Agreement and Plan of Merger
This Agreement and Plan of Merger (the "Agreement") is reached between The
Xxxxxxx Career Satisfaction Corporation, a Utah corporation ("Purchaser"), and
G.S.F. Inc., a Utah corporation (the "Company"). In consideration of the
representations, warranties, agreements and conditions herein contained, and
intending to be legally bound, Purchaser and the Company hereby agree as
follows:
Article I. The Offer
1.01 The Offer
On June 30, 2000, Purchaser shall tender to the shareholders of the
Company an offer to purchase all outstanding shares of common stock (the
"Shares"), of the Company, in exchange for shares of the Purchaser, at the ratio
of 2,781.1 shares of the Purchaser for each 1 share of the Company (the
"Offer"). If all Company shareholders accept this offer for all their Shares,
the Purchaser will issue 2,781,100 shares for 1,000 Company Shares.
1.02 Company Actions
The Company hereby approves of and consents to the Offer and represents
that its Board, at a meeting duly called and held, has in light of and subject
to the terms and conditions set forth herein, (i) determined that this Agreement
and the transactions contemplated hereby, including the Offer and the merger
taken together, are in the best interests of the stockholders of the Company,
(ii) approved this Agreement and the transactions contemplated hereby, including
the Offer and the Merger, and that such approval constitutes approval for
purposes of the Utah Revised Business Corporation Act (the "URBCA") (iii)
resolved to recommend that the stockholders of the Company accept the Offer,
tender their Shares thereunder to Purchaser and, if required by applicable law,
approve and adopt this Agreement and the Merger.
Article II. The Merger
2.01 Merger
At the Effective Time (as defined below), upon the terms and subject to
the conditions hereof, and in accordance with the provisions of the URBCA and
the Articles of Incorporation and By-Laws of the Purchaser, the Company shall be
merged with and into the Purchaser (the "Merger"). Following the Merger, the
Purchaser shall continue as the surviving corporation (the "Surviving
Corporation") and shall continue its existence under the laws of the State of
Utah , and the separate corporate existence of the Company shall cease.
2.02 Stockholders' Meeting
If approval by the Company's stockholders is required by applicable law in
order to consummate the Merger, the Company, acting through its Board of
Directors, shall in accordance with applicable law, its Articles of
Incorporation and By-Laws, duly call, give notice of, convene and hold a special
meeting (the "Special Meeting") of its stockholders as soon as practicable
following the expiration of the Offer for the purpose of considering and taking
action upon this Agreement. At the Special Meeting, all of the Shares
beneficially owned by the Company or its affiliates shall be voted in favor of
approval and adoption of this Agreement and the transactions contemplated
hereby.
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2.03 Consummation of the Merger
As soon as practicable, the parties hereto will cause duly executed
Articles of Merger, (the "Articles of Merger"), to be filed with the Utah
Division of Corporations Commercial Code (the "Division") and the parties hereto
shall take all such other and further actions as may be required by law to make
the Merger effective. The Merger shall become effective on the date on which the
Merger Certificate has been duly filed with the Division (the "Effective Time").
2.04 Effects of the Merger
The Merger shall have the effects set forth in the URBCA. Without limiting
the generality of the foregoing, and subject thereto, at the Effective Time, all
the properties, rights, privileges, powers and franchises of the Company and
Purchaser shall vest in the Surviving Corporation, and all debts, liabilities
and duties of the Company and Purchaser shall become the debts, liabilities and
duties of the Surviving Corporation.
2.05 Articles of Incorporation and By-Laws
The Articles of Incorporation and the By-Laws of Purchaser in effect at
the Effective Time shall be the Articles of Incorporation and By-Laws of the
Surviving Corporation until amended in accordance with applicable law.
2.06 Directors and Officers
The directors and officers of Purchaser at the Effective Time shall be the
directors and officers of the Surviving Corporation and the officers and
directors of the Company at the Effective Time shall be discharged.
Article III. Representations and Warranties of the Company
The Company represents and warrants to Purchaser as follows:
3.01 Organization and Qualification
The Company is a corporation duly organized, validly existing and in good
standing under the laws of its jurisdiction of incorporation, has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted and is duly qualified to do
business as a foreign corporation and in good standing in each jurisdiction in
which the character of its properties or the nature of its business makes such
qualification necessary, except where the failure to be so organized, existing,
qualified or in good standing or have such power and authority would not have a
Material Adverse Effect.
3.02 Capitalization
The authorized capital stock of the Company consists of 50,000 Shares. All
of the outstanding Shares have been duly authorized and validly issued and are
fully paid and nonassessable and free of preemptive rights. As of June 30, 2000,
(i) 1,000 Shares were issued and outstanding, (ii) no Shares were held in the
Company's treasury. There are no outstanding obligations of the Company or any
of its subsidiaries to repurchase, redeem or otherwise acquire any Shares.
3.03 Authority Relative to this Agreement
(a) The Company has all requisite corporate power and authority to
execute and deliver this Agreement and, subject to the terms and
conditions hereof, to consummate the transactions
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contemplated hereby (provided that the Merger is subject to the
provisions of this Agreement and to the applicable provisions of the
URBCA regarding any requisite approval by the stockholders of the
Company).
(b) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of the Company and no other
corporate proceedings on the part of the Company are necessary to
authorize this Agreement or to consummate the transactions so
contemplated (other than the merger, which is subject to the
approval of the stockholders of the Company and to the applicable
provisions of the Corporate Code).
(c) This Agreement has been duly and validly executed and delivered by
the Company and, assuming this Agreement constitutes a valid and
binding obligation of Purchaser, this Agreement constitutes a valid
and binding agreement of the Company, enforceable against the
Company in accordance with its terms, except that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights and the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
3.04 Consents and Approvals; No Violation
Neither the execution and delivery of this Agreement by the Company nor
the consummation by the Company of the transactions contemplated hereby will:
(a) subject to the obtaining of any requisite approval of the Company's
stockholders, conflict with any provision of the Articles of
Incorporation or By-Laws of the Company;
(b) require any consent, approval, authorization or permit of, or filing
with or notification to, any United States federal or state
governmental or regulatory authority, except (i) pursuant to state
laws relating to takeovers and state securities laws, (ii) the
filing of the Articles of Merger pursuant to the URBCA, or (iii)
where the failures to obtain such consents, approvals,
authorizations or permits, or to make such filings or notifications,
would not in the aggregate have a Material Adverse Effect; or
(c) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to the Company, except for violations which,
in the aggregate, would not have a Material Adverse Effect.
3.05 Brokerage Fees and Commissions
No person or entity is entitled to receive from the Company any investment
banking, brokerage or finder's fee in connection with this Agreement or the
transactions contemplated hereby based upon arrangements made by or on behalf of
the Company.
3.06 Assets
The Company's assets are held by the Company free and clear of all liens
and encumbrances, and there is no litigation pending or threatened against the
Company or its assets.
3.07 Reliance on Own Tax Advisors
The Company and its affiliates have sought and obtained counsel from their
own advisors respecting the tax consequences of this transaction, and are not
relying upon any tax-related statements by Purchaser or any understanding of how
the Purchaser will treat this transaction on its own books, records, and tax
returns.
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Article IV. Representations and Warranties of Purchaser
Purchaser represents and warrants to the Company as follows:
4.01 Organization
The Purchaser is a corporation duly organized, validly existing and in
good standing under the laws of Utah and has the requisite corporate power to
carry on its business as it is now being conducted except where the failure to
be so organized, existing and in good standing or to have such power and
authority would not in the aggregate have a material adverse effect on the
results of operations, properties or financial condition of Purchaser and its
subsidiaries taken as a whole or on the ability of Purchaser to fully perform
their obligations hereunder. Purchaser has heretofore made available to the
Company an accurate and complete copy of its respective certificate of
incorporation and by-laws, as currently in effect.
4.02 Authority Relative to This Agreement
(a) Purchaser has all requisite corporate power and authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby.
(b) The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly
authorized by the respective Boards of Directors of Purchaser, and
no other corporate proceedings on the part of Purchaser are
necessary to authorize this Agreement, to commence the Offer or to
consummate the transactions contemplated by this Agreement
(including the Offer).
(c) This Agreement has been duly and validly executed and delivered by
Purchaser and, assuming this Agreement constitutes a valid and
binding obligation of the Company, this Agreement constitutes a
valid and binding agreement of Purchaser, enforceable against
Purchaser in accordance with its terms, except that such enforcement
may be subject to bankruptcy, insolvency, reorganization, moratorium
or other similar laws now or hereafter in effect relating to
creditors' rights and the remedy of specific performance and
injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which
any proceeding therefor may be brought.
4.03 Consent and Approvals; No Violation
Neither the execution and delivery of this Agreement by Purchaser nor the
consummation by Purchaser of the transactions contemplated hereby will:
(a) conflict with any provision of the respective Articles of
Incorporation or By-Laws (or other similar governing documents) of
Purchaser;
(b) require any consent, approval, authorization or permit of, or filing
with or notification to, any United States federal or state
governmental or regulatory authority, except (i) pursuant to state
laws relating to takeovers and state securities laws, if any are
applicable, (ii) the filing of the Articles of Merger pursuant to
the URBCA, or (iii) where the failures to obtain such consents,
approvals, authorizations or permits, or to make such filings or
notifications, would not in the aggregate have any material adverse
effect on the results of operations, properties or financial
condition of Purchaser and its subsidiaries taken as a whole or on
the ability of Purchaser to fully perform their obligations
hereunder;
(c) result in a default (or give rise to any right of termination,
cancellation or acceleration) under any of the terms, conditions or
provisions of any note, lease, mortgage, license, agreement or other
instrument or obligations to which Purchaser or any of its
subsidiaries is a party or by which Purchaser or any of its
subsidiaries or any of their respective assets may be bound, ex-
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cept for such defaults (or rights of termination, cancellation or
acceleration) as to which requisite waivers or consents have been
obtained or which, in the aggregate, would not have any material
adverse effect on the financial condition, business or results of
operations of Purchaser and its subsidiaries taken as a whole or on
the ability of Purchaser to fully perform its obligations
thereunder; or
(d) violate any order, writ, injunction, decree, statute, rule or
regulation applicable to Purchaser or any of its subsidiaries,
except for violations which would not have in the aggregate any
material adverse effect on the financial condition, business or
results of operations of Purchaser and its subsidiaries taken as a
whole or on the ability of Purchaser to fully perform their
obligations hereunder.
Article V. Covenants
5.01 Conduct of Business of the Company
Except as contemplated by this Agreement or as disclosed in writing to
Purchaser on or prior to the date hereof, during the period from the date of
this Agreement to the Effective Time, the Company shall in all material respects
conduct its operations according to its ordinary and usual course of business
and consistent with past practice and the Company shall use reasonable efforts
to preserve intact in all material respects the business organization of the
Company, keep available the services of its current officers and key employees,
and preserve in all material respects the good will of those having advantageous
business relationships with it, provided that the Company shall not be required
to make any payments or enter into or amend any contractual arrangements or
understandings to satisfy the foregoing obligations. Without limiting the
generality of the foregoing, and except as contemplated by this Agreement or as
disclosed in writing to Purchaser on or prior to the date hereof, prior to the
Effective Time, neither the Company nor any of its subsidiaries, as the case may
be, will, without the prior written consent of Purchaser:
(a) issue, sell or pledge, or authorize or propose the issuance, sale or
pledge of, additional shares of its capital stock or securities
convertible into any such shares, or any rights, warrants or options
to acquire any such shares or other convertible securities;
(b) purchase or otherwise acquire, or propose to purchase or otherwise
acquire, any of its outstanding securities;
(c) declare or pay any dividend or distribution on the Shares;
(d) subject to the fiduciary duties of the Board of Directors of the
Company and except pursuant to agreements or arrangements in effect
on the date hereof, purchase, sell or otherwise dispose of or
encumber (or enter into any agreement to so purchase, sell or
otherwise dispose of or encumber) material properties or material
assets except in the ordinary course of business;
(e) subject to the rights of the stockholders of the Company under
applicable law, adopt any amendments to the Articles of
Incorporation or By-Laws of the Company which will (i) increase the
compensation of any of its directors, officers or key employees,
except in the ordinary course of business and consistent with past
practice or pursuant to the terms of agreements or plans currently
in effect in amounts material to the Company taken as a whole; (ii)
pay or agree to pay any pension, retirement allowance or other
employee benefit not required or permitted by any existing plan,
agreement or arrangement to any director, officer or key employee in
amounts material to the Company taken as a whole; (iii) commit the
Company (other than pursuant to any collective bargaining agreement)
to any additional pension, profit-sharing, bonus, extra
compensation, incentive, deferred compensation, stock purchase,
stock option, stock appreciation right, group insurance, severance
pay, retirement or other employee benefit plan, agreement or
arrangement, or to any employment or consulting agreement with or
for the bene-
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3
fit of any director, officer or key employee, whether past or
present in amounts material to the Company taken as a whole; or
(f) except as required by applicable law, amend in any material respect
any such plan, agreement or arrangement; or except in the ordinary
course of business and consistent with past practice, (i) incur any
material amount of long-term indebtedness for borrowed money or
issue any material amount of debt securities or assume, guarantee or
endorse the obligations of any other; (ii) make any material loans,
advances or capital contributions to, or investments in, any other
person; (iii) pledge or otherwise encumber shares of capital stock
of the Company, or (iv) mortgage or pledge any of its material
assets, tangible or intangible, or create or suffer to exist any
material line thereupon.
5.02 Acquisition Proposals
To the extent that the Board of Directors of the Company determines to do
so in the exercise of their fiduciary duties, the Company is entitled to, and is
entitled to cause its directors, officers, employees, representatives and agents
to, solicit or initiate inquiries with respect to the making of proposals by,
engage in discussions or negotiations with, and provide confidential information
to, any person relating to an acquisition, business combination or purchase of
all or any significant portion of the assets of, or any significant equity
interest in, the Company or any material subsidiary or division of the Company
(an "Acquisition Proposal"). However, the Company represents and agrees that as
of the date hereof it has ceased all prior activities, and has no present
intention to engage in activities, in each case of the type contemplated by the
immediately preceding sentence with respect to Acquisition Proposals (other than
with Purchaser or any affiliate of Purchaser or their respective directors,
officers, employees, representatives or agents). The Company will promptly
communicate to Purchaser the terms of any proposal or inquiry which it may
receive in respect of any Acquisition Proposal by any person (other than
Purchaser or any affiliate of Purchaser or their respective directors, officers,
employees, representatives and agents).
5.03 Access to Information.
Between the date of this Agreement and the Effective time, the Company
will (i) give Purchaser and its authorized representatives reasonable access,
during regular business hours upon reasonable notice, to all of its facilities
and to all of its books and records, (ii) permit Purchaser to make such
reasonable inspections as it may be required, and (iii) cause its officers and
those of its subsidiaries to furnish Purchaser with such financial and operating
data and other information with respect to the business and properties of the
Company as Purchaser may from time to time reasonably request. Information
obtained by Purchaser pursuant to this Section shall be kept confidential.
5.04 Best Efforts
Subject to the fiduciary duties of the Board of Directors of the Company
under applicable law, each of the parties hereto agrees to use its best efforts
to take, or cause to be taken, all necessary or appropriate action, and to do,
or cause to be done, all things necessary, proper or advisable under applicable
laws and regulations or otherwise to consummate and make effective the
transactions contemplated by this Agreement including, without limitation, the
execution of any additional instruments necessary to consummate the transactions
contemplated hereby and seeking to lift or reverse any legal restraint imposed
on the consummation of 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 hereto shall take all such necessary action.
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Article VI. Conditions to Consummation of Merger
6.01 Conditions to Each Party's Obligation to Effect the Merger
The respective obligations of each party to effect the Merger are subject
to the satisfaction or waiver, at or prior to the Effective Time, of the
following conditions:
(a) this Agreement shall have been approved and adopted by the
affirmative vote of the stockholders of the Company to the extent
required by applicable law and the Articles of Incorporation of the
Company;
(b) no statute, rule, regulation, decree, order or injunction shall have
been promulgated, enacted, entered or enforced by any United States
federal or state government, governmental agency or authority or
court which remains in effect and prohibits, restrains, enjoins or
restricts the consummation of the Merger.
6.02 Conditions to Obligations of Purchaser to Effect the Merger
The obligation of Purchaser to effect the Merger are further subject to
the satisfaction, at or prior to the Effective Time, of the condition that the
Company shall have performed in all material respects each of its material
obligations under this Agreement required to be performed by it at or prior to
the Effective Time pursuant to the terms hereof.
Article VII. Termination; Amendment; Waiver
7.01 Termination
This Agreement may be terminated and the merger may be abandoned at any
time notwithstanding approval thereof by the stockholders of the Company, but
prior to the Effective Time:
(a) by mutual written consent duly authorized by the Boards of Directors
of the Company and the Purchaser;
(b) by Purchaser or the Company if, prior to the purchaser of Shares
pursuant to the Offer, (i) the Effective Time shall not have
occurred on or before July 4, 2000.
(c) by the Company if Purchaser shall have (i) failed to commence the
Offer within 5 business days following the date of this Agreement,
(ii) terminated the Offer or (iii) failed to pay for Shares pursuant
to the Offer within 45 days following the commencement of the Offer,
(iv) prior to the purchase of Shares pursuant to the Offer, the
Board in the exercise of its fiduciary duty shall have withdrawn or
modified in a manner adverse to Purchaser its approval or
recommendation of the Offer, this Agreement or the Merger.
7.02 Effect of Termination
In the event of the termination of this Agreement, this Agreement, except
for the provisions of sections related to confidentiality, indemnity, and fees
and expenses, shall forthwith become void and have no effect, without any
liability on the part of any party or its affiliates, directors, officers or
stockholders. Nothing shall relieve any party to this Agreement of liability for
breach of this Agreement on or prior to the date of termination.
7.03 Fees and Expenses
Each party shall bear its own expenses in connection with this Agreement
and the transactions contemplated hereby.
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7.04 Amendment
To the extent permitted by applicable law, this Agreement may be amended
by action taken by or on behalf of the respective Boards of Directors of the
Company or the Purchaser at any time before or after adoption of this Agreement
by the stockholders of the Company (if required by applicable law) but, after
any such stockholder approval, no amendment shall be made which decreases the
Merger Consideration or changes the form thereof or which adversely affects the
rights of the Company's stockholders hereunder without the approval of such
stockholders. This Agreement may not be amended except by an instrument in
writing signed on behalf of all the parties.
7.05 Extension; Waiver
At any time prior to the Effective Time, the parties hereto, by action
taken by or on behalf of the respective Boards of Directors of the Company,
Purchaser may (i) extend the time for the performance of any of the obligations
or other acts of the other parties hereto, (ii) waive any inaccuracies in the
representations and warranties of any other party contained herein or in any
document, certificate or writing delivered pursuant hereto by any other party,
or (iii) waive compliance with any of the agreements or conditions contained
herein. Any agreement on the part of any party to any such extension or waiver
shall be valid only if set forth in an instrument in writing signed on behalf of
such party. The failure of any party to assert any of its rights hereunder shall
not constituent a waiver of such rights.
Article VIII. Miscellaneous
8.01 Entire Agreement; Assignment
This Agreement (i) constitutes the entire agreement among the parties with
respect to the subject matter hereof and supersedes all other prior agreements
and understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof, and (ii) shall not be assigned by
operation of law or otherwise, provided that Purchaser may assign any of their
rights and obligations to any wholly owned, director or indirect subsidiary of
Purchaser, but no such assignment shall relieve Purchaser of its obligations
hereunder. It is understood and agreed that either Purchaser, or any wholly
owned, direct or indirect subsidiary of Purchaser, may purchase Shares under the
Offer.
8.02 Enforcement of the Agreement
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. It is accordingly agreed
that the parties and other persons entitled to enforce this Agreement shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any federal or
state court located in Utah, this being in addition to any other remedy to which
they are entitled at law or in equity.
8.03 Validity
If any provision of this Agreement, or the application thereof to any
person or circumstance, is held invalid or unenforceable, the remainder of this
Agreement, and the application of such provision to other persons or
circumstances, shall not be affected thereby, and to such end, the provisions of
this Agreement are agreed to be severable.
8.04 Notices
All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given (and shall be deemed to have been duly
given upon receipt) by delivery in person, by ca-
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ble, telegram, telex or telecopies, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties as follows:
If to Purchaser:
XX Xxxxxx, CEO
The Xxxxxxx Group
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxx Xxxx Xxxx, Xxxx 00000
If to the Company:
000 Xxxxx 000 Xxxx
Xxxx, Xxxx 00000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above
(provided that notice of any change of address shall be effective only upon
receipt thereof).
8.05 Governing Law
This Agreement shall be governed by and construed in accordance with the
laws of Utah regardless of the laws that might otherwise govern under principles
of conflicts of laws applicable thereto.
8.06 Descriptive Headings
The descriptive headings herein are inserted for convenience of reference
only and are not intended to be part of or to affect the meaning or
interpretation of this Agreement.
8.07 Parties in Interest
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and nothing in this Agreement, express or implied, is
intended to confer upon any other person any rights or remedies of any nature
whatsoever under or by reasons of this Agreement.
8.08 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed to be an original, but all of which shall constitute one and the same
agreement.
8.09 Certain Definitions
As used in this Agreement:
(a) "affiliate" or associate" of a person shall have the meaning
ascribed thereto in Rule 12b-2 under the Exchange Act.
(b) "beneficial ownership" shall have the meaning as used in Rule 13d
under the Exchange Act.
(c) "group" shall have the meaning as used in Rule 13d-5(b) under the
Exchange Act.
(d) "person" means any individual, corporation, company, group,
partnership, association, governmental body or other entity.
(e) A "subsidiary" of an entity shall mean any corporation, a majority
of the outstanding voting securities of which are owned directly or
indirectly by such entity.
(f) "Material Adverse Effect" shall mean any change in or effect on the
business of the Company or any of its subsidiaries that is
materially adverse to the results of operations, properties or
xxxxx-
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cial condition of the Company taken as a whole, except for such
changes or effects resulting from, or in connection with (i) labor
relations between the Company, on the one hand, and their respective
employees or any unions, on the other hand, (including a strike or
other disruption in the operations of the Company or its
subsidiaries which shall not be regarded as a "material adverse
effect") or (ii) general economic, industry-wide or financial
markets.
In Witness Whereof, each of the parties has caused this Agreement to be
executed on its behalf by its officers thereunto duly authorized on the 30th day
of June, 2000.
The Purchaser The Company
/s/_______________________________ /s/___________________________________
Xxxxx Xxxxxxx, Authorized Officer Xxxxx X. Xxxxx, President - Director
The Xxxxxxx Group Career
Satisfaction Corporation
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