Upon such determination
that any term or other provision is invalid, illegal or incapable of being
enforced, the parties hereto shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in a mutually acceptable manner in order that the transactions
contemplated hereby be consummated as originally contemplated to the fullest
extent possible.
Section 8.5 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally or mailed
by registered or certified mail (return
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receipt requested) to the parties at the following addresses (or at such
other address for a party as shall be specified by like notice):
(a) If to Delaware TCC, to
c/o Crow Family Partnership, L.P.
3200 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
with a copy to:
▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(b) If to the Texas TCC, to
▇▇▇▇▇▇▇▇ ▇▇▇▇ Company
3400 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Executive Officer
with a copy to:
▇▇. ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P.
3700 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Section 8.6 INTERPRETATION. All references in this Agreement to
Exhibits, Schedules, Articles, Sections, subsections and other subdivisions
refer to the corresponding Exhibits, Schedules, Articles, Sections, subsections
and other subdivisions of this Agreement unless expressly provided otherwise.
Titles appearing at the beginning of any Articles, Sections, subsections or
other subdivisions of this Agreement are for convenience only, do not constitute
any part of such Articles, Sections, subsections or other subdivisions, and
shall be disregarded in construing the language contained therein. The words
"THIS AGREEMENT," "HEREIN," "HEREBY," "HEREUNDER," and "HEREOF," and words of
similar import, refer to this Agreement as a whole and not to any particular
subdivision unless expressly so limited. The words "THIS SECTION" and "THIS
SUBSECTION" and words of similar import, refer only to the Sections or
subsections hereof in which such words occur. The word "OR" is not exclusive,
and the word "INCLUDING" (in its various forms) means "INCLUDING WITHOUT
LIMITATION." Pronouns in masculine, feminine, or neuter genders shall be
construed to state and
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include any other gender and words, terms and titles (including terms defined
herein) in the singular form shall be construed to include the plural and
vice versa, unless the context otherwise expressly requires. Unless the
context otherwise requires, all defined terms contained herein shall include
the singular and plural and the conjunctive and disjunctive forms of such
defined terms. The table of contents and 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 8.7 ENTIRE AGREEMENT. This Agreement (which term shall be
deemed to include the exhibits and schedules hereto and the other certificates,
documents and instruments delivered hereunder) constitutes the entire agreement
of the parties hereto and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof. There are no representations or warranties, agreements or covenants
other than those expressly set forth in this Agreement.
Section 8.8 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, EXCEPT TO THE
EXTENT THE DGCL IS REQUIRED TO GOVERN THE MERGER, IN WHICH CASE THE DGCL SHALL
GOVERN.
Section 8.9 FURTHER ACTIONS. Subject to the terms and conditions of
this Agreement, each of the parties hereto will use its commercially reasonable
efforts to take, or cause to be taken all action and to do, or cause to be done,
all things necessary, proper or advisable under Applicable Laws to consummate
and make effective the transactions contemplated by this Agreement. If at any
time after the Closing Date any further action is necessary to carry out the
purposes of this Agreement, the parties to this Agreement and their duly
authorized representatives shall take all such actions.
Section 8.10 SPECIFIC PERFORMANCE. The parties acknowledge and agree
that the breach of the provisions of this Agreement by Delaware TCC or Merger
Sub on the one hand, or Texas TCC or any of the Shareholders on the other hand,
could not be adequately compensated with monetary damages and would irreparably
damage the other party or parties hereto, and, accordingly, that injunctive
relief and specific performance shall be appropriate remedies to enforce the
provisions of this Agreement and each of the parties hereto hereby waive any
claim or defense that there is an adequate remedy at law for such breach;
provided, however, that nothing herein shall limit the remedies, legal or
equitable, otherwise available and all remedies herein are in addition to any
remedies available at law or otherwise.
Section 8.11 SURVIVAL OF REPRESENTATIONS, WARRANTIES, AND COVENANTS.
Regardless of any investigation at any time made by or on behalf of any party in
respect thereof, each of the representations and warranties made hereunder or
pursuant hereto or in connection with the transactions contemplated hereby shall
terminate on the Closing Date. Following the date of termination of a
representation or warranty, no claim can be brought with respect to a breach of
such representation or warranty, but no such termination shall affect any claim
for a breach of a representation or warranty that was asserted before the date
of termination. To the extent that such are performable after the Closing, each
of the covenants and agreements contained in this Agreement shall surviving the
Closing indefinitely.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by
the parties hereto or by their duly authorized officers on the date first
hereinabove written.
▇▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY,
a Texas close corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇
-----------------------------------
Title: Executive Vice President
----------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇ COMPANY,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
TCC MERGER SUB, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------------
Title: Vice President
----------------------------------
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CROW FAMILY PARTNERSHIP, L.P.,
By: Crow Family, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------------
Title: Executive Vice President
----------------------------------
/s/ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-----------------------------------------
▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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