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EXHIBIT 2.2
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
THIS AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER (this
"Agreement") is made and entered into as of the 13th day of November, 1997 by
and among Xxxxx Companies, Inc., a Utah corporation (the "Parent"), X.X. Xxxxx
Reorganization Corporation, a Utah corporation ("CRC"), X.X. Xxxxx & Co., a Utah
corporation ("Xxxxx"), Geneva Rock Reorganization Corporation, a Utah
corporation ("GRRC"), Geneva Rock Products, Inc., a Utah corporation ("Geneva
Rock"), Utah Service Reorganization Corporation, a Utah corporation ("USRC"),
Utah Service Inc., a Utah corporation ("Utah Service"), Beehive Insurance
Reorganization Corporation, a Utah corporation ("BIRC"), and Beehive Insurance
Agency, Inc., a Utah corporation ("Beehive Insurance").
Recitals
WHEREAS, the parties hereto entered into an Agreement and Plan of Merger
dated as of November 13, 1997 (the "Original Xxxxx Agreement");
WHEREAS, the parties hereto desire to amend and restate the Original
Merger Agreement in its entirety as set forth in this Agreement;
WHEREAS, the Board of Directors of each of the Parent, and CRC, GRRC,
USRC and BIRC (collectively, the "Reorganization Corporations") and Clyde,
Geneva Rock, Utah Service and Beehive Insurance (collectively, the "Acquired
Corporations" and, together with the Parent and the Reorganization Corporations,
the "Corporations") have approved, and have determined that it is advisable and
in the best interests of each of their respective shareholders for the Parent to
acquire the Acquired Corporations on the terms and conditions set forth in this
Agreement; and
WHEREAS, to accomplish such acquisitions, (i) the Board of Directors of
each of the Parent, CRC and Xxxxx has determined that CRC should be merged with
and into Xxxxx (the "Xxxxx Merger"), (ii) the Board of Directors of each of the
Parent, GRRC and Geneva Rock has determined that GRRC should be merged with and
into Geneva Rock (the "Geneva Rock Merger"), (iii) the Board of Directors of
each of the Parent, USRC and Utah Service has determined that USRC should be
merged with and into Utah Service (the "Utah Service Merger"), and (iv) the
Board of Directors of each of the Parent, BIRC and Beehive Insurance has
determined that BIRC should be merged with and into Beehive Insurance (the
"Beehive Insurance Merger" and, collectively with the Xxxxx Merger, the Geneva
Rock Merger and the Utah Service Merger, the "Mergers") in accordance with this
Agreement and the applicable provisions of the Utah Revised Business Corporation
Act (the
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"URBCA") and the Internal Revenue Code of 1986, as amended (the "Code").
Agreement
NOW, THEREFORE, pursuant to and in accordance with the URBCA and the
Code, the Corporations agree upon and prescribe the terms and conditions of the
Mergers as follows:
I. Merger
1.1 Names and States of Incorporation. The name and state of
incorporation of each of the constituent corporations in the Mergers is as
follows:
(a) for the Xxxxx Merger, X.X. Xxxxx Reorganization Corporation, a
Utah corporation, and X.X. Xxxxx & Co., a Utah corporation;
(b) for the Geneva Rock Merger, Geneva Rock Reorganization
Corporation, a Utah corporation, and Geneva Rock Products, Inc., a Utah
corporation;
(c) for the Utah Service Merger, Utah Service Reorganization
Corporation, a Utah corporation, and Utah Service Inc., a Utah
corporation; and
(d) for the Beehive Insurance Merger, Beehive Insurance
Reorganization Corporation, a Utah corporation, and Beehive Insurance
Agency, Inc., a Utah corporation.
1.2 Closing and Effective Time. The closing of each of the
Mergers (the "Closing") shall take place concurrently at the offices of Van
Cott, Xxxxxx, Cornwall & XxXxxxxx at 8:30 a.m. (local time) on a date (the
"Closing Date") to be specified by the Corporations, which shall be no sooner
than the date upon which all of the conditions specified in Article V of this
Agreement have been satisfied or waived by the applicable Corporations (other
than those conditions that, by their nature, are to be satisfied at the
Closing). In accordance with the URBCA and Articles of Mergers to be filed by
each of the respective Acquired Corporations with the Utah Department of
Commerce, Division of Corporations and Commercial Code (the "Utah Division of
Corporations"), the Mergers shall become effective sequentially, with the Xxxxx
Merger becoming effective first, followed one hour later by the Utah Service
Merger, followed one hour later by the Beehive Insurance Merger and followed one
hour later by the Geneva Rock Merger. Each of the respective Mergers shall be
effective at the date and time specified in the
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applicable Articles of Merger (for each Merger, the "Effective Time"). The
Closing Date shall be prior to the Effective Time.
1.3 Mergers. At the Effective Time, the following shall occur:
(a) The respective Reorganization Corporation shall be merged with
and into the corresponding Acquired Corporation, and the separate
existence of the Reorganization Corporation shall cease.
(b) The respective Acquired Corporation shall be the surviving
corporation and shall continue its corporate existence in accordance
with the laws of the State of Utah and under its current name.
(c) The respective Merger shall have the effects set forth in
Section 16-10a-1106 of the URBCA.
1.4 Articles of Incorporation. The Articles of Incorporation of each of
the Acquired Corporations shall continue to be the Articles of Incorporation of
such Acquired Corporation after the Effective Time, until amended or repealed in
accordance with the URBCA.
1.5 Bylaws. The Bylaws of each of the Acquired Corporations shall
continue to be the Bylaws of such Acquired Corporation after the Effective Time,
until amended or repealed in the manner provided by such Bylaws and the URBCA.
1.6 Directors. The directors of each of the Acquired Corporations
immediately prior to the Effective Time shall continue to serve as the directors
of such Acquired Corporation for the term specified in the Bylaws of such
Acquired Corporation.
1.7 Officers. The officers of each of the Acquired Corporations
immediately prior to the Effective Time shall continue to be officers of such
Acquired Corporation until otherwise provided in accordance with the Bylaws of
such Acquired Corporation.
1.8 Securities Filings. If required by applicable law, the Corporations
shall promptly prepare and file with the Securities and Exchange Commission (the
"SEC") a Registration Statement on Form S-4 (including any amendments or
supplements thereto, the "Registration Statement") and, as part of the
Registration Statement, a letter, notice of meeting, proxy statement and form of
proxy to the shareholders of each of the Acquired Companies in connection with
the Mergers (collectively, including any amendments or supplements thereto, the
"Proxy
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Statement"). Each of the Corporations shall provide reasonable opportunities for
the other Corporations to review and comment on the contents of the Registration
Statement. At any time after the preparation of the Registration Statement, each
of the Corporations agrees promptly to notify the others of and to correct any
information which any of them shall have furnished for inclusion in the
Registration Statement that shall have become false or misleading in any
material respect. Each of the Corporations shall use its reasonable best efforts
to have the Registration Statement declared effective under the Securities Act
of 1933, as amended (the "Securities Act"), as promptly as practicable after
such filing. The Parent shall also take any action required to be taken under
any applicable state securities laws in connection with the issuance of Parent
Common Stock (as defined below) in the Merger, and each of the Corporations
shall furnish all information concerning its business, affairs and/or
shareholders as may be reasonably requested in connection with any such action.
1.9 Special Meeting. As promptly as practicable following the execution
and delivery of this Agreement, in accordance with the URBCA and other
applicable law, each of the Acquired Corporations (a) shall duly call, give
notice of, convene and hold a special meeting of its shareholders (each a
"Special Meeting") and shall submit this Agreement to a vote of such
shareholders at the Special Meeting, (b) subject to any review by the SEC, shall
include in the Proxy Statement, the recommendation of the Board of Directors
that the shareholders should vote in favor of the approval of this Agreement and
(c) shall take all such other action reasonably necessary or appropriate to
obtain the lawful approval of this Agreement by the shareholders.
1.10 Geneva Rock Common Stock Owned by Xxxxx. As of the date of this
Agreement, Xxxxx owns (and as of the Effective Time, Xxxxx will own) 7,518
shares (the "Distribution Shares") of Geneva Rock Common Stock (as defined
below). Immediately after the Effective Time of the Xxxxx Merger, Xxxxx, acting
in accordance with resolutions duly adopted by its Board of Directors, shall
distribute (in a dividend distribution) the Distribution Shares to the Parent.
Immediately upon such distribution, the Parent shall own the Distribution
Shares, and, at the Effective Time of the Geneva Rock Merger, the Distribution
Shares shall be treated in the same manner as all of the other shares of Geneva
Rock Common Stock owned by the Parent in accordance with Section 2.1(c) below.
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II. Conversion of Shares
2.1 Conversion. As of the Effective Time, by virtue of each of the
Mergers and without any further action, the following shall occur:
(a) Each issued and outstanding share of Xxxxx Common Stock (as
defined below) (other than (i) shares of Xxxxx Common Stock owned by the
Parent, which shall not be converted and shall each remain one (1)
issued and outstanding share of Xxxxx Common Stock, and (ii) Dissenting
Shares (as defined below), if any) shall be converted into 33.93 shares
of Parent Common Stock.
(b) Each issued and outstanding share of CRC Common Stock (as
defined below) shall be converted into one (1) share of Xxxxx Common
Stock.
(c) Each issued and outstanding share of Geneva Rock Common Stock
(other than (i) shares of Geneva Rock Common Stock owned by the Parent,
which shall not be converted and shall each remain one (1) issued and
outstanding share of Geneva Rock Common Stock, and (ii) Dissenting
Shares, if any) shall be converted into 239.27 shares of Parent Common
Stock.
(d) Each issued and outstanding share of GRRC Common Stock (as
defined below) shall be converted into one (1) share of Geneva Rock
Common Stock.
(e) Each issued and outstanding share of Utah Service Common Stock
(as defined below) (other than (i) shares of Utah Service Common Stock
owned by the Parent, which shall not be converted and shall each remain
one (1) issued and outstanding share of Utah Service Common Stock, and
(ii) Dissenting Shares, if any) shall be converted into 43.43 shares of
Parent Common Stock.
(f) Each issued and outstanding share of USRC Common Stock (as
defined below) shall be converted into one (1) share of Utah Service
Common Stock.
(g) Each issued and outstanding share of Beehive Insurance Common
Stock (as defined below) (other than (i) shares of Beehive Insurance
Common Stock owned by the Parent, which shall not be converted and shall
each remain one (1) issued and outstanding share of Beehive Insurance
Common Stock, and (ii) Dissenting Shares, if any) shall be converted
into 4.33 shares of Parent Common Stock.
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(h) Each issued and outstanding share of BIRC Common Stock (as
defined below) shall be converted into one (1) share of Beehive
Insurance Common Stock.
2.2 Fractional Shares. Notwithstanding any other provision of this
Agreement to the contrary, each holder of shares of common stock of the Acquired
Corporations exchanged pursuant to the Mergers who would otherwise have been
entitled to receive a fraction of a share of Parent Common Stock (after taking
into account all Acquired Corporation Certificates delivered by such holder)
shall receive, in lieu thereof, cash (without interest) in an amount equal to
such fraction multiplied by $14.52 (the projected value, determined as of the
date of this Agreement, of one share of Parent Common Stock as of the Effective
Time). No such holder shall be entitled to any fractional share of Parent Common
Stock (or to any dividends, voting rights or any other rights as a shareholder
in respect of such fractional share of Parent Common Stock).
2.3 Acquired Corporation Certificates. Certificates nominally
representing shares of the common stock of the Acquired Corporations ("Acquired
Corporation Certificates") shall be treated as follows:
(a) As of the Effective Time, each Acquired Corporation Certificate,
other than any certificate representing Dissenting Shares, if any, for
all purposes, shall be deemed to evidence the number of shares of Parent
Common Stock determined in accordance with Section 2.1 above.
(b) As soon as practicable after the Effective Time, the Parent
shall mail to each record holder of an outstanding Acquired Corporation
Certificate, as of the Effective Time, a form of letter of transmittal
(the "Transmittal Letter") that is reasonably acceptable to the Acquired
Corporations (which shall specify that delivery of an Acquired
Corporation Certificate shall be effected, and risk of loss and title to
the Acquired Corporation Certificate shall pass, only upon proper
delivery of the Acquired Corporation Certificate to the Parent) and
instructions for use in effecting the surrender of each Acquired
Corporation Certificate in exchange for a Parent Common Stock
certificate ("Parent Certificate"). Upon surrender to the Parent of an
Acquired Corporation Certificate, together with a duly executed
Transmittal Letter (and any other documents which may be reasonably
required by the Parent, if any), the holder of such Acquired Corporation
Certificate shall receive promptly in exchange therefor a Parent
Certificate for the number of shares of Parent
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Common Stock evidenced thereby in accordance with Section 2.1 above.
Thereafter, the applicable Acquired Corporation Certificate shall be
canceled. If a Parent Certificate is to be issued to a person other than
the person in whose name the surrendered Acquired Corporation
Certificate is registered, it shall be a condition of issuance of the
Parent Certificate (x) that the Acquired Corporation Certificate so
surrendered shall be properly endorsed or otherwise be in proper form
for transfer and (y) that the person requesting such issuance shall pay
any transfer or other taxes required by reason of the issuance to a
person other than the registered holder of the Acquired Corporation
Certificate surrendered or establish to the satisfaction of the Parent
that such tax has been paid or is not applicable. The Parent shall pay
all charges and expenses, including those of the Acquired Corporations,
in connection with the distribution of the Parent Certificates.
(c) If any Acquired Corporation Certificate shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
person claiming such Acquired Corporation Certificate to be lost, stolen
or destroyed, the Parent will issue in exchange for such lost, stolen or
destroyed Acquired Corporation Certificate the shares of Parent Common
Stock deliverable in respect thereof as determined in accordance with
Section 2.1 above; provided that, at the option of the Parent, the
person to whom such shares are issued, as a condition precedent to the
issuance of such shares, shall give to the Parent a bond in such sum as
the Parent may direct or otherwise indemnify the Parent in a manner
satisfactory to the Parent against any claim that may be made against
the Parent with respect to the Acquired Corporation Certificate claimed
to have been lost, stolen or destroyed.
2.4 Dissenters' Rights. Notwithstanding any other provision of this
Agreement, each share of the common stock of any of the Acquired Corporations
(a) as to which a written notice of intent to demand payment was submitted to
the applicable Acquired Corporation in accordance with Section 16-10a-1321(1)(a)
of the URBCA, (b) which is not voted in favor of approval of this Agreement at a
Special Meeting, and (c) as to which a written demand for payment of fair value
shall have been or may still be timely filed, and the Acquired Corporation
Certificate(s) for such shares shall have been or may still be deposited with
the applicable Acquired Corporation in accordance with the requirements of Part
13 of the URBCA (collectively, "Dissenting
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Shares"), shall not be converted into shares of Parent Common Stock. Each holder
of Dissenting Shares who becomes entitled under the URBCA to receive payment of
the fair value of such holder's Dissenting Shares shall receive such payment
from the Parent (but only after such fair value shall have been agreed upon or
finally determined) and such Dissenting Shares shall thereupon be canceled. Each
Dissenting Share as to which dissenters' rights pursuant to the URBCA shall be
effectively withdrawn or lost shall thereupon be deemed to have been converted,
at the Effective Time, into shares of Parent Common Stock in accordance with
Section 2.1 above.
2.5 Options, Warrants or Other Rights. At the Effective Time, any
options, warrants or other rights to purchase shares of any of the Acquired
Corporations, without any further action, shall be terminated.
III. Representations and Warranties of the Acquired Corporations
Each of the Acquired Corporations, solely as to itself and not as to any
other Acquired Corporation, represents and warrants to the Parent as follows,
subject only to such limitations and exceptions as are set forth below:
3.1 Organization and Good Standing. The Acquired Corporation is a
corporation duly organized, validly existing and in good standing under the laws
of the State of Utah, and has all requisite corporate power and corporate
authority to own, lease and operate its properties to carry on its business as
now being conducted. The Acquired Corporation is duly qualified and in good
standing to do business in each jurisdiction in which the nature of its business
or the ownership or leasing of its properties makes such qualification
necessary, except where the failure to be so qualified would not have a material
adverse effect on the Acquired Corporation.
3.2 Capital Structure of the Acquired Corporations.
(a) Xxxxx has an authorized capital structure consisting of Two
Hundred Thousand (200,000) shares of Ten Dollar ($10.00) par value
common stock ("Xxxxx Common Stock"), and Ninety-Four Thousand Five
Hundred Forty-Four (95,544) shares of Xxxxx Common Stock are issued and
outstanding.
(b) Geneva Rock has an authorized capital structure consisting of
Fifty Thousand (50,000) shares of Ten Dollar ($10.00) par value common
stock ("Geneva Rock Common Stock"), and Twenty-One Thousand Eight
Hundred Two (21,802) shares of Geneva Rock Common Stock are issued and
outstanding.
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(c) Utah Service has an authorized capital structure consisting of
One Hundred Thousand (100,000) shares of Ten Dollar ($10.00) par value
common stock ("Utah Service Common Stock"), and Five Thousand Four
Hundred Thirteen (5,413) shares of Utah Service Common Stock are issued
and outstanding.
(d) Beehive Insurance has an authorized capital structure consisting
of Fifty Thousand (50,000) shares of One Dollar ($1.00) par value common
stock ("Beehive Insurance Common Stock"), and Twenty-One Thousand Four
Hundred Sixty-Seven (21,467) shares of Beehive Insurance Common Stock
are issued and outstanding.
3.3 Authority. The Acquired Corporation has all requisite corporate
power and authority to enter into this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by all necessary corporate action on the part of the Acquired
Corporation, subject in the case of this Agreement only to the approval of this
Agreement by the shareholders of the Acquired Corporation as required under the
URBCA.
3.4 Execution and Delivery. This Agreement has been duly executed and
delivered by the Acquired Corporation and constitutes a valid and binding
obligation of the Acquired Corporation, enforceable against the Acquired
Corporation in accordance with its terms but subject to (i) bankruptcy,
insolvency, reorganization, moratorium, fraudulent conveyance and equitable
principles, and (ii) statutes, rules or procedures and applicable case law
limiting the availability of or prescribing the procedural requirements for the
exercise of remedies.
3.5 Property. The Acquired Corporation has good, valid and marketable
title to (or in the case of leased property, valid leasehold interests in) all
of its properties and assets.
3.6 No Violations. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not, (a)
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or the loss of a material benefit
under, or the creation of a lien, pledge, security interest, charge or other
encumbrance on assets (any such conflict, violation, default, right of
termination, cancellation or acceleration, loss or creation, a "Violation")
pursuant to any provision of the Articles of Incorporation or Bylaws of the
Acquired Corporation, or (b) result in any Violation of (i) any loan or credit
agreement, note, mortgage,
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indenture, lease or other agreement, obligation, instrument, permit, concession,
franchise, license, statute, law, ordinance, rule or regulation applicable to
the Acquired Corporation or its properties or assets (except for such Violations
as would not, singly or in the aggregate, have a material adverse effect on the
Acquired Corporation), or (ii) any judgment, order or decree applicable to the
Acquired Corporation or its properties or assets.
3.7 Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental agency, authority or instrumentality, domestic
or foreign (each, a "Governmental Authority"), is required by or with respect to
the Acquired Corporation in connection with the execution and delivery of this
Agreement by the Acquired Corporation, or the consummation by the Acquired
Corporation of the transactions contemplated hereby, except for (a) the filing
with the SEC of the Registration Statement (including the Proxy Statement as a
part thereof), (b) the filing of the Articles of Merger with the Utah Division
of Corporations and appropriate documents with the relevant authorities of other
states in which the Acquired Corporation is qualified to do business, (c)
notices and other filings as may be required under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (d) filings as
may be required under state securities laws and (e) such filings,
authorizations, orders and approvals as may be required under foreign laws.
3.8 Information Supplied. None of the information supplied or to be
supplied by the Acquired Corporation for inclusion or incorporation by reference
in the Proxy Statement, at the date of mailing to the Acquired Corporation's
shareholders and at the time of its Special Meeting, will contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading. All documents that
the Acquired Corporation is responsible for filing with any Governmental
Authority in connection with the transactions contemplated hereby will comply as
to form in all material respects with the provisions of applicable law. Without
limiting any of the representations and warranties contained herein, no
representation or warranty by the Acquired Corporation as of the date thereof
contains any untrue statement of material fact, or omits a material fact
necessary in order to make the statements contained therein, in light of the
circumstances under which such statements are or will be made, not misleading.
3.9 Litigation. There are no actions, arbitrations, audits, hearings,
investigations, suits or litigation (whether
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civil, criminal, administrative, investigative or informal) before or otherwise
involving any Governmental Authority, court or arbitrator (a "Proceeding")
commenced by or against the Acquired Corporation (or that otherwise relate to or
may affect the business or the assets of the Acquired Corporation) that either
(a) challenge, or that may have the effect of preventing, delaying, making
illegal, or otherwise interfering with, any of transactions specified in this
Agreement, or (b) would reasonably be expected to have a material adverse effect
on the Acquired Corporation. To the knowledge of the Acquired Corporation, (1)
no such Proceeding has been threatened, and (2) no event has occurred or
circumstance exists that may give rise to or serve as a basis for the
commencement of any such Proceeding.
3.10. The financial statements of the Acquired Corporation (including
any balance sheets and statements of income, changes in stockholders' equity and
cash flow, together with any reports thereon of independent certified public
accountants) provided by the Acquired Corporation in connection with the
preparation of (a) the Registration Statement, and (b) the appraisals of the
Acquired Companies prepared by Xxxxxxxx Valuation Advisors and dated October 23,
1997 (the "HVA Appraisals"), fairly present the financial condition and the
results of operations, changes in stockholders' equity and cash flow of the
Acquired Corporation as at the respective dates of and for the periods referred
to in such financial statements, all in accordance with generally accepted
accounting principles ("GAAP"). The financial statements referred to in this
Section 3.10 reflect the consistent application of accounting principles
throughout the periods involved, except as otherwise disclosed in the notes to
such financial statements.
3.11 Taxes.
(a) All material reports, filings, statements, declarations and
returns (collectively, "Tax Returns") with respect to taxes, charges,
fees, levies or assessments (collectively, "Taxes") required to be filed
by the Acquired Corporation as of the Effective Time have been or will
be duly filed, and such Tax Returns are or will be true and correct in
all material respects. The Acquired Corporation has paid or will pay all
Taxes shown as due and payable on such Tax Returns; and the charges,
accruals and reserves for Taxes with respect to the Acquired Corporation
reflected in the Acquired Corporation's financial statements are
adequate under GAAP to cover Taxes accruing through the date thereof,
including contested amounts and amounts not yet due and payable.
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(b) There are no material claims with respect to Taxes pending
against the Acquired Corporation and the Acquired Corporation is not
aware of any threatened claim for Taxes or any basis for such claims. No
material issues have been raised in any examination by any Governmental
Authority with respect to the Acquired Corporation which reasonably
could be expected to result in a proposed deficiency for any other
period not so examined, and there are not now in force any waivers or
agreements by the Acquired Corporation for the extension of time for the
assessment of any material Taxes, nor has any such waiver or agreement
been requested by any Governmental Authority. The Acquired Corporation
does not have any liability for any material Taxes of any corporation or
entity other than the Acquired Corporation.
(c) The Acquired Corporation has paid or is withholding and will pay
when due to the proper Governmental Authorities all material withholding
amounts required to be withheld with respect to all Taxes.
3.12 Undisclosed Liabilities. The Acquired Corporation is not subject to
any liabilities of any nature which have had or can reasonably be expected to
have a material adverse effect on its business or financial prospects.
IV. Representations and Warranties of the Parent
The Parent represents and warrants to the Acquired Corporations as
follows, subject only to such exceptions and limitations as are set forth below:
4.1 Organization, Standing and Authority. Each of the Parent and the
Reorganization Corporations is a corporation duly organized, validly existing
and in good standing under the laws of the State of Utah, and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. Each of the Parent and the
Reorganization Corporations is duly qualified and in good standing to do
business in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification necessary,
except where the failure to be so qualified would not have a material adverse
effect on the Parent and the Reorganization Corporations considered as a whole.
4.2 Capital Structure of the Parent.
(a) As of the Effective Time, (i) the authorized capital stock of
the Parent will consist of Ten Million
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(10,000,000) shares of common stock ("Parent Common Stock"), and (ii)
2,303,920 shares of Parent Common Stock will be issued and outstanding.
Shares of Parent Common Stock to be issued in the Mergers, when issued
in accordance with this Agreement, will be validly issued, fully paid
and nonassessable.
(b) Except for the Articles of Restatement of the Articles of
Incorporation of the Parent and the Amended and Restated Articles of
Incorporation of the Parent attached thereto (collectively, the "Parent
Recapitalization Documents"), there are no options, warrants, calls,
rights, commitments or agreements of any character to which the Parent
or any of the Reorganization Corporations is a party or by which it is
bound obligating the Parent or any of the Reorganization Corporations to
issue, deliver or sell, or cause to be issued, delivered or sold, shares
of capital stock or obligating the Parent or any of the Reorganization
Corporations to grant, extend or enter into any such option, warrant,
call, right, commitment or agreement.
(c) Except for that certain Xxxxx Companies, Inc. Stock Redemption
Plan, adopted as of November 12, 1997 by the Board of Directors of the
Parent and the Parent Recapitalization Documents, there are no
outstanding contractual obligations of the Parent or any of the
Reorganization Corporations, to repurchase, redeem or otherwise acquire
any shares of capital stock of the Parent or any of the Reorganization
Corporations.
(d) Except for the Parent Recapitalization Documents, the Parent has
not (i) made or agreed to make any stock split or stock dividend, or
issued or permitted to be issued any shares of capital stock or
securities exercisable for or convertible into shares of capital stock
of the Parent or any of the Reorganization Corporations.
(e) All of the outstanding shares of capital stock of each
Reorganization Corporation (i) are validly issued, fully paid and
nonassessable and free of any preemptive rights, and (ii) are directly
owned by the Parent, free and clear of all liens, claims, pledges,
agreements, voting or other restrictions, charges or other encumbrances,
with the result that the Parent directly owns the entire equity interest
in each of the Reorganization Corporations.
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4.3 The Parent has all requisite corporate power and corporate
authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of the Parent.
4.4 Execution and Delivery. This Agreement has been duly executed and
delivered by the Parent and constitutes a valid and binding obligation of the
Parent, enforceable against the Parent in accordance with its terms but subject
to (i) bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance
and equitable principles, and (ii) statutes, rules or procedures and applicable
case law limiting the availability of or prescribing the procedural requirements
for the exercise of remedies.
4.5 No Violations. The execution and delivery of this Agreement does
not, and the consummation of the transactions contemplated hereby will not, (a)
result in any Violation of any provision of the Articles of Incorporation or
Bylaws of the Parent, or (b) result in any Violation of (i) any loan or credit
agreement, note, mortgage, indenture, lease or other agreement, obligation,
instrument, permit, concession, franchise, license, statute, law, ordinance,
rule or regulation applicable to the Parent or its properties or assets (except
for such Violations as would not, singly or in the aggregate, have a material
adverse effect on the Parent), or (ii) any judgment, order or decree applicable
to the Parent or its properties or assets.
4.6 Consents. No consent, approval, order or authorization of, or
registration, declaration or filing with, any Governmental Authority is required
by or with respect to the Parent in connection with the execution and delivery
of this Agreement by the Parent, or the consummation by the Parent of the
transactions contemplated hereby, except for (a) the filing with the SEC of the
Registration Statement (including the Proxy Statement as a part thereof), (b)
the filing of the Articles of Merger with the Utah Division of Corporations and
appropriate documents with the relevant authorities of other states in which the
Parent is qualified to do business, (c) notices and other filings as may be
required under the HSR Act, (d) filings as may be required under state
securities laws and (e) such filings, authorizations, orders and approvals as
may be required under foreign laws.
4.7 Information Supplied. None of the information supplied or to be
supplied by the Parent for inclusion or incorporation by reference in the Proxy
Statement, at the date of mailing to the Acquired Corporation's shareholders and
at the time of the Special Meeting, will contain any untrue statement of
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a material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. All documents that the
Parent is responsible for filing with any Governmental Authority in connection
with the transactions contemplated hereby will comply as to form in all material
respects with the provisions of applicable law. Without limiting any of the
representations and warranties contained herein, no representation or warranty
by the Parent as of the date thereof contains any untrue statement of material
fact, or omits a material fact necessary in order to make the statements
contained therein, in light of the circumstances under which such statements are
or will be made, not misleading.
4.8 The financial statements of the Parent (including any balance
sheets and statements of income, changes in stockholders' equity and cash flow,
together with any reports thereon of independent certified public accountants)
provided by the Parent in connection with the preparation of the Registration
Statement, fairly present the financial condition and the results of operations,
changes in stockholders' equity and cash flow of the Parent as at the respective
dates of and for the periods referred to in such financial statements, all in
accordance with GAAP. The financial statements referred to in this Section 4.8
reflect the consistent application of accounting principles throughout the
periods involved, except as otherwise disclosed in the notes to such financial
statements.
4.9 Litigation. There are no Proceedings commenced by or against the
Parent or any of the Reorganization Corporations (or that otherwise relate to or
may affect the business or the assets of the Parent or any of the Reorganization
Corporations) that either (a) challenge or may have the effect of preventing,
delaying, making illegal, or otherwise interfering with any of transactions
specified in this Agreement, or (b) would reasonably be expected to have a
material adverse effect on the Parent and the Reorganization Corporations
considered as a whole. To the knowledge of the Parent, (a) no such Proceeding
has been threatened, and (b) no event has occurred or circumstance exists that
may give rise to or serve as a basis for the commencement of any such
Proceeding.
4.10 Undisclosed Liabilities. The Parent is not subject to any
liabilities of any nature which have had or can reasonably be expected to have a
material adverse effect on its business or financial prospects.
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V. Conditions to Closing
5.1 Conditions to the Corporations' Obligations. The respective
obligations of each of the Corporations to consummate the Mergers shall be
subject to the satisfaction, on or prior to the Closing Date, of each of the
following conditions:
(a) This Agreement shall have been approved by (i) the shareholders
of each of the Reorganization Corporations and the Acquired Corporations
in accordance with the URBCA, and (ii) a majority of the shareholders of
the Parent in accordance with resolutions duly adopted by the Board of
Directors of the Parent.
(b) The total number of Dissenting Shares, if converted into shares
of Parent Common Stock in accordance with Section 2.1 above, would be
less than or equal to 346,935 shares of Parent Common Stock (which
number of shares of Parent Common Stock is equal to five percent (5%) of
the total number of shares of Parent Common Stock that would be
outstanding immediately after the Mergers if there were no Dissenting
Shares and all of the shares of the common stock of the Acquired
Companies were converted into Parent Common Stock in accordance with
Section 2.1 above).
(c) The Parent and the Acquired Corporations shall have received the
opinion of Xxxxx Xxxxxxx LLP that the Mergers constitute tax-free
transfers in accordance with Section 351 of the Code or tax-free
reorganizations in accordance with Section 368(a)(1)(B) of the Code.
(d) No Governmental Authority shall have issued any order, and there
shall not be any statute, rule, decree or regulation restraining,
prohibiting or making illegal the consummation of the Merger.
(e) Any waiting period applicable to the consummation of the Mergers
under the HSR Act shall have expired or been terminated.
5.2 Conditions to the Obligations of the Acquired Corporations. The
obligation of the Acquired Corporations to effect the Mergers is further subject
to the satisfaction or waiver, on or prior to the Closing Date, of each of the
following conditions:
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(a) The representations and warranties of the Parent contained in
this Agreement shall be true and correct in all material respects when
made and as of the Closing Date (except for matters which specifically
address a particular date which need only be true and correct as of such
date).
(b) The Parent shall have performed in all material respects all of
the obligations to be performed by it under this Agreement prior to the
Closing Date.
(c) A responsible officer of the Parent shall have provided the
Acquired Corporations with a certificate dated the Closing Date which
provides (i) that the matters referred to in subsections (a) and (b) of
this Section 5.2 are accurate and complete, (ii) that the Parent is
prepared in all material respects to perform, and shall perform, all of
the obligations to be performed by it under this Agreement up to the
Effective Time, and (iii) for statements of fact with respect to such
other matters as the Acquired Corporations may reasonably request.
5.3 Conditions to the Obligations of the Parent. The obligation of the
Parent to effect the Mergers is further subject to the satisfaction or waiver,
on or prior to the Closing Date, of each of the following conditions:
(a) The representations and warranties of each of the Acquired
Corporations contained in this Agreement shall be true and correct in
all material respects when made and as of the Closing Date (except for
matters which specifically address a particular date which need only be
true and correct as of such date).
(b) Each of the Acquired Corporations shall have performed in all
material respects all of the obligations to be performed by it under
this Agreement prior to the Closing Date.
(c) A responsible officer of each of the Acquired Corporations shall
have provided the Parent with a certificate dated the Closing Date which
provides (i) that the matters referred to in subsections (a) and (b) of
this Section 5.3 are accurate and complete, (ii) that the Acquired
Corporation is prepared in all material respects to perform, and shall
perform, all of the obligations to be performed by it under this
Agreement up to the Effective Time, and (iii) for
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statements of fact with respect to such other matters as the Parent may
reasonably request.
VI. Termination
6.1 Right to Terminate. Notwithstanding any other provision of this
Agreement to the contrary, this Agreement may be terminated and the Mergers may
be abandoned at any time prior to the Effective Time, whether before or after
shareholder approval, in accordance with Sections 6.2 through 6.4 below.
6.2 Automatic Termination. Unless otherwise agreed in writing by each of
the Corporations, this Agreement shall be automatically terminated, without any
further actions by any of the Corporations (except as may be otherwise required
by the URBCA), if (a) any Governmental Authority shall have issued a statute,
order, decree or regulation or taken any other action permanently restraining or
enjoining or otherwise materially restricting the consummation of the
transactions contemplated by this Agreement and such statute, order, decree,
regulation or other action shall have become final and non-appealable, or (b)
the Mergers have not been consummated on or before June 30, 1998.
6.3 Termination by the Acquired Corporations. This Agreement may be
terminated by the Boards of Directors of the Acquired Corporations, acting
jointly, if the Parent breaches or fails in any material respect to perform or
comply with any of its covenants and agreements contained herein or breaches its
representations and warranties in any material respect; provided, however, that
if any such breach is curable by the breaching party through the exercise of the
breaching party's reasonable best efforts and for so long as such breaching
party shall be so attempting to cure such breach for a period not to exceed 20
days, the Acquired Corporations may not terminate this Agreement pursuant to
this Section 6.3.
6.4 Termination by the Parent. This Agreement may be terminated by the
Board of Directors of the Parent if any of the Acquired Corporations breaches or
fails in any material respect to perform or comply with any of its covenants and
agreements contained herein or breaches its representations and warranties in
any material respect; provided, however, that if any such breach is curable by
the Acquired Corporation through the exercise of the Acquired Corporation's
reasonable best efforts and for so long as the Acquired Corporations shall be so
attempting to cure such breach for a period not to exceed 20 days, the Parent
may not terminate this Agreement pursuant to this Section 6.4.
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6.5 Notice of Termination. In the event of the termination of this
Agreement as provided in Sections 6.3 or 6.4 above, written notice thereof shall
forthwith be given to the other party and such written notice shall specify the
provision of this Agreement pursuant to which such termination is made.
6.6 Effect of Termination. Upon the termination of this Agreement
pursuant to any of Sections 6.2, 6.3 or 6.4 above, this Agreement shall
thereupon become null and void and there shall be no liability on the part of
any of the Corporations to the other (or to any other person). Without limiting
the generality of the foregoing, the Corporations expressly agree (a) that the
sole remedy for any breach of this Agreement shall be the termination rights
contained in Sections 6.3 or 6.4 above, and (b) that in the event of any breach
of this Agreement, the breaching party shall have no liability to any person
whatsoever (including, without limitation, liability for actual, consequential,
punitive, exemplary or special damages).
VII. General Provisions
7.1 Approval. This Agreement has been approved by the Board of Directors
and the shareholders of each of the Corporations as required by the URBCA.
7.2 Actions Prior to Closing. Between the date of this Agreement and the
Effective Time, (a) the Acquired Corporations shall each operate their
respective businesses in accordance with sound business practices and shall not
engage in any transactions other than in the ordinary course of business, and
(b) neither the Parent nor any of the Acquired Corporations shall issue any
additional shares of its capital stock (except, the Parent shall issue shares of
Parent Common Stock in accordance with the Parent Recapitalization Documents).
7.3 Taxation of Transaction. The Corporations intend that the
transactions contemplated by this Agreement shall constitute tax-free transfers
and/or reorganizations pursuant to Sections 351 and 368 of the Code. Therefore,
all of the terms and provisions of this Agreement shall be interpreted so that
such terms and provisions are in accordance with Sections 351 and 368 of the
Code.
7.4 Additional Actions. The officers of the Corporations shall execute
all such other documents and shall take all such other actions as may be
necessary or advisable to make this Agreement and the Mergers effective.
7.5. Subject to applicable law, this Agreement may be amended, modified
or supplemented at
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any time prior to the Closing Date by the written agreement of each of the
Corporations and the Parent.
7.6 Waiver of Compliance. Except as otherwise provided in this
Agreement, any failure of any of the Corporations to comply with any obligation,
covenant, agreement or condition herein may be waived by the party entitled to
the benefits thereof only by a written instrument signed by the party granting
such waiver, 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 subsequent or other failure.
7.7 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally, by overnight express
courier service or by facsimile transmission (in each case, as of the date of a
written receipt obtained by the party giving such notice), 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 Xxxxx, to:
0000 X. Xxxx Xxxxxx
Xxxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
(b) if to Geneva Rock, to:
000 Xxxx 0000 Xxxxx
Xxxxx 000
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
(c) if to the Utah Service, to:
00 Xxxx 000 Xxxxx
Xxxxxxxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
(d) if to the Beehive Insurance, to:
000 Xxxx 0000 Xxxxx
Xxxxx 000
Xxxxxx, Xxxx 00000
Facsimile: (000) 000-0000
(e) if to the Parent, to:
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0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxx Xxxx, Xxxx 00000
Facsimile: (801) ___-____
Copies of any notices should be provided to counsel as follows:
Van Cott, Xxxxxx, Cornwall & XxXxxxxx
00 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxxx Xxxx Xxxx, Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
7.8 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the Corporations and their respective
successors and assigns.
7.9 Third Party Rights. This Agreement is not intended to confer upon
any other person except the Corporations any rights or remedies hereunder.
7.10 Interpretation. The article and section headings contained in this
Agreement are solely for the purpose of reference, are not part of the agreement
of the parties and shall not in any way affect the meaning or interpretation of
this Agreement. All words used in this Agreement shall be construed to be of
such gender or number as the circumstances require.
7.11 Entire Agreement. This Agreement, including any certificates and
instruments referred to herein, embody the entire agreement and understanding of
the Corporations in respect of the transactions contemplated by this Agreement.
There are no restrictions, promises, representations, warranties, covenants or
undertakings, other than those expressly set forth or referred to herein. This
Agreement supersedes all prior agreements and understandings between the
Corporations with respect to such transactions.
7.12 Expenses. If the Mergers are consummated in accordance with this
Agreement, the Parent shall pay all of the expenses incurred by the Corporations
in connection with transactions contemplated by this Agreement. If this
Agreement is terminated, (a) each Corporation shall pay its pro rata share
(based upon the valuation of each of the Corporations as set forth in the HVA
Appraisals) of the expenses incurred by all of the Corporations in connection
with transactions contemplated by this Agreement, and (b) the officers of each
of the Corporations shall, in good faith, take all of the actions which may be
necessary or advisable to cause such expenses to be paid in accordance with
clause (a) above.
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7.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
7.14 Governing Law. This Agreement shall be governed by the laws of the
State of Utah (regardless of the laws that might otherwise govern under
applicable principles of conflicts of law) as to all matters, including but not
limited to matters of validity, construction, effect, performance and remedies.
[signature page follows]
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IN WITNESS WHEREOF, this Agreement has been executed by the duly
authorized officers of the Corporations as of the date first written above.
Acquired
Corporations: X.X. Xxxxx & Co., a Utah corporation
By: ____________________________
Its: ___________________________
Geneva Rock Products, Inc., a Utah corporation
By: ____________________________
Its: ___________________________
Utah Service Inc., a Utah corporation
By: ____________________________
Its: ___________________________
Beehive Insurance Agency, Inc., a Utah corporation
By: ____________________________
Its: ___________________________
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Reorganization
Corporations: X.X. Xxxxx Reorganization
Corporation, a Utah corporation
Geneva Rock Reorganization
Corporation, a Utah corporation
Utah Service Reorganization
Corporation, a Utah corporation
Beehive Insurance Reorganization
Corporation, a Utah corporation
By: ____________________________
Their: _________________________
The Parent: Xxxxx Companies, Inc.,
a Utah corporation
By: ____________________________
Its: ___________________________
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