EXHIBIT 2.1
AGREEMENT AND PLAN OF MERGER
BY AND BETWEEN
XXXX BROS. TRANSPORTATION INC.
AND
BBT ACQUISITION CORPORATION
DATED AS OF DECEMBER 31, 2003
TABLE OF CONTENTS
ARTICLE 1
THE MERGER
1.1 The Merger..................................................... 5
1.2 The Closing.................................................... 5
1.3 Effective Time................................................. 5
1.4 Effect of the Merger........................................... 6
ARTICLE 2
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation of the Surviving Corporation...... 6
2.2 By-Laws of the Surviving Corporation........................... 6
2.3 Directors of the Surviving Corporation......................... 6
2.4 Officers of the Surviving Corporation.......................... 6
ARTICLE 3
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT
CORPORATIONS; CANCELLATION AND CONVERSION OF SECURITIES
3.1 Conversion of Company Common Stock............................. 6
3.2 Capital Stock of Mergerco...................................... 7
3.3 Cancellation of Treasury Stock and Mergerco Owned Stock........ 7
3.4 Exchange of Certificates....................................... 7
3.6 Dissenting Shares.............................................. 10
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
4.1 Organization and Qualification................................. 11
4.2 Authorization and Enforceability............................... 11
4.3 Certificate of Incorporation and By-laws....................... 12
4.4 Capitalization................................................. 12
4.5 Consents and Approvals......................................... 12
4.6 Company Action................................................. 13
4.7 State Takeover Laws............................................ 13
4.8 Vote Required.................................................. 13
4.9 Fairness Opinion............................................... 14
4.10 No Finders..................................................... 14
4.11 Proxy Statement................................................ 14
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF MERGERCO
5.1 Organization and Qualification................................. 14
5.2 Authorization.................................................. 14
5.3 Consents and Approvals......................................... 15
5.4 No Finders..................................................... 15
5.5 Proxy Statement................................................ 15
5.6 No Other Assets or Liabilities................................. 15
5.7 Certificate of Incorporation and By-Laws....................... 15
ARTICLE 6
COVENANTS
6.1 Conduct of Business of the Company............................. 16
6.2 Conduct of Business of Mergerco................................ 16
6.3 No Solicitation................................................ 16
6.4 Company Stockholders Meeting................................... 18
6.5 Proxy Statement and Schedule 13E-3............................. 19
6.6 Access to Information.......................................... 20
6.7 Approvals and Consents; Cooperation............................ 21
6.8 Take-over Statutes; Inconsistent Actions....................... 21
6.9 Financing...................................................... 21
6.10 Expenses....................................................... 21
6.11 Further Actions................................................ 22
6.12 Officers' and Directors' Indemnification....................... 22
6.13 Notification of Certain Matters................................ 23
6.14 Payment of Fees for Special Committee and Advisors............. 23
ARTICLE 7
CLOSING CONDITIONS
7.1 Conditions to Obligations of Mergerco and the Company.......... 23
7.2 Conditions to Obligations of Mergerco.......................... 24
7.3 Conditions to Obligations of the Company....................... 25
ARTICLE 8
TERMINATION AND ABANDONMENT
8.1 Termination.................................................... 25
8.2 Effect of Termination.......................................... 27
8.3 Expense Reimbursement.......................................... 27
8.4 No Penalty; Costs of Collection................................ 28
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ARTICLE 9
GENERAL PROVISIONS
9.1 Non-Survival of Representations, Warranties and Covenants...... 28
9.2 Amendment and Modification..................................... 28
9.3 Waiver......................................................... 28
9.4 Notices........................................................ 29
9.5 Assignment..................................................... 30
9.6 Governing Law.................................................. 30
9.7 Knowledge...................................................... 30
9.8 Interpretation................................................. 30
9.9 Publicity...................................................... 30
9.10 Entire Agreement............................................... 31
9.11 Severability................................................... 31
9.12 Specific Performance........................................... 31
9.13 Counterparts................................................... 31
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is dated December
31, 2003, by and between XXXX BROS. TRANSPORTATION INC., a Delaware corporation
(the "Company"), and BBT ACQUISITION CORPORATION, a Delaware corporation
("Mergerco")
WHEREAS, Mergerco was incorporated on December 31, 2003, for the sole
purpose of entering into the transactions contemplated by this Agreement;
WHEREAS, as of the date hereof there are four shares of common stock of
Mergerco issued and outstanding;
WHEREAS, Xxxxxxx Xxxx, Xxxxxxx X. Xxxx, Xxxx X. Xxxxxx and Xxxxxx X.
Xxxxx each own one share of common stock of Mergerco;
WHEREAS, the stockholders of the Company named on Exhibit A
(collectively, the "Affiliated Stockholders") have agreed to contribute their
shares of common stock, par value $0.001 per share, of the Company ("Company
Common Stock") to Mergerco in exchange for a number of whole and fractional
shares of common stock of Mergerco equal to the number of shares of Company
Common Stock contributed to Mergerco divided by One Thousand (1,000), such
contribution to take place after the last of the conditions set forth in Section
7.2 has been fulfilled or waived but prior to the Effective Time (as defined in
Section 1.3); and
WHEREAS, at the Effective Time (as defined in Section 1.3), Mergerco
will be merged with and into the Company, with the Company as the surviving
corporation, on the terms and conditions set forth in this Agreement and the
Delaware General Corporation Law (the "Merger"); and
WHEREAS, pursuant to the Merger, each share of Company Common Stock
(other than shares owned by Mergerco or any of the Affiliated Stockholders) will
be converted into the right to receive $7.00 in cash per share; and
WHEREAS, a special committee of the Board of Directors of the Company
consisting solely of independent directors (the "Special Committee") has (i)
determined that the Merger is fair to the holders of shares of Company Common
Stock (other than Mergerco or any of the Affiliated Stockholders), (ii) received
an opinion from Xxxx Xxxxx, Inc. that the consideration to be paid in the Merger
is fair to the holders of shares of the Company Common Stock (other than
Mergerco or any of the Affiliated Stockholders) from a financial point of view,
(iii) has determined that this Agreement, the Merger and the transactions
contemplated by this Agreement are in the best interests of the Company and its
stockholders (other than Mergerco or any of the Affiliated Stockholders), and
(iv) has recommended to the Board of Directors of the Company that the Board of
Directors declare the advisability of this Agreement and approve and adopt this
Agreement, the Merger and the other transactions contemplated by this Agreement;
and
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WHEREAS, based on the recommendation of the Special Committee, the
Board of Directors of the Company has adopted resolutions declaring the
advisability of this Agreement and has determined that this Agreement and the
Merger and the other transactions contemplated by this Agreement are in the best
interests of the Company and its stockholders (other than Mergerco or any of the
Affiliated Stockholders) and has approved and adopted this Agreement, the Merger
and the other transactions contemplated by this Agreement; and
WHEREAS, the Company and Mergerco desire to make certain
representations, warranties and agreements in connection with the Merger and the
other transactions contemplated by this Agreement and also to prescribe various
conditions to the Merger;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows:
ARTICLE 1
THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, and in accordance with the General Corporation Law of
the State of Delaware ("DGCL"), at the Effective Time (as defined in Section
1.3), Mergerco will be merged with and into the Company, whereupon the separate
corporate existence of Mergerco will cease, and the Company will continue as the
surviving corporation in the Merger (the "Surviving Corporation") under the laws
of the State of Delaware under the name "Xxxx Bros. Transportation Inc."
1.2 The Closing. The closing of the Merger (the "Closing") will
take place at 10:00 a.m., Central Time, on a date to be specified by the parties
which will be no later than the second Business Day (as defined below) after the
satisfaction or waiver (subject to applicable law) of the conditions (excluding
conditions that, by their nature, cannot be satisfied until the Closing Date (as
defined below)), set forth in Article 7, unless this Agreement has been
theretofore terminated pursuant to its terms or unless another time or date is
agreed to in writing by the parties hereto (the actual time and date of the
Closing being referred to herein as the "Closing Date"). The Company (acting
through the Special Committee) will as promptly as practicable notify Mergerco,
and Mergerco will as promptly as practicable notify the Company, when the
conditions to such party's obligation to effect the Merger contained in Article
7 have been satisfied. For purposes of this Agreement, a "Business Day" will
mean any day that is not a Saturday, a Sunday or other day on which the offices
of the Secretary of State of the State of Delaware are closed.
1.3 Effective Time. At the Closing, the Company and Mergerco will
file, or cause to be filed, with the Secretary of State of the State of
Delaware, a certificate of merger (the "Certificate of Merger") in accordance
with the DGCL, in such form as is required by, and executed in accordance with,
the relevant provisions of, the DGCL. The parties will take such other and
further actions as may be required by law to make the Merger effective. The
Merger will become effective at such time as the Certificate of Merger is
accepted for filing by the Secretary of State of the State of Delaware or, if
agreed to by the Company and Mergerco, at such later time or date as is set
forth in the Certificate of Merger (the "Effective Time").
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1.4 Effect of the Merger. At and after the Effective Time, the
Merger will have the effects set forth in the DGCL. Without limiting the
generality of the foregoing, and subject thereto, at the Effective Time, all the
property, rights, privileges, powers and franchises of the Company and Mergerco
will vest in the Surviving Corporation, and all debts, liabilities, obligations,
restrictions, disabilities and duties of the Company and Mergerco will become
the debts, liabilities, obligations, restrictions, disabilities and duties of
the Surviving Corporation.
ARTICLE 2
THE SURVIVING CORPORATION
2.1 Certificate of Incorporation of the Surviving Corporation. At
the Effective Time, the Certificate of Incorporation of the Company, amended and
restated as set forth on Exhibit B, will be the certificate of incorporation of
the Surviving Corporation.
2.2 By-Laws of the Surviving Corporation. At the Effective Time,
the By-Laws of the Company, as in effect immediately prior to the Effective
Time, will be the By-Laws of the Surviving Corporation until thereafter amended
in accordance with applicable law, the provisions of the Certificate of
Incorporation of the Surviving Corporation and the provisions of such By-Laws.
2.3 Directors of the Surviving Corporation. The directors of
Mergerco immediately prior to the Effective Time will be the directors of the
Surviving Corporation until the earlier of their respective deaths, resignations
or removals or until their respective successors are duly elected and qualified,
as the case may be.
2.4 Officers of the Surviving Corporation. The officers of the
Company immediately prior to the Effective Time will be the officers of the
Surviving Corporation until the earlier of their respective deaths, resignations
or removals or until their respective successors are duly elected or appointed
and qualified, as the case may be.
ARTICLE 3
EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS; CANCELLATION AND CONVERSION OF
SECURITIES
3.1 Conversion of Company Common Stock. At the Effective Time,
subject to the provisions of this Agreement (including without limitation this
Section 3.1 and Sections 3.4 and 3.6), automatically by virtue of the Merger and
without any further action on the part of Mergerco, the Company or any holder of
any share of capital stock of the Company or Mergerco, each share of Company
Common Stock issued and outstanding immediately prior to the Effective Time
(other than shares of Company Common Stock owned by Mergerco or any of the
Affiliated Stockholders and other than the Dissenting Shares (as defined in
Section 3.6)) will be converted into the right to receive in cash, without
interest, an amount equal to $7.00 (the "Merger Consideration"). At the
Effective Time, all such shares of Company Common Stock so converted into Merger
Consideration will no longer be outstanding and will automatically be
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cancelled and retired and will cease to exist, and each holder of a certificate
representing any such shares of Company Common Stock will cease to have any
rights with respect thereto, except the right to receive the Merger
Consideration upon surrender of such certificates in accordance with Section
3.4.
3.2 Capital Stock of Mergerco. At the Effective Time,
automatically by virtue of the Merger and without any further action on the part
of Mergerco, the Company or any holder of any share of capital stock of the
Company or Mergerco, each share of common stock, par value $0.01 per share, of
Mergerco issued and outstanding immediately prior to the Effective Time will be
converted into and become a number of fully paid and non-assessable shares of
common stock, par value $0.001 per share, of the Surviving Corporation equal to
the number of whole and fractional shares of Mergerco common stock to be so
converted. Such shares of common stock will constitute all of the issued and
outstanding shares of capital stock of the Surviving Corporation at the
Effective Time. Company Common Stock owned by Mergerco or any of the Affiliated
Stockholders immediately prior to the Effective Time will be cancelled and cease
to exist in accordance with Section 3.3.
3.3 Cancellation of Treasury Stock and Mergerco Owned Stock. At
the Effective Time, automatically by virtue of the Merger and without any
further action on the part of Mergerco, the Company or any holder of any share
of capital stock of the Company or Mergerco, each share of Company Common Stock
issued and held immediately prior to the Effective Time in the Company's
treasury and each share of Company Common Stock that is owned by Mergerco or any
of the Affiliated Stockholders (the "Cancelled Shares") will automatically be
cancelled and retired and will cease to exist, and no consideration will be
delivered in exchange therefor.
3.4 Exchange of Certificates
(a) Prior to the Effective Time, Mergerco will (i)
designate SunTrust Bank or other commercial bank or trust company to act as the
paying agent (the "Paying Agent") for the benefit of holders of shares of
Company Common Stock (other than the Cancelled Shares and the Dissenting Shares)
in the Merger and Mergerco will enter into an agreement with the Paying Agent
pursuant to which, after the Effective Time, the Paying Agent will distribute
the Merger Consideration on a timely basis, and (ii) irrevocably deposit or
cause to be deposited with the Paying Agent cash in an amount required with
respect to the conversion of shares of Company Common Stock at the Effective
Time pursuant to Section 3.1 and this Section 3.4 as share certificates are
surrendered (such cash being hereinafter referred to as the "Exchange Fund").
The Paying Agent must, pursuant to irrevocable instructions, deliver the cash
contemplated to be paid pursuant to Section 3.1 out of the Exchange Fund. Except
as contemplated by Section 3.4(g), the Exchange Fund must not be used for any
other purpose.
(b) As promptly as reasonably practicable after the
Effective Time, the Surviving Corporation will cause the Paying Agent to mail to
each holder of record of a certificate or certificates (to the extent such
certificates have not already been submitted to the Paying Agent) which
immediately prior to the Effective Time represented outstanding shares (other
than Cancelled Shares and Dissenting Shares) of Company Common Stock (the
"Certificates") (i) a letter of transmittal (which will be in customary form and
will specify that
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delivery will be effected, and risk of loss and title to the Certificates will
pass, only upon proper delivery of the Certificates to the Paying Agent and will
be in such form and have such other provisions as the Surviving Corporation and
the Paying Agent will reasonably specify) and (ii) instructions for use in
effecting the surrender of the Certificates in exchange for the aggregate Merger
Consideration into which the number of shares of Company Common Stock previously
represented by such Certificates will have been converted into the right to
receive pursuant to this Agreement.
(c) Upon surrender to the Paying Agent of a Certificate
for cancellation, together with such letter of transmittal, duly executed and
completed in accordance with the instructions thereto, and such other documents
as may be reasonably required by the Paying Agent pursuant to such instructions,
the holder of such Certificate will be entitled to receive in exchange therefor
the Merger Consideration for each share of Company Common Stock formerly
represented by such Certificate, to be distributed as soon as practicable after
the Effective Time (after giving effect to any required tax withholding) in each
case without interest, and the Certificate so surrendered will immediately be
cancelled. In the event of a transfer of ownership of shares of Company Common
Stock which is not registered in the transfer records of the Company, the Merger
Consideration may be issued to a transferee if the Certificate representing such
shares of Company Common Stock is presented to the Paying Agent, accompanied by
all documents required to evidence and effect such transfer and by evidence that
any applicable stock transfer taxes have been paid. Until surrendered as
contemplated by this Section 3.4, each Certificate will be deemed at all times
after the Effective Time for all purposes to represent only the right to receive
upon such surrender the Merger Consideration with respect to each share of
Company Common Stock formerly represented thereby.
(d) Cash paid upon conversion of the shares of Company
Common Stock in accordance with the terms hereof will be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of Company
Common Stock and, following the Effective Time, there will be no further
registration of transfers on the stock transfer books of the Surviving
Corporation of the shares of Company Common 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
will be cancelled and exchanged as provided in this Section 3.4. From and after
the Effective Time, holders of Certificates will cease to have any rights as
stockholders of the Company, except for the right to receive upon the surrender
of such Certificates, in accordance with this Section 3.4, the Merger
Consideration with respect to each share of Company Common Stock formerly
represented by such Certificates or as otherwise provided by law.
(e) To the extent permitted by applicable law, any
portion of the Exchange Fund (plus any interest and other income received by the
Paying Agent in respect of such funds) which remains undistributed to the
holders of shares of Company Common Stock twelve months after the Effective Time
will be delivered to the Surviving Corporation, upon demand, and any holders of
shares of Company Common Stock who have not theretofore complied with this
Section 3.4 must thereafter look, as general creditors, only to the Surviving
Corporation for the Merger Consideration, without interest. Any portion of the
Exchange Fund remaining unclaimed by holders of shares of Company Common Stock
three years after the Effective Time (or such earlier date, as is immediately
prior to such time as such amounts would otherwise escheat to or
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become property of any government entity) will, to the extent permitted by
applicable law, become the property of the Surviving Corporation, free and clear
of any claims or interest of any person previously entitled thereto.
(f) Notwithstanding any other provision in this Section
3.4, neither the Paying Agent nor the Surviving Corporation will be liable to
any holder of shares of Company Common Stock for any cash delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(g) The Paying Agent or, at any time after twelve months
following the Effective Time, the Surviving Corporation will be entitled to
deduct and withhold from the consideration otherwise payable pursuant to this
Agreement to any holder of shares of Company Common Stock such amounts as it is
required to deduct and withhold from such payment under the Internal Revenue
Code of 1986, as amended (the "Code"), or any provision of state, local or
foreign tax law. To the extent that amounts are so withheld by the Paying Agent
or the Surviving Corporation, as applicable, such withheld amounts will be
treated for all purposes of this Agreement as having been paid to the holder of
the shares of Company Common Stock in respect of which such deduction and
withholding was made.
(h) If any Certificate has been lost, stolen or
destroyed, upon the delivery to the Paying Agent 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 Paying Agent will issue in exchange for such lost, stolen or destroyed
Certificate the Merger Consideration for each share of Company Common Stock
represented by such Certificate.
(i) The Paying Agent will invest the Exchange Fund as
directed by the Surviving Corporation (so long as such directions do not impair
the rights of the holders of Company Common Stock) in direct obligations of, or
money market funds substantially all the assets of which are invested in direct
obligations of, the United States of America or any agency the obligations of
which are backed by the full faith and credit of the United States of America.
Any interest and other income resulting from such investments will be paid to
the Surviving Corporation, and no interest or other income will be paid or
accrued on the Merger Consideration to the holders of Company Common Stock.
3.5 Stock Options
(a) Not later than 30 days prior to the Effective Time,
the Company will send a notice (the "Option Notice") to all holders of
outstanding options to purchase shares of Company Common Stock (the "Company
Options") (other than any of the Affiliated Stockholders) heretofore granted
under any stock option plan, program or arrangement of the Company or under any
stock option agreement, including, without limitation, the Company's 1994 Stock
Option Plan (the "Company Stock Plan"): (i) specifying that such options will
not be assumed and will be terminated in connection with the Merger, and (ii)
specifying that any Company Options outstanding as of the Effective Time will
thereafter represent only the right to receive the consideration, if any,
specified in Section 3.5(c) in accordance with this Agreement.
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Any provision of this Section 3.5 to the contrary not withstanding, all Company
Options held by the Affiliated Stockholders will be terminated in connection
with the Merger and the holders thereof shall not receive the consideration
specified in Section 3.5(c) or other consideration for such terminated Company
Options.
(b) The Company will permit each holder of a Company
Option who desires to exercise all or any portion of such Company Option
following receipt of the Option Notice to exercise such Company Option prior to
the Effective Time.
(c) Each Company Option outstanding as of the Effective
Time will by virtue of the Merger, and without any action on the part of the
holder thereof, be converted into, and represent only, the right to receive (net
of applicable withholding taxes) an amount in cash equal to the excess, if any,
of (i) the product of the Merger Consideration multiplied by the number of
shares of Company Common Stock which are issuable upon exercise of such Company
Option (regardless of whether such Company Option is vested or not) immediately
prior to the Effective Time over (ii) the exercise price of those shares of
Company Common Stock subject to such Company Option. The aggregate amount
payable with respect to each such Company Option pursuant to this Section 3.5(c)
will hereinafter be referred to as the "Option Cash-Out Amount."
(d) Promptly following the Effective Time, the Surviving
Corporation will cause the Paying Agent to mail to each holder (as of the
Effective Time) of a Company Option which was converted into the right to
receive the Option Cash-Out Amount pursuant to Section 3.5(c) hereof, (i) a
letter of transmittal (which will be in such form and have such other provisions
as the Surviving Corporation may reasonably specify), and (ii) instructions for
use in receiving cash payable in respect of such Company Options. Upon the
delivery of such letter of transmittal by or on behalf of a holder of a Company
Option, duly completed and validly executed in accordance with the instructions
thereto, together with the documentation representing the Company Options
surrendered thereby, to the Paying Agent, such holder of a Company Option will
be entitled to receive the Option Cash-Out Amount payable to it in respect of
such Company Option pursuant to Section 3.5(c).
3.6 Dissenting Shares. Notwithstanding anything in this Agreement
to the contrary, to the extent (if at all) that holders of Company Common Stock
are entitled to appraisal rights under Section 262 of the DGCL, shares of
Company Common Stock issued and outstanding immediately prior to the Effective
Time and held by a holder who has properly exercised and perfected his or her
demand for appraisal rights under Section 262 of the DGCL or any successor
provision (the "Dissenting Shares"), will not be converted into the right to
receive the Merger Consideration, but the holders of Dissenting Shares will be
entitled to receive from the Company such consideration as will be determined
pursuant to Section 262 of the DGCL; provided, however, that if any such holder
will have failed to perfect or will effectively withdraw or lose his or her
right to appraisal and payment under the DGCL, each share of Company Common
Stock held by such holder will thereupon be deemed to have been converted as of
the Effective Time into the right to receive the Merger Consideration, without
any interest thereon, upon the surrender of the Certificate representing such
share of Company Common Stock pursuant to Section 3.4, and such shares will not
be deemed to be Dissenting Shares. The Company will give Mergerco (i) prompt
notice of any written notices or demands for appraisal of Company Common Stock
received by the Company and (ii) the opportunity to participate and direct all
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negotiations and proceedings with respect to any such demands or notices. The
Company will not, without the prior written consent of Mergerco, make any
payment with respect to, or settle, offer to settle, or otherwise negotiate any
such demands.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Except as set forth in the disclosure schedule delivered by the Company
to Mergerco prior to execution of this Agreement (the "Company Disclosure
Schedule"), which identifies by section number the provision of this Agreement
to which such exception or qualification relates, the Company represents and
warrants to Mergerco as of the date hereof as follows:
4.1 Organization and Qualification. The Company and each
subsidiary of the Company (referred to herein as a "Company Subsidiary") is a
corporation duly organized, validly existing, and in good standing under the
laws of its respective jurisdiction of incorporation 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. The Company and each Company
Subsidiary is duly qualified and in good standing to do business in each
jurisdiction in which the property owned, leased, or operated by it or the
nature of the business conducted by it makes such qualification necessary and
where the failure to qualify could reasonably be expected to have a Company
Material Adverse Effect (as defined below). "Company Material Adverse Effect"
means any effect, change, event, circumstance or condition that, individually or
in the aggregate with all similar effects, changes, events, circumstances or
conditions, has or would reasonably be expected to have (i) a material adverse
effect on the business (including its prospects), operations, assets,
properties, results of operations, or financial condition of the Company and the
Company Subsidiaries, (ii) the effect of preventing or materially delaying the
consummation of the Merger or otherwise has or would reasonably be expected to
have a material adverse effect on the ability of the Company to perform its
obligations under this Agreement, or (iii) a material adverse effect on the
ability of the Surviving Corporation to conduct such business (as presently
conducted) following the Effective Time.
4.2 Authorization and Enforceability. The Company has the
requisite corporate power and authority to execute and deliver this Agreement
and, subject to obtaining the necessary approval of this Agreement and the
Merger by its stockholders, the requisite corporate power and authority to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by the Company and the consummation of the transactions
contemplated hereby have been duly and validly authorized and approved by the
Company's Board of Directors (based upon the recommendation of the Special
Committee) and, subject to obtaining the approval of the Company's stockholders
as contemplated by Section 7.1(a), no other corporate action on the part of the
Company or any Company Subsidiary is necessary to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by the Company and, assuming the due authorization, execution and
delivery of this Agreement by Mergerco, constitutes the valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms, subject to laws of general application relating to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and rules of law governing specific performance,
injunctive relief, or other equitable remedies.
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4.3 Certificate of Incorporation and By-laws. The Company has
heretofore furnished or made available to Mergerco a complete and correct copy
of the Certificate of Incorporation and the By-laws of the Company and the
Certificate of Incorporation, By-laws or equivalent organizational documents of
each Company Subsidiary, each as in full force and effect as of the date hereof.
4.4 Capitalization. The authorized capital stock of the Company
consists of 10,000,000 shares of Company Common Stock and 1,000,000 shares of
preferred stock, par value $0.001 per share ("Company Preferred Stock"). As of
the date hereof, (a) 2,711,393 shares of Company Common Stock are issued and
outstanding, all of which are validly issued, fully paid and nonassessable, (b)
1,358,247 shares of Company Common Stock are held in the treasury of the
Company, (c) no shares of Company Common Stock are held by the Company
Subsidiaries, and (d) 449,650 shares of Company Common Stock are reserved for
future issuance pursuant to the exercise of outstanding Company Options. As of
the date hereof, no shares of Company Preferred Stock are issued and
outstanding. Except as set forth in this Section 4.4 or as set forth in Section
4.4 of the Company Disclosure Schedule, there are no options, warrants or other
rights, agreements, arrangements or commitments of any character relating to the
issued or unissued capital stock of the Company or any Company Subsidiary or
obligating the Company or any Company Subsidiary to issue or sell any shares of
capital stock of, or other equity interests in, the Company or any Company
Subsidiary. Each outstanding share of capital stock of each Company Subsidiary
is duly authorized, validly issued, fully paid and nonassessable. In no event
will the aggregate number of shares of Company Common Stock outstanding at the
Effective Time (including all shares subject to then outstanding Company Options
or other rights to acquire or commitments to issue shares of Company Common
Stock) exceed 4,519,290.
4.5 Consents and Approvals. Subject to (i) compliance with any
applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), state takeover or securities laws, and the rules of any stock
exchange or any other listing organization that are applicable to the Company,
(ii) approval by the Company's stockholders, (iii) the filing and recordation of
the Certificate of Merger as required by the DGCL, (iv) compliance with Section
262 of the DGCL regarding appraisal rights of the Company's stockholders, and
(v) any items disclosed on the Company Disclosure Schedule, the execution and
delivery of this Agreement by the Company and the consummation of the
transactions contemplated hereby will not: (a) violate any provision of the
Certificate of Incorporation or By-Laws of the Company or any Company
Subsidiary; (b) violate any statute, rule, regulation, order, or decree of any
federal, state, local, or foreign body or authority by which the Company or any
Company Subsidiary or any of their respective properties or assets may be bound;
(c) require any filing with or permit, consent, or approval of any federal,
state, local, or foreign administrative, governmental or regulatory body or
authority (a "Governmental Entity"); or (d) result in any violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default under, result in the loss of any material benefit under, or give rise to
any right of termination, cancellation, increased payments, or acceleration
under, or result in the creation of any lien, charge, security interest, pledge
or encumbrance of any kind or nature (any of the foregoing being a "Lien") on
any of the properties or assets of the Company or any Company Subsidiary under,
any of the terms, conditions, or provisions of any note, bond, mortgage,
indenture, license, franchise, permit, authorization,
12
agreement, or other instrument or obligation to which the Company or any Company
Subsidiary is a party, or by which it or any of its properties or assets may be
bound, except, (x) in the cases of clauses (b) or (c), where such violation,
failure to make any such filing or failure to obtain such permit, consent or
approval, could not reasonably be expected to have, individually or in the
aggregate, a Company Material Adverse Effect, and (y) in the case of clause (d),
for any such violations, breaches, defaults, or other occurrences that could not
reasonably be expected to have, individually or in the aggregate, a Company
Material Adverse Effect.
4.6 Company Action
(a) The Special Committee, at a meeting duly called and
held, has (i) determined that this Agreement, the Merger and the other
transactions contemplated by this Agreement are fair to and in the best
interests of the Company, (ii) recommended that the Board of Directors of the
Company approve and adopt this Agreement, the Merger and the other transactions
contemplated by this Agreement, and (iii) recommended that the Company's
stockholders approve and adopt this Agreement, the Merger and the other
transactions contemplated by this Agreement.
(b) The Board of Directors of the Company, at a meeting
duly called and held or by action by written consent, has (i) declared the
advisability of this Agreement, (ii) determined that this Agreement, the Merger
and the other transactions contemplated by this Agreement are fair to and in the
best interests of the Company and approved this Agreement, the Merger and the
other transactions contemplated by this Agreement, (iii) recommended that the
Company's stockholders approve and adopt this Agreement, the Merger and the
other transactions contemplated by this Agreement, and (iv) duly and validly
authorized this Agreement, the execution and delivery of this Agreement, the
performance by the Company of its obligations hereunder and, subject to the
approval and adoption of this Agreement by the stockholders of the Company, the
consummation of the Merger.
4.7 State Takeover Laws. The approval of this Agreement and the
transactions contemplated hereby by the Company's Board of Directors and the
Special Committee are sufficient so that neither the restrictions on "business
combinations" set forth in Section 203(a) of DGCL nor the provisions of any
other "fair price," "moratorium," "control share acquisition," or other similar
anti-takeover statute or regulation nor the provisions of any applicable
anti-takeover provisions in the Certificate of Incorporation or By-Laws of the
Company will apply to this Agreement or any of the transactions contemplated by
this Agreement.
4.8 Vote Required. Except for the vote required to satisfy the
condition set forth in Section 7.1(a), and except for any vote required under
applicable law, the current Certificate of Incorporation of the Company or the
rules of any stock exchange or other listing organization that are applicable to
the Company, the affirmative vote of the holders of a majority of the shares of
Company Common Stock outstanding and entitled to vote thereon on the record date
established by the Board of Directors of the Company in accordance with the
By-Laws of the Company, applicable law and this Agreement is the only vote of
the holders of any class or series of capital stock of the Company necessary to
adopt this Agreement and approve the Merger.
13
4.9 Fairness Opinion. The Special Committee has received a written
opinion from Xxxx Xxxxx, Inc., financial advisor to the Special Committee, dated
as of the date hereof, to the effect that, subject to the qualifications and
limitations stated therein, the Merger Consideration to be received by the
holders of shares of the Company Common Stock in the Merger (other than Mergerco
or any of the Affiliated Stockholders) as provided herein is fair to such
holders from a financial point of view.
4.10 No Finders. Except for the engagement letter between the
Special Committee and Xxxx Xxxxx, Inc., dated August 21, 2003, a copy of
which has been provided to Mergerco prior to the date of this Agreement, no act
of the Company or any Company Subsidiary has given or will give rise to any
claim against any of the parties hereto for a brokerage commission, finder's
fee, or other like payment in connection with the transactions contemplated
herein.
4.11 Proxy Statement. The information supplied by the Company
included in the Proxy Statement (as defined below) and the Schedule 13E-3 (as
defined below) will not, at (i) the time the Proxy Statement and the Schedule
13E-3 is filed with the Securities and Exchange Commission (the "SEC"); (ii) the
time the Proxy Statement (or any amendment thereof or supplement thereto) is
first mailed to the stockholders of the Company, (iii) the time of the Company
Stockholders' Meeting (as defined below) and (iv) the Effective Time, contain
any untrue statement of a material fact or fail to state any material fact
required to be stated therein, in light of the circumstances under which they
were made, or necessary in order to make the statements therein not misleading,
except that no representation or warranty is made by the Company with respect to
statements made in or incorporated by reference therein based on information
supplied by or on behalf of Mergerco specifically for inclusion or incorporation
by reference therein.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF MERGERCO
Except as set forth in the disclosure schedule delivered by Mergerco to
the Company prior to execution of this Agreement, which identifies by section
number the provision of this Agreement to which such exception or qualification
relates, Mergerco represents and warrants to the Company as of the date hereof
as follows:
5.1 Organization and Qualification. Mergerco is a corporation duly
organized, validly existing, and in good standing under the laws of the State of
Delaware 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.
Mergerco is duly qualified and in good standing to do business in each
jurisdiction in which the property owned, leased, or operated by it or the
nature of the business conducted by it makes such qualification necessary.
5.2 Authorization. Mergerco has the requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
by Mergerco and the consummation of the transactions contemplated hereby have
been duly and validly authorized and approved by the
14
Board of Directors of Mergerco and by the stockholders of Mergerco, and no other
corporate proceedings on the part of Mergerco are necessary to authorize this
Agreement or to consummate the transactions contemplated hereby. This Agreement
has been duly and validly executed and delivered by Mergerco and constitutes the
valid and binding obligation of Mergerco, enforceable against it in accordance
with its terms, subject to laws of general application relating to bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting
creditors' rights generally and rules of law governing specific performance,
injunctive relief, or other equitable remedies.
5.3 Consents and Approvals. Subject to (i) compliance with any
applicable requirements of the Securities Act, the Exchange Act and state
takeover and securities laws, (ii) the filing and recordation of the Certificate
of Merger as required by the DGCL, and (iii) compliance with Section 262 of the
DGCL regarding appraisal rights of the Company's stockholders, the execution and
delivery of this Agreement by Mergerco and the consummation of the transactions
contemplated hereby will not: (a) violate any provision of the Articles or
Certificate of Incorporation or By-Laws of Mergerco; (b) violate any statute,
rule, regulation, order, or decree of any federal, state, local or foreign body
or authority by which Mergerco or any of its properties or assets may be bound;
(c) require any filing with or permit, consent, or approval of any Governmental
Entity; or (d) require any consent under or result in a violation or breach of,
or constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, cancellation or acceleration of the
performance required thereunder) under any of the terms, conditions or
provisions of any contract, agreement, instrument or any obligation to which
Mergerco is a party or by which any of its properties or assets is bound.
5.4 No Finders. No act of Mergerco has given or will give rise to
any claim against any of the parties hereto for a brokerage commission, finder's
fee, or other like payment in connection with the transactions contemplated
herein.
5.5 Proxy Statement. The information supplied by or on behalf of
Mergerco included in the Schedule 13E-3 or for inclusion in the Proxy Statement
will not, at (i) the time the Proxy Statement and the Schedule 13E-3 is filed
with the SEC; (ii) the time the Proxy Statement (or any amendment thereof or
supplement thereto) is first mailed to the stockholders of the Company, (iii)
the time of the Company Stockholders' Meeting and (iv) the Effective Time,
contain any untrue statement of a material fact or fail to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading.
5.6 No Other Assets or Liabilities. Mergerco was formed on
December 31, 2003. Mergerco has no assets or liabilities as of the date of this
Agreement other than the initial capital contributed to Mergerco by the
Affiliated Stockholders and its obligations related to the transactions
contemplated by this Agreement. Mergerco has no subsidiaries.
5.7 Certificate of Incorporation and By-Laws. Mergerco has
heretofore furnished or made available to the Company a complete and correct
copy of the Certificate of Incorporation and By-Laws of Mergerco.
15
ARTICLE 6
COVENANTS
6.1 Conduct of Business of the Company. Except as contemplated by
this Agreement, during the period from the date of this Agreement to the
Effective Time or the earlier termination of this Agreement, neither the Company
nor any Company Subsidiary will, without the prior written consent of Mergerco:
(a) amend or otherwise change its Certificate of
Incorporation or By-laws or other organizational documents;
(b) except as set forth in Section 6.1(b) of the Company
Disclosure Schedule, issue, sell or grant, or authorize the issuance, sale or
grant of any shares of capital stock of any class of the Company or any Company
Subsidiary, or any options, warrants, convertible securities or other rights of
any kind to acquire any shares of such capital stock, or any other ownership
interest (including, without limitation, any phantom interest), of the Company
or any Company Subsidiary (except for the issuance of shares of Company Common
Stock pursuant to the exercise of Company Options outstanding on the date of
this Agreement);
(c) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect to any
of its capital stock, other than dividends and distributions by a Company
Subsidiary to its parent in accordance with applicable law;
(d) reclassify, combine, split, subdivide or redeem,
purchase or otherwise acquire, directly or indirectly, any of its capital stock;
(e) take, or agree to commit to take, or fail to take any
action that would make any representation, warranty, covenant or agreement of
the Company contained herein inaccurate or breached such that the conditions in
Section 7.2 will not be satisfied at, or as of any time prior to, the Effective
Time; or
(f) enter into, or publicly announce an intention to
enter into, any contract, agreement, commitment, plan or arrangement to, or
otherwise agree or consent to do any of the foregoing actions set forth in this
Section 6.1.
6.2 Conduct of Business of Mergerco. From the date of this
Agreement to the Effective Time, Mergerco will not take, or agree to commit to
take, or fail to take any action that would make any representation, warranty,
covenant or agreement of Mergerco contained herein inaccurate or breached such
that the conditions in Section 7.3 will not be satisfied at, or as of any time
prior to, the Effective Time.
6.3 No Solicitation
(a) Subject to the provisions of this Section 6.3, the
Company will not, and will cause its Company Subsidiaries and its and their
officers, directors, employees, financial advisors, counsel, representatives and
agents (collectively, "Representatives") not to, (i) directly or indirectly,
solicit, initiate, knowingly encourage or otherwise facilitate the making of an
Acquisition Proposal (as defined below), (ii) engage in or knowingly encourage
in any way
16
negotiations or discussions concerning, or provide any non-public information
to, any Third Party (as defined below) relating to an Acquisition Proposal, or
which may reasonably be expected to lead to an Acquisition Proposal, or (iii)
agree to, recommend or endorse any Acquisition Proposal; provided, however, that
nothing contained in this Section 6.3 or in any other provision of this
Agreement will prohibit the Company or the Company's Board of Directors or the
Special Committee from taking and disclosing to the Company's stockholders a
position with respect to a tender or exchange offer by a third party pursuant to
Rules 14d-9 and 14e-2(a) promulgated under the Exchange Act or from making any
disclosures to the Company's stockholders, which in the good faith judgment of
the board of directors of the Company or the Special Committee, after taking
into advice from outside counsel, is required under applicable law.
(b) Notwithstanding the provisions of Section 6.3(a),
this Agreement will not prohibit the Company's Board of Directors or the Special
Committee from, prior to the date on which the Company's stockholders adopt this
Agreement in accordance with the DGCL, furnishing nonpublic information to, or
entering into discussions or negotiations with, any Third Party that makes a
bona fide Superior Proposal that did not result from the Company's violation of
Section 6.3(a), if, and only to the extent that, (i) the Special Committee
determines in good faith, after consultation with its legal counsel, that
failure to furnish such information or to participate in such negotiations or
discussions with respect to a Superior Proposal would be a breach of the
fiduciary duties of the Board of Directors of the Company or the Special
Committee to the Company's stockholders imposed by applicable law; (ii) prior to
first furnishing nonpublic information to, or first entering into substantive
discussions and negotiations with, such Third Party after the date hereof, the
Company (A) provides written notice of at least two Business Days to Mergerco to
the effect that it intends to furnish information to, or enter into discussions
or negotiations with, such Third Party (which notice includes copies of any
written materials received by the Company in connection with such proposal,
discussion, negotiation or inquiry), and naming and identifying the Third Party
making the Acquisition Proposal, and (B) receives from such Third Party an
executed confidentiality agreement with customary terms and conditions; and
(iii) the Company promptly informs Mergerco of the status and the material terms
and conditions and all other material information with respect to any such
discussions or negotiations (including any amendments or proposed amendments).
(c) As used in this Agreement, the term "Acquisition
Proposal" means any offer or proposal for (i) a transaction or series of related
transactions pursuant to which any person (or "group" of persons as such term is
defined under Section 13(d) of the Exchange Act) other than Mergerco (a "Third
Party") acquires 10% or more of the outstanding shares of Company Common Stock
or voting power (or of securities or rights convertible into or exercisable for
such shares of Company Common Stock or voting power), including without
limitation a tender offer or an exchange offer which, if consummated, would
result in a Third Party acquiring 10% or more of the outstanding shares of
Company Common Stock or voting power (or of securities or rights convertible
into or exercisable for such shares of Company Common Stock or voting power),
(ii) a merger or other business combination involving the Company other than the
transactions contemplated by this Agreement, or (iii) any other transaction
pursuant to which any Third Party would acquire control of assets (including for
this
17
purpose the outstanding equity securities of any Company Subsidiary) of 10% or
more of the net revenues or assets of the Company.
(d) As used in this Agreement, a "Superior Proposal"
means any unsolicited, bona fide offer made by a Third Party to acquire all of
the outstanding shares of Company Common Stock beneficially owned by
stockholders of the Company or to acquire substantially all of the assets of the
Company on terms that the Special Committee has reasonably and in good faith
determined, after consultation with its financial advisors and outside counsel,
to be more favorable to the Company's stockholders (other than Mergerco or any
of the Affiliated Stockholders) than the Merger, taking into account all
relevant factors (including whether, in the good faith judgment of the Special
Committee, such Third Party is able to finance the transaction and obtain all
required regulatory approvals).
(e) Upon execution of this Agreement, the Company will
immediately terminate all discussions with Third Parties, if any, concerning any
Acquisition Proposal and will request that such Third Parties promptly return
any confidential information furnished by the Company in connection with any
Acquisition Proposal. The Company will not waive any provision of any
confidentiality, standstill or similar agreement entered into with any Third
Party regarding any Acquisition Proposal and prior to the Closing will enforce
all such agreements in accordance with their terms. Notwithstanding the
foregoing, such discussions may be reinstated or waivers may be provided if the
conditions of this Section 6.3 are otherwise satisfied.
(f) Nothing contained in this Section 6.3 will (i) permit
the Company to terminate this Agreement (except as specifically provided in
Article 8 hereof), or (ii) permit the Company to enter into any agreement
providing for an Acquisition Proposal (other than the confidentiality agreement
as provided and in the circumstances and under the conditions set forth above)
for as long as this Agreement remains in effect.
6.4 Company Stockholders Meeting
(a) The Company will take all action necessary in
accordance with the DGCL and the Company's Certificate of Incorporation and
By-laws to cause a meeting of its stockholders (the "Company Stockholders'
Meeting") to be duly called and held to consider and vote upon the approval and
adoption of this Agreement and the Merger, and the Company will use its
commercially reasonable efforts to hold the Company Stockholders' Meeting as
soon as practicable after the date of this Agreement. The Board of Directors of
the Company, based upon the recommendation of the Special Committee, will,
subject to Section 6.4(b), recommend such approval and adoption of this
Agreement and the Merger by the Company's stockholders as provided herein and
will use its commercially reasonable efforts to solicit such approval,
including, without limitation, timely mailing the Proxy Statement, unless the
Special Committee determines in good faith, after consultation with its legal
counsel, that such recommendation or solicitation would be a breach of the
Company's Board of Directors' or the Special Committee's fiduciary duties to the
Company's stockholders imposed by applicable law.
(b) Neither the Board of Directors of the Company nor the
Special Committee will withdraw, modify or change in a manner adverse to
Mergerco, its recommendation to the Company's stockholders unless the Board of
Directors of the Company or the Special
18
Committee has received a Superior Proposal and (i) the Company has complied with
the terms of Section 6.3 in all material respects, including, without
limitation, the requirement in Section 6.3 that it notify Mergerco after its
receipt of such Superior Proposal, and (ii) the Special Committee determines in
good faith, after consultation with its legal counsel, that such withdrawal or
modification is required under applicable law in order for the Board of
Directors of the Company and the Special Committee to comply with their
fiduciary duties to the Company's stockholders. Any withdrawal, change or
modification of the recommendation of the Company's Board of Directors or the
Special Committee in accordance with the previous sentence will not constitute a
breach of the Company's representations, warranties, covenants or agreements
contained in this Agreement. Unless this Agreement is previously terminated in
accordance with Article 8, the Company will submit this Agreement to its
stockholders at the Company Stockholders' Meeting in accordance with Section
6.4(a) even if the Board of Directors of the Company or the Special Committee
has withdrawn, modified or changed its recommendation of this Agreement or the
transactions contemplated by this Agreement and will not postpone or adjourn
such meeting or the vote by the Company's stockholders upon this Agreement and
the Merger to another date without Mergerco's approval.
6.5 Proxy Statement and Schedule 13E-3
(a) As promptly as practicable after the execution of
this Agreement, the Company and Mergerco will cooperate to prepare a Rule 13E-3
Transaction Statement (together with any amendments thereto, the "Schedule
13E-3") and the Company will prepare and file with the SEC a proxy statement
(together with any amendments thereto, the "Proxy Statement") relating to the
Company Stockholders' Meeting. Mergerco and the Company will cooperate with each
other in the preparation of the Proxy Statement. Both Mergerco and the Company
will cause the Schedule 13E-3 to comply as to form in all material respects with
the applicable provisions of the Exchange Act and the rules and regulations
thereunder, the rules and regulations of any stock exchange or other listing
organization that may be applicable and the DGCL. The Company will cause the
Proxy Statement to comply as to form in all material respects with the
applicable provisions of the Exchange Act and the rules and regulations
thereunder, the rules and regulations of any stock exchange or other listing
organization that may be applicable and the DGCL. Both the Company and Mergerco
will furnish to each other all information concerning the Company or Mergerco
each may reasonably request in connection with such actions and the preparation
of the Schedule 13E-3 and the Proxy Statement. Mergerco will be given a
reasonable opportunity to review and comment on all filings by the Company with
the SEC in connection with the transactions contemplated hereby, including the
Proxy Statement and any amendment or supplement thereto, and all mailings to the
Company's stockholders in connection with the transaction contemplated by this
Agreement. The Company will be given a reasonable opportunity to review and
comment on all filings by Mergerco with the SEC in connection with the
transactions contemplated hereby, including the Schedule 13E-3 and any amendment
or supplement thereto. The Company, with the cooperation of Mergerco, will use
its commercially reasonable efforts to cause the Proxy Statement to be mailed to
each of the Company's stockholders as promptly as practicable after the
compliance with SEC filing requirements and, if necessary, satisfactory
resolution of SEC comments. The Company will also promptly as practicable file,
and, if required, mail to the Company's stockholders, any amendment to the Proxy
Statement which may become necessary after the date the Proxy Statement is first
mailed to the Company's stockholders. The Company and Mergerco will also
19
promptly as practicable file any amendment to the Schedule 13E-3 which may
become necessary after the date the Schedule 13E-3 is first filed with the SEC.
(b) No amendment or supplement to the Proxy Statement or
the Schedule 13E-3 will be made by the Company without the approval of Mergerco,
which approval will not be unreasonably withheld, conditioned or delayed. The
Company will advise Mergerco promptly after it receives notice thereof of any
request by the SEC or any stock exchange or other listing organization that may
be applicable for amendment of the Proxy Statement or the Schedule 13E-3 or
comments thereon and responses thereto or requests by the SEC for additional
information.
(c) The Proxy Statement will include the recommendation
of the Board of Directors of the Company to the stockholders of the Company that
they vote in favor of the adoption of this Agreement and the Merger, except as
otherwise provided in Section 6.3 or 6.4 of this Agreement.
(d) If at any time prior to the Effective Time any event
or circumstances relating to the Company or any of the Company Subsidiaries, or
their respective officers and directors (other than Xxxxxxx Xxxx, Xxxx X. Xxxxxx
and Xxxxxx X. Xxxxx), should be discovered by the Company that should be set
forth in an amendment or a supplement to the Proxy Statement or the Schedule
13E-3, the Company will promptly inform Mergerco. All documents that the Company
is responsible for filing with the SEC in connection with the transactions
contemplated hereby will comply as to form in all material respects with the
applicable requirements of the DGCL, the Securities Act and the Exchange Act.
(e) If at any time prior to the Effective Time any event
or circumstance relating to Mergerco or its officers and directors should be
discovered by Mergerco that should be set forth in an amendment or a supplement
to the Schedule 13E-3 or the Proxy Statement, Mergerco will promptly inform the
Company. All documents that Mergerco is responsible for filing with the SEC in
connection with the transactions contemplated hereby will comply as to form in
all material respects with the applicable requirements of the DGCL, the
Securities Act and the Exchange Act.
6.6 Access to Information. Except as required pursuant to any
confidentiality agreement or similar agreement or arrangement to which the
Company or any of the Company Subsidiaries is a party (in which case the Company
will use all commercially reasonable efforts to provide acceptable alternative
arrangements, not in violation of such agreement or arrangement, for disclosure
to Mergerco or its advisors) or pursuant to applicable law, the Company will
afford to Mergerco and to Mergerco's accountants, officers, directors,
employees, counsel, and other representatives reasonable access during normal
business hours upon reasonable prior notice, from the date hereof through the
Effective Time, to all of its properties, books, data, contracts, commitments,
and records, and, during such period, the Company will furnish promptly to
Mergerco all information concerning the Company's and the Company Subsidiaries'
businesses, prospects, properties, liabilities, results of operations, financial
condition, officers, employees, consultants, distributors, customers, suppliers,
and others having dealings with the Company as Mergerco may reasonably request.
20
6.7 Approvals and Consents; Cooperation. Upon the terms and
subject to the conditions set forth in this Agreement, each of the parties
agrees to cooperate with each other and to use all commercially reasonable
efforts to promptly take, or cause to be taken, all actions, and to do, or cause
to be done, and to assist and cooperate with the other parties in doing, all
things necessary, proper or advisable to consummate and make effective, in the
most expeditious manner practicable, the Merger and the other transactions
contemplated by this Agreement, including, without limitation, (i) the obtaining
of all necessary actions or nonactions, waivers, consents and approvals from
Governmental Entities and the making of all necessary registrations, submissions
of information, applications and filings (including filings with Governmental
Entities) and the taking of all reasonable steps as may be necessary to obtain
an approval or waiver from, or to avoid an action or proceeding by, any
Governmental Entity, (ii) the obtaining and maintenance of all necessary
consents, approvals, permits, authorizations and other confirmations or waivers
from third parties, (iii) the defending of any lawsuits or other legal
proceedings, whether judicial or administrative, investigating or challenging
this Agreement or the consummation of any of the transactions contemplated by
this Agreement, including seeking to have any stay or temporary restraining
order entered by any court or other Governmental Entity vacated or reversed and
(iv) the execution and delivery of any additional instruments necessary to
consummate the transactions contemplated by, and to fully carry out the purposes
of, this Agreement.
6.8 Take-over Statutes; Inconsistent Actions. If any "fair price,"
"moratorium," "control share," "business combination," "shareholder protection"
or similar or other anti-takeover statute or regulation enacted under any state
or Federal law becomes applicable to the Merger or any of the other transactions
contemplated hereby, the Company, the Special Committee and the Board of
Directors of the Company will grant such approvals and take all such actions as
are within its authority and are reasonable so that the Merger and the other
transactions contemplated hereby and thereby may be consummated as promptly as
practicable on the terms contemplated hereby and thereby and otherwise use all
commercially reasonable efforts to eliminate the effects of such statute or
regulation on the Merger and the transactions contemplated hereby and thereby.
The Company has not and, during the term of this Agreement will not, adopt,
effect or implement any "shareholders' rights plan," "poison pill" or similar
arrangement.
6.9 Financing. Mergerco and the Company will use commercially
reasonable efforts to (i) consummate such financing as Mergerco may deem
necessary and appropriate in order to finance the Merger (the "Financing") on or
before the Closing Date, and (ii) execute and deliver definitive agreements with
respect to the Financing as may be deemed necessary and appropriate by Mergerco
(the "Definitive Financing Agreements") on or before the Closing Date. The
Company will use its commercially reasonable efforts to assist and cooperate
with Mergerco to satisfy on or before the Closing Date all of the conditions to
closing the transactions constituting the Financing that are applicable to the
Company.
6.10 Expenses. Whether or not the Merger is consummated, all costs
and expenses incurred in connection with this Agreement and the transactions
contemplated hereby will be paid by the party incurring such costs and expenses,
subject to Section 8.3.
21
6.11 Further Actions. Subject to the terms and conditions herein
provided and without being required to waive any conditions herein (whether
absolute, discretionary, or otherwise), each of the parties hereto agrees to use
all 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 to
consummate and make effective the transactions contemplated by this Agreement.
In case at any time after the Effective Time any further action is necessary or
desirable to carry out the purposes of this Agreement, the proper officers and
directors of each party to this Agreement will take all such necessary action.
6.12 Officers' and Directors' Indemnification
(a) The Company and the Surviving Corporation agree that
all rights to indemnification and all limitations on liability existing in favor
of any individual who on or at any time prior to the Effective Time was a
director, officer, employee or agent of the Company (an "Indemnified Person") in
respect of acts or omissions of such Indemnified Person on or prior to the
Effective Time (including, without limitation, acts or omissions in connection
with the transactions contemplated by this Agreement), as provided in the
Certificate of Incorporation or By-Laws of the Company or any agreement between
an Indemnified Person and the Company in effect as of the date of this
Agreement, will continue in full force and effect in accordance with its terms
and will not be amended, repealed or otherwise modified after the Effective Time
in any manner that would adversely affect the rights thereunder of the
individuals who on or at any time prior to the Effective Time was a director,
officer, employee or agent of the Company, and the Surviving Corporation will
honor all such indemnification provisions.
(b) The Surviving Corporation will, at its election,
either: (i) cause to be maintained in effect the Company's current directors'
and officers' liability insurance policy with respect to claims arising from
facts or events that occurred at or prior to the Effective Time (including,
without limitation, facts or events that occurred in connection with the
transactions contemplated by this Agreement); (ii) extend the discovery or
reporting period under the Company's current policy for six years from the
Effective Time to maintain in effect directors' and officers' liability
insurance with respect to claims arising from facts or events that occurred at
or prior to the Effective Time (including, without limitation, facts or events
that occurred in connection with the transactions contemplated by this
Agreement) for those persons who are currently covered by the Company's
directors' and officers' liability insurance policy on terms no less favorable
than the terms of such current insurance policy; or (iii) substitute coverage
under other policies providing coverage on terms and conditions that are no less
advantageous to such persons than the Company's current insurance with respect
to claims arising from facts or events that occurred at or prior to the
Effective Time (including, without limitation, facts or events that occurred in
connection with the transactions contemplated by this Agreement); provided,
however, that in no event will the Surviving Corporation be required to expend
for any such coverage an amount per year in excess of 150% of the annual premium
currently paid by the Company for such insurance or replacement insurance or to
expend for an extended period reporting endorsement a total amount in excess of
300% of the annualized cost of the Company's current policy.
(c) In the event that the Surviving Corporation or any of
its successors or assigns (i) consolidates with or merges into any other person
or entity and is not the continuing
22
or surviving corporation or entity of such consolidation or merger or (ii)
transfers or conveys all or substantially all of its properties and assets to
any person or entity, then, and in each such case, proper provision will be made
so that the successors and assigns of the Surviving Corporation assume the
obligations set forth in this Section 6.12.
(d) The provisions of this Section 6.12 are intended to
be for the benefit of, and will be enforceable by, each Indemnified Person and
his or her heirs and representatives and are in addition to, and not in
substitution for, any other rights to indemnification or contribution that any
such person may have by contract or otherwise.
6.13 Notification of Certain Matters. The Company will give prompt
written notice to Mergerco, and Mergerco will give prompt written notice to the
Company, of (a) the occurrence, or nonoccurrence, of any event the occurrence,
or nonoccurrence, of which would be likely to cause any representation or
warranty contained herein to be untrue or inaccurate in any material respect at
or prior to the Effective Date and (b) any material failure of the Company or
Mergerco, as the case may be, to comply with or satisfy any covenant, condition
or agreement to be complied with or satisfied by it hereunder; provided,
however, that the delivery of any notice pursuant to this Section 6.13 will not
limit or otherwise affect the remedies available hereunder to the party
receiving such notice.
6.14 Payment of Fees for Special Committee and Advisors. At the
Closing, the Company will pay in full all amounts owed to the members of the
Special Committee and their legal and financial advisors in connection with the
Merger, provided that such amounts are provided for pursuant to the terms and
conditions of the agreements entered into with such members and advisors.
ARTICLE 7
CLOSING CONDITIONS
7.1 Conditions to Obligations of Mergerco and the Company. The
respective obligations of each party to consummate the Merger and to consummate
the other transactions contemplated by this Agreement to occur on the Closing
Date will be subject to the satisfaction at or prior to the Closing Date of the
following conditions, any or all of which may be waived by the party for whose
benefit such conditions exist, in whole or in part, to the extent permitted by
applicable law:
(a) This Agreement, the Merger and the transactions
contemplated hereby will have been approved by the affirmative vote of the
holders of at least a majority of the outstanding shares of Company Common Stock
in accordance with the Company's Certificate of Incorporation, By-Laws and the
DGCL.
(b) No Governmental Entity or court of competent
jurisdiction will have enacted, issued, promulgated, enforced or entered any
law, rule, regulation or order which is then in effect and has the effect of
making the Merger illegal or otherwise prohibiting consummation of the Merger.
23
(c) All consents, approvals, authorizations legally
required to be obtained to consummate the Merger will have been obtained from
all Governmental Entities or persons as applicable and will be final (in the
case of any consent or waiver from a Governmental Entity) and in full force and
effect as of the Closing, except for such consents, approvals and authorizations
the failure of which to obtain could not reasonably be expected to have a
Company Material Adverse Effect.
(d) The fairness opinion of Xxxx Xxxxx, Inc. referred to
in Section 4.9 shall not have been withdrawn, revoked, terminated or modified at
or prior to the Effective Time.
7.2 Conditions to Obligations of Mergerco. The obligation of
Mergerco to consummate the Merger will be subject to the fulfillment or waiver
by Mergerco at or prior to the Closing of the following additional conditions:
(a) Each representation and warranty of the Company
contained in this Agreement shall be true and correct on the date hereof and as
of the Closing Date as though such representations and warranties were made on
such date (except those representations and warranties that address matters only
as of a particular date will remain true and correct as of such date), except
for any inaccuracies that have not had, and could not reasonably be expected to
have, individually or in the aggregate, a Company Material Adverse Effect;
provided, however, that, notwithstanding the foregoing, this Section 7.2(a) will
not be considered fulfilled or satisfied if the representation and warranty set
forth in the last sentence of Section 4.4 is incorrect by more than 1,000 shares
as of the Closing Date. For purposes of this Section 7.2(a), all representations
and warranties contained in Article 4 qualified by "Company Material Adverse
Effect" or reference to "material" or "in all material respects" or like
variations will not be deemed so qualified.
(b) The Company shall have performed and complied in all
material respects with all agreements, covenants and conditions required by this
Agreement to be performed or complied with by it on or prior to the Closing
Date.
(c) The Company shall have obtained all permits,
authorizations, consents, and approvals required on its part to perform its
obligations under, and consummate the transactions contemplated by, this
Agreement, in form and substance satisfactory to Mergerco, except for such
permits, authorizations, consents and approvals the failure of which to obtain
could not reasonably be expected to have, individually or in the aggregate, a
Company Material Adverse Effect, and Mergerco will have received evidence
reasonably satisfactory to it of the receipt of such permits, authorizations,
consents, and approvals.
(d) Since the date of this Agreement, there will not have
occurred or come into existence any change, event, occurrence, state of facts or
development that has had, or could reasonably be expected to have, individually
or in the aggregate, a Company Material Adverse Effect.
(e) The Company shall have delivered to Mergerco duly
adopted resolutions of the Board of Directors of the Company approving the
execution, delivery and performance of this Agreement, and resolutions of the
stockholders of the Company in accordance with the
24
Company's Certificate of Incorporation, By-laws and the DGCL pursuant to which
the vote of at least a majority of the outstanding shares of Company Common
Stock was obtained in each case certified by the Secretary or Assistant
Secretary of the Company.
(f) The funding under the Definitive Financing Agreements
shall have occurred or Mergerco will otherwise have immediate access to
sufficient funds under any other commitment acceptable to Mergerco to enable
Mergerco to pay the aggregate Merger Consideration, to pay any cash amounts
payable to the holders of Company Options pursuant to Section 3.5 and Section
3.6, to pay the anticipated fees and expenses related to the Merger and to
perform any other obligations under this Agreement.
(g) Holders of no more than 5% of the outstanding Company
Common Stock shall have exercised appraisal rights.
(h) Mergerco shall have received a certificate signed by
an appropriate officer of the Company, dated the Closing Date, to the effect
that, to the best of such officer's knowledge, the conditions set forth in
sections 7.2 (a), (b), (c), (d), (e) and (g) have been satisfied.
7.3 Conditions to Obligations of the Company. The obligation of
the Company to consummate the Merger will be subject to the fulfillment or
waiver by the Company at or prior to the Closing of the following additional
conditions:
(a) Each representation and warranty of Mergerco
contained in this Agreement shall be true and correct in all material respects
on the date of this Agreement and as of the Closing Date as though such
representations and warranties were made on such date (except those
representations and warranties that address matters only as of a particular date
will remain true and correct as of such date).
(b) Mergerco shall have performed and complied in all
material respects with all agreements, covenants and conditions required by this
Agreement to be performed or complied with by Mergerco on or prior to the
Closing Date.
(c) The Company shall have received a certificate signed
by an appropriate officer of Mergerco, dated the Closing Date, to the effect
that, to the best of such officer's knowledge, the conditions set forth in
sections 7.3 (a) and (b) have been satisfied.
ARTICLE 8
TERMINATION AND ABANDONMENT
8.1 Termination. This Agreement may be terminated and the Merger
and the other transactions contemplated hereby may be abandoned at any time
prior to the Effective Time, whether before or after approval by the
stockholders of the Company as provided in Section 7.1(a), only:
(a) by mutual written consent duly authorized by the
Board of Directors of Mergerco and the Special Committee of the Company;
25
(b) by either Mergerco or the Company (acting through the
Special Committee) if the Merger has not been consummated on or before April 30,
2004; provided, however, that the party wishing to terminate under this Section
8.1(b) has not breached in any material respect its obligations under this
Agreement in any manner that was the proximate cause of, or resulted in, the
failure to consummate the Merger by such date;
(c) by either Mergerco or the Company (acting through the
Special Committee) if a court of competent jurisdiction or an administrative,
governmental, or regulatory authority has issued a final nonappealable order,
decree, or ruling, or taken any other action, having the effect of permanently
restraining, enjoining, or otherwise prohibiting the Merger;
(d) by either Mergerco or the Company (acting through the
Special Committee) if, at the Company Stockholders' Meeting, the requisite vote
of the Company's stockholders for approval and adoption of this Agreement and
the Merger is not obtained as contemplated by Section 7.1(a), except that the
right to terminate this Agreement under this Section 8.1(d) will not be
available to any party whose failure to perform any obligation under this
Agreement has been the proximate cause of, or resulted in, the failure to obtain
the requisite vote of the stockholders of the Company;
(e) by Mergerco if (i) the Company has breached its
obligations under Section 6.3 in any material respect, or (ii) the Board of
Directors of the Company or the Special Committee has recommended to the
stockholders of the Company any Acquisition Proposal or will have resolved or
announced an intention to do so, or (iii) the Board of Directors of the Company
or the Special Committee has withdrawn or modified in a manner adverse to
Mergerco its approval or recommendation of the Merger, or (iv) a tender offer or
exchange offer for 10% or more of the outstanding shares of Company Common Stock
is announced or commenced, and either (A) the Board of Directors of the Company
or the Special Committee recommends acceptance of such tender offer or exchange
offer by the Company's stockholders or (B) within 10 Business Days after such
tender offer or exchange offer is so commenced, the Board of Directors of the
Company or the Special Committee fails to recommend against acceptance of such
tender offer or exchange offer by the Company's stockholders;
(f) by Mergerco if (i) Mergerco is not in material breach
of its obligations under this Agreement and (ii) there has been a material
breach by the Company of any of its representations, warranties or obligations
under this Agreement such that the conditions in Section 7.2 hereof will not be
satisfied; provided, however, that if such a breach is curable by the Company
and such cure is reasonably likely to be accomplished prior to the applicable
date specified in Section 8.1(b), then, for so long as the Company continues to
exercise commercially reasonable efforts to accomplish such cure, Mergerco may
not terminate this Agreement under this Section 8.1(f);
(g) by the Company (acting through the Special Committee)
if (i) the Company is not in material breach of its obligations under this
Agreement and (ii) there has been a material breach by Mergerco of any of its
representations, warranties or obligations under this Agreement such that the
conditions in Section 7.3 hereof will not be satisfied provided, however, that
if such a breach is curable by Mergerco and such cure is reasonably likely to be
accomplished prior to the applicable date specified in Section 8.1(b), then, for
so long as
26
Mergerco continues to exercise commercially reasonable efforts to accomplish
such cure, the Company may not terminate this Agreement under this Section
8.1(g);
(h) by the Company (acting through the Special Committee)
if, prior to approval of the Merger by the Company's stockholders as
contemplated in Section 7.1(a) and as a result of a Superior Proposal, the
Special Committee determines, in its good faith judgment based as to legal
matters on the advice of legal counsel and as to financial matters on
consultation with its financial advisor, that the failure to terminate this
Agreement and accept such Superior Proposal would be a breach of the fiduciary
duties of the Company's Board of Directors or the Special Committee; provided,
however, that before the Company may terminate this Agreement pursuant to this
Section 8.1(h), the Company must give notice to Mergerco of the proposed
termination under Section 8.1(h) and Mergerco, within five (5) days of receipt
of such notice, will have the right, in its sole discretion, to offer to amend
this Agreement to make an offer that is at least as favorable to the
stockholders of the Company as the Superior Proposal and the Company will
negotiate in good faith with Mergerco with respect to such proposed amendment;
provided, further, that if Mergerco and the Company are unable to reach an
agreement with respect to the Mergerco's proposed amendment within such five (5)
day-period, the Company may terminate this Agreement pursuant to this Section
8.1(h);
(i) by Mergerco if holders of more than 5% of the
outstanding Company Common Stock exercise appraisal rights; or
(j) by Mergerco if there has occurred or come into
existence a change, event, occurrence, state of facts or development that has
had, or could reasonably be expected to have, individually or in the aggregate,
a Company Material Adverse Effect.
8.2 Effect of Termination. The party desiring to terminate this
Agreement will give written notice of such termination to the other party.
Except for any material breach of this Agreement by any party hereto (which
breach and liability therefore will not be affected by the termination of this
Agreement or the payment of any Reimbursable Expenses (as defined in Section 8.3
hereof)), if this Agreement is terminated pursuant to Section 8.1 hereof, this
Agreement will become void and of no effect with no liability on the part of any
party hereto; provided, however, that notwithstanding such termination the
agreements contained in Sections 8.2, 8.3, 8.4 and Article 9 hereof will survive
the termination hereof.
8.3 Expense Reimbursement
(a) The Company agrees to reimburse Mergerco, in
immediately available funds by wire transfer to an account designated by
Mergerco, an amount equal to Mergerco's out-of-pocket costs and expenses (which
are reasonably documented) that are reasonably incurred in connection with this
Agreement, the Merger and the transactions contemplated hereby (including
without limitation, all reasonable legal, accounting and financial advisory fees
and expenses incurred by Mergerco) (collectively, the "Reimbursable Expenses")
if:
(i) this Agreement is terminated by Mergerco
pursuant to Section 8.1(c), 8.1(e), 8.1(f), 8.1(i) or 8.1(j) hereof; or
27
(ii) this Agreement is terminated by Mergerco or
the Company pursuant to Section 8.1(b) hereof; or
(iii) this Agreement is terminated by the Company
pursuant to Section 8.1(h) hereof.
(b) The Company will pay the Reimbursable Expenses
required to be paid pursuant to Section 8.3(a) hereof (if all conditions thereto
have been satisfied) (i) on the date of termination of this Agreement by the
Company, (ii) not later than five Business Days after termination of this
Agreement by Mergerco.
8.4 No Penalty; Costs of Collection. The Company acknowledges that
the agreements contained in Section 8.3 are an integral part of the transactions
contemplated by this Agreement and are not a penalty, and that, without these
agreements, Mergerco would not enter into this Agreement. If the Company fails
to pay promptly any amounts due pursuant to Section 8.3, the Company will also
pay Mergerco's reasonable costs and expenses (including legal fees and expenses)
in connection with any action, including the filing of any lawsuit or other
legal action, taken to collect payment, together with interest on the amount of
the unpaid fee under Section 8.3, accruing from its due date, at an interest
rate per annum equal to two percentage points in excess of the prime commercial
lending rate quoted by the Wall Street Journal. Any change in the interest rate
hereunder resulting from a change in such prime rate will be effective at the
beginning of the date of such change in such prime rate.
ARTICLE 9
GENERAL PROVISIONS
9.1 Non-Survival of Representations, Warranties and Covenants. The
representations, warranties, covenants and agreements contained in this
Agreement and in any certificate delivered pursuant to this Agreement by any
person will terminate at the Effective Time or upon the termination of this
Agreement pursuant to Section 8.1, as the case may be, except that this Section
9.1 will not limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time or after termination of this
Agreement, including those contained in Sections 6.6, 6.11, 6.12, 8.2, 8.3, 8.4
and Article 9.
9.2 Amendment and Modification. This Agreement may be amended by
the parties hereto by action taken by or on behalf of the Special Committee of
the Company and the Board of Directors of Mergerco at any time prior to the
Effective Time; provided, however, that, after the adoption of this Agreement by
the stockholders of the Company as provided herein, no amendment may be made
which would reduce the amount or change the type of consideration to be received
by the stockholders of the Company pursuant to the Merger or otherwise adversely
affect the rights of the Company's stockholders. This Agreement may not be
amended except by an instrument in writing signed by the parties hereto.
9.3 Waiver. Except as otherwise provided herein, at any time prior
to the Effective Time, any party hereto may (a) extend the time for the
performance of any obligation or other act
28
of any other party hereto, (b) waive any inaccuracy in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any agreement or condition contained herein. Any such
extension or waiver will be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
9.4 Notices. All notices and other communications hereunder will
be in writing and will be deemed given (a) on the date of delivery if delivered
personally, or upon confirmation of receipt if delivered by telecopy, facsimile
or email, (b) on the first Business Day following the date of dispatch if
delivered by a recognized next-day courier service, or (c) on the fifth Business
Day following the date of mailing if delivered by registered or certified mail,
return receipt requested, postage prepaid. All notices hereunder must be
delivered as set forth below, or pursuant to instructions as may be designated
in writing by the party to receive such notice:
(a) If to the Company, to:
Xxxx Bros. Transportation Inc
0000 Xxxxxxx 00
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
The Special Committee of the Board of Directors of
the Company
Attn: Xxxxxxx X. Xxxxxxxxx
00000 Xxxxxxxx Xxxxxxxxxx Xxxx.
Xxxxxxxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
and:
LeBoeuf, Lamb, Xxxxxx & XxxXxx, L.L.P.
00 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxxxxx, Xxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to Mergerco, to:
BBT Acquisition Corporation
0000 Xxxxxxx 00
Xxxxxxx, Xxxxxxx 00000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx Xxxxx Xxxx & White LLP
One Federal Place
29
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx III
Facsimile: (000) 000-0000
9.5 Assignment. This Agreement and all of the provisions hereof
will be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns, but neither this Agreement nor any
of the rights, interests, or obligations hereunder will be assigned by any of
the parties hereto without the prior written consent of the other parties, nor
is this Agreement intended to confer upon any other person except the parties
hereto any rights or remedies hereunder, except that Article 3 and Section 6.12
of this Agreement will inure to the benefit of the persons identified therein.
9.6 Governing Law. This Agreement will be construed in accordance
with and governed by the law of the State of Delaware (without giving effect to
choice of law principles thereof).
9.7 Knowledge. As used in this Agreement or the instruments,
certificates or other documents required hereunder, the term "knowledge" of an
entity will mean knowledge actually possessed by any director or executive
officer of such entity.
9.8 Interpretation. The words "hereof," "herein" and "hereunder"
and words of similar import when used in this Agreement will refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section references are to this Agreement unless otherwise specified. Whenever
the words "include," "includes" or "including" are used in this Agreement, they
will be deemed to be followed by the words "without limitation." The table of
contents, article and section headings contained in this Agreement are inserted
for reference purposes only and will not affect the meaning or interpretation of
this Agreement. This Agreement will be construed without regard to any
presumption or other rule requiring the resolution of any ambiguity regarding
the interpretation or construction hereof against the party causing this
Agreement to be drafted.
9.9 Publicity. Upon execution of this Agreement by Mergerco and
the Company, the parties will jointly issue a press release, as agreed upon by
them. The parties intend that all future statements or communications to the
public or press regarding this Agreement or the Merger will be mutually agreed
upon by them and neither party will, without such mutual agreement or the prior
consent of the other, issue any statement or communication to the public or to
the press regarding this Agreement, or any of the terms, conditions, or other
matters with respect to this Agreement, except as required by law or the rules
of any stock exchange or other listing organization that may be applicable and
then only (a) upon the advice of such party's legal counsel; (b) to the extent
required by law or the rules of any stock exchange or other listing organization
that may be applicable; and (c) following prior notice to the other party and an
opportunity for the other party to discuss with the disclosing party (which
notice will include a copy of the proposed statement or communication to be
issued to the press or public). The foregoing will not restrict Mergerco's or
the Company's communications with their respective employees or customers in the
ordinary course of business.
30
9.10 Entire Agreement. This Agreement, including the exhibits and
schedules hereto and the Company Disclosure Schedule referred to herein,
embodies the entire agreement and understanding of the parties hereto in respect
of the subject matter contained herein and supersede all prior agreements and
the understandings between the parties with respect to such subject matter. No
discussions regarding or exchange of drafts or comments in connection with the
transactions contemplated herein will constitute an agreement among the parties
hereto. Any agreement among the parties will exist only when the parties have
fully executed and delivered this Agreement.
9.11 Severability. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other terms and provisions of this Agreement will nevertheless
remain in full force and effect so long as the economics or legal substance of
the transactions contemplated hereby are not affected in any manner materially
adverse to any party. Upon determination that any term or other provision hereof
is invalid, illegal or incapable of being enforced, the parties hereto will
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in an acceptable manner to the end that the transactions
contemplated hereby are fulfilled to the extent possible.
9.12 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties further agree that each party will
be entitled to an injunction or restraining order to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court of the United States or any state having jurisdiction, this being in
addition to any other right or remedy to which such party may be entitled under
this Agreement, at law or in equity.
9.13 Counterparts. This Agreement may be executed in two or more
counterparts, each of which will be deemed an original, and all of which
together will constitute one and the same instrument.
31
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
XXXX BROS. TRANSPORTATION INC.
/s/ Xxxx X. Xxxxxx
-----------------------------------------
Xxxx X. Xxxxxx
President and Chief Executive Officer
BBT ACQUISITION CORPORATION
/s/ Xxxx X. Xxxxxx
----------------------------------------
Xxxx X. Xxxxxx
President
32
EXHIBIT A
To Merger Agreement
AFFILIATED STOCKHOLDERS
Stockholders Shares
------------ ------
Xxxxxxx Xxxx 753,216
Xxxxxxx X. Xxxx 384,000
Xxxx X. Xxxxxx 407,400
Xxxxxx X. Xxxxx 389,900