Treatment of Capital Stock. Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of any Stockholder: (a) each share of the common stock, no par value per share, of MFAC (the "MFAC Common Stock") issued and outstanding immediately prior to the Effective Time shall be unchanged and shall remain issued and outstanding and owned beneficially and of record by MCSC; and (b) subject to Sections 2.5, 2.6 and 2.7 hereof, all of the issued and outstanding shares of the common stock, $1.00 par value per share of TBS (the "TBS Common Stock") issued and outstanding immediately prior to the Effective Time shall be exchanged for cash or a promissory note (the "Cash Portion") in the amount of six hundred ninety-one thousand dollars ($691,000.00) and 210,000 shares (the "New MCSC Shares") of common stock, no par value per share, of MCSC (the "MCSC Common Stock" or the "Stock Portion") (the Cash Portion set forth AGREEMENT AND PLAN OF REORGANIZATION PAGE 7 above and the Stock Portion being collectively referred to herein as the "Purchase Price"). (i) The Stockholders shall be entitled to receive additional consideration (the "Deferred Purchase Price") based on the pre-tax income (as determined by MCSC's independent auditors pursuant to generally accepted accounting principles ("GAAP")) earned by MFAC during the thirty-three (33) full calendar months immediately subsequent to the Closing Date (if the Closing Date is within any month, the first month (the first day of which shall be deemed the "Deferred Purchase Price Commencement Date") to be used to determine the Deferred Purchase Price shall be the next full month immediately following the month in which the Closing Date occurs), as follows: If MFAC's pre-tax The Stockholders income is: will receive: -------------- ---------------- Greater than $2,000,000 $500,000 But less than $2,500,000 Greater than $2,500,000 $1,350,000 But less than $2,800,000 Greater than $2,800,000 $1,770,000 But less than $3,300,000 Greater than $3,300,000 $2,000,000 But less than $4,000,000 Greater than $4,000,000 $2,500,000 (ii) For purposes of determining the Deferred Purchase Price, the pre-tax income of MFAC will be measured on the day which is the 990th day subsequent to the Deferred Purchase Price Commencement Date. The Deferred Purchase Price shall be paid by MCSC 55% in unregistered shares of MCSC Common Stock and 45% in cash. The number of shares of MCSC Common Stock to be paid by MCSC as the stock portion of the Deferred Purchase Price shall equal the quotient of the Deferred Purchase Price (as calculated in Section 2.3(c)(i), above), multiplied by .55 and then divided by the average per share closing price of the MCSC Common Stock as quoted by the Nasdaq National Market for the period of twenty (20) trading days immediately prior to the 990th day subsequent to the Deferred Purchase Price Commencement Date. If earned as set forth above, and confirmed by MCSC's independent auditors to MCSC in writing, MCSC shall pay to the Stockholders such Deferred Purchase Price by share issuance and by check on or before the 1,050th day subsequent to the Deferred Purchase Price Commencement Date. MCSC shall have the right to alter the structure of the proposed transaction for tax and other AGREEMENT AND PLAN OF REORGANIZATION PAGE 8 business reasons provided that no such change shall change the form or amount of the Purchase Price without the prior written consent of the Stockholders. (d) The New MCSC Shares to be received by the Stockholders of TBS will be subject to restrictions on transferability and resale for a period of 270 days after the Closing Date.
Appears in 2 contracts
Samples: Reorganization Agreement (Miami Computer Supply Corp), Agreement and Plan of Reorganization (Miami Computer Supply Corp)
Treatment of Capital Stock. Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of any Stockholderparty to this Agreement:
(a) each share of the common stock, no par value per share, of MFAC MTAC (the "MFAC MTAC Common Stock") issued and outstanding immediately prior to the Effective Time shall be unchanged and shall remain issued and outstanding and owned beneficially and of record by MCSC; and
(b) (i) subject to Sections 2.4, 2.5, 2.6 and 2.7 hereof, all of the issued and outstanding shares of the common stock, $1.00 par value per share of TBS CMS (the "TBS CMS Common Stock") issued and outstanding immediately prior to the Effective Time shall be exchanged for cancelled and become, by operation of law, the right to receive cash or a promissory note (the "Cash Portion") in the amount of ten million two hundred forty-six thousand five hundred ninety-one thousand dollars ($691,000.0010,246,500.00) and 210,000 a number of shares (the "New MCSC Shares") of common stock, no par value per share, of MCSC (the "MCSC Common Stock" or the "Stock Portion") determined as set forth in the next sentence (the Cash Portion set forth AGREEMENT AND PLAN OF REORGANIZATION PAGE 7 above cash and the Stock Portion New MCSC Shares being collectively referred to herein as the "Purchase Price").
(i) The Stockholders shall be entitled to receive additional consideration (the "Deferred Purchase Price") based on the pre-tax income (as determined by MCSC's independent auditors pursuant to generally accepted accounting principles ("GAAP")) earned by MFAC during the thirty-three (33) full calendar months immediately subsequent to the Closing Date (if the Closing Date is within any month, the first month (the first day of which shall be deemed the "Deferred Purchase Price Commencement Date") to be used to determine the Deferred Purchase Price shall be the next full month immediately following the month in which the Closing Date occurs), as follows: If MFAC's pre-tax The Stockholders income is: will receive: -------------- ---------------- Greater than $2,000,000 $500,000 But less than $2,500,000 Greater than $2,500,000 $1,350,000 But less than $2,800,000 Greater than $2,800,000 $1,770,000 But less than $3,300,000 Greater than $3,300,000 $2,000,000 But less than $4,000,000 Greater than $4,000,000 $2,500,000
(ii) For purposes of determining the Deferred Purchase Price, the pre-tax income of MFAC will be measured on the day which is the 990th day subsequent to the Deferred Purchase Price Commencement Date. The Deferred Purchase Price shall be paid by MCSC 55% in unregistered shares of MCSC Common Stock and 45% in cash. The number of shares of New MCSC Common Stock Shares to be paid issued hereunder shall be equal to the quotient of $10,453,500 divided by MCSC as the stock portion of the Deferred Purchase Price "x," where "x" shall equal the quotient of the Deferred Purchase Price (as calculated in Section 2.3(c)(i), above), multiplied by .55 and then divided by the average per share closing price of for the MCSC Common Stock as quoted reported by the Nasdaq National Stock Market System for the period of twenty (20) trading days immediately prior to either (Y) the 990th day subsequent before the Closing Date or (Z) May 8, 1998, at the option of the Stockholders (which option shall be selected in writing by the Stockholders and delivered to MCSC at least five (5) Business Days before the Closing Date) (the "ACP"). The consideration to be paid to Messrs. Xxxxxxx and Miles shall be 50% in cash and 50% in New MCSC Shares, while the consideration to be paid to Xx. Xxxxx shall be 100% in New MCSC Shares. This Purchase Price shall be utilized as of the Closing Date only if CMS has, as of the Closing Date, a minimum of $4.5 million in stockholders' equity as determined in accordance with generally accepted accounting principles ("GAAP") and confirmed in a writing delivered to MCSC and to the Deferred Purchase Price Commencement Date. If earned as set forth above, and confirmed Stockholders in a review by MCSC's independent auditors to MCSC in writingwithin sixty (60) days after the Closing Date (the "PW Confirmation"). If CMS's stockholders' equity is less than such minimum, MCSC shall pay to the Stockholders such Deferred Purchase Price by share issuance shall be decreased, dollar for dollar, for the difference between such minimum and by check on or before the 1,050th day subsequent to amount of CMS's stockholders' equity as of the Deferred Closing Date. Any increase in the Purchase Price Commencement Date. MCSC shall have result in the right to alter the structure of the proposed transaction for tax and other AGREEMENT AND PLAN OF REORGANIZATION PAGE 8 business reasons provided that no such change shall change the form or amount allocation of the Purchase Price without the prior written consent of the Stockholders.
(d) The between cash and New MCSC Shares so that 50% of such adjustment shall be made to the cash portion of the Purchase Price and 50% of such adjustment shall be received by made to the New MCSC Shares portion of the Purchase Price. The unadjusted Purchase Price shall be paid to the Stockholders at Closing pursuant to their instructions as set forth in Section 2.7(a) hereof. The Stockholders shall have the opportunity to review the PW Agreement and Plan of TBS will be subject to restrictions on transferability and resale Reorganization Page 7 Confirmation for a period of 270 thirty (30) days after receipt thereof (the "Review Period"). If the Stockholders do not deliver to MCSC a written objection, describing in detail the objection and the errors the Stockholders believe were made by Price Waterhouse in the PW Confirmation, signed by all Stockholders, within the Review Period, the PW Confirmation shall be final and binding. Within ten (10) Business Days of the receipt of a valid written objection, MCSC shall provide to the Stockholders a written notice of its intent to engage one of the firms of independent accountants named in said notice to review the PW Confirmation and the objection thereto. The Stockholders shall have three (3) Business Days from the date of receipt of this notice to notify MCSC of the accounting firm to which it will agree. Should the Stockholders fail to timely agree in writing to a particular accounting firm, MCSC shall be free to select any firm set forth in such notice. MCSC on the one hand, and the Stockholders (as a group) on the other hand, shall each be responsible for the full and timely payment of one-half of the fees and expenses of the accounting firm so engaged. The accounting firm shall be instructed to determine whether the PW Confirmation is reasonable pursuant to GAAP. If the accounting firm so finds, the PW Confirmation shall be final and binding. If the accounting firm finds that the PW Confirmation is not reasonable pursuant to GAAP, the accounting firm shall determine the amount of CMS's stockholders' equity in accordance with GAAP as of the Closing Date.. The accounting firm so engaged shall complete its work within ninety (90) days of its engagement. The accounting firm so engaged shall provide its results in writing to counsel for each Party. Any adjustment of the Purchase Price shall be paid by the appropriate Party to the other in cash within five (5) days after expiration of the Review Period or within five (5) days after receipt of the results of the accounting firm engaged to review the PW Confirmation; and
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Miami Computer Supply Corp)
Treatment of Capital Stock. Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of any Stockholder:
(a) each share of the common stock, no par value per share, of MFAC MTAC (the "MFAC MTAC Common Stock") issued and outstanding immediately prior to the Effective Time shall be unchanged and shall remain issued and outstanding and owned beneficially and of record by MCSC; and
(b) subject to Sections 2.5, 2.6 and 2.7 hereof, all of the issued and outstanding shares each share of the common stock, $1.00 par value per share of TBS BRITCO (the "TBS BRITCO Common Stock") issued and outstanding immediately prior to the Effective Time shall be exchanged for cash or a non-interest bearing promissory note note, which shall be substantially in the form of EXHIBIT F, attached hereto (the "Cash PortionPromissory Note") ), in the amount of six one million eight hundred ninety-one thousand dollars ($691,000.001,800,000.00) and 210,000 shares 183,333 (the "New MCSC Shares") ), shares of common stock, no par value per share, of MCSC (the "MCSC Common Stock" or the "Stock Portion") ), (the Cash Portion set forth AGREEMENT AND PLAN OF REORGANIZATION PAGE 7 above Promisory Note and the Stock Portion New MCSC Shares being collectively referred to herein as the "Purchase Price").
(i) The Stockholders shall be entitled to receive additional consideration (the "Deferred Purchase Price") based on the pre-tax income (as determined by MCSC's independent auditors pursuant to generally accepted accounting principles ("GAAP")) earned by MFAC during the thirty-three (33) full calendar months immediately subsequent to the Closing Date (if the Closing Date is within any month, the first month (the first day of which shall be deemed the "Deferred Purchase Price Commencement Date") to be used to determine the Deferred Purchase Price shall be the next full month immediately following the month in which the Closing Date occurs), as follows: . If MFAC's pre-tax The Stockholders income is: will receive: -------------- ---------------- Greater than $2,000,000 $500,000 But less than $2,500,000 Greater than $2,500,000 $1,350,000 But less than $2,800,000 Greater than $2,800,000 $1,770,000 But less than $3,300,000 Greater than $3,300,000 $2,000,000 But less than $4,000,000 Greater than $4,000,000 $2,500,000
(ii) For purposes of determining the Deferred Purchase Price, the pre-tax income of MFAC will be measured on the day which is the 990th day subsequent to the Deferred Purchase Price Commencement Date. The Deferred Purchase Price shall be paid by MCSC 55% in unregistered shares of MCSC Common Stock and 45% in cash. The number of shares of MCSC Common Stock to be paid by MCSC as the stock portion of the Deferred Purchase Price shall equal the quotient of the Deferred Purchase Price (as calculated in Section 2.3(c)(i), above), multiplied by .55 and then divided by the average per share closing price of the MCSC Common Stock Stock, as quoted by the Nasdaq National Market System, for the period of twenty (20) trading days immediately ending on the tenth (10th) day prior to the 990th day subsequent Closing Date (the "Average Closing Price") is less than $12.00 per share, MCSC will have the option to either: (A) consummate this Agreement and issue, in lieu of the Deferred New MCSC Shares, such number of shares of MCSC Common Stock as shall equal the quotient of $2,200,000.00 divided by the Average Closing Price, or (B) terminate this Agreement and pay to BRITCO the sum of fifty thousand dollars ($50,000.00) as liquidated damages. Upon the election of either option (A) or (B), above, MCSC must provide written notice of such election to BRITCO. In the event MCSC elects to terminate this Agreement and pay the liquidated damages under option (B), above, BRITCO will have the option, exercisable within ten (10) days after receipt of notice of MCSC's election to terminate, by written notice to MCSC within such period, to require that MCSC consummate the Agreement and pay the Purchase Price Commencement DatePrice. If earned as set forth aboveMCSC elects option (B), this Agreement is terminated pursuant to such election and confirmed by MCSC's independent auditors to MCSC in writingmakes such payment, MCSC shall pay will have no further obligation or liability to BRITCO, the Stockholders such Deferred Purchase Price by share issuance and by check on or before the 1,050th day subsequent to the Deferred Purchase Price Commencement Date. MCSC shall have the right to alter the structure any of the proposed transaction for tax and other AGREEMENT AND PLAN OF REORGANIZATION PAGE 8 business reasons provided that no such change shall change the form their associates, affiliates, successors, assigns, heirs or amount of the Purchase Price without the prior written consent of the Stockholdersrepresentatives in connection with this Agreement.
(dc) The New MCSC Shares to be received by the Stockholders of TBS BRITCO will be subject to restrictions on transferability and resale for a period of 270 days after the Closing Date.
(i) MCSC shall file one registration statement (the "Demand Registration") for all of the New MCSC Shares to be received by the Stockholders hereunder on or before the 271st day subsequent to the Closing Date (the "Registration Deadline"). Notwithstanding the foregoing, however, should MCSC file a registration statement prior to the Registration Deadline, whether for a sale of securities for its own account (except in situations relating to an employee benefit plan or an acquisition of another entity) or pursuant to a demand for registration by another party (a "Subsequent Registration Statement"), MCSC shall include, one time only, on a PARI PASSU basis with the other parties having shares registered, all of the New MCSC Shares (the "Piggyback Registration"). MCSC shall not be obligated to file a registration for the New MCSC Shares if counsel to MCSC renders an opinion to the effect that the registration is not required for the proposed transfer of the New MCSC Shares, or if the proposed transfer of New MCSC Shares is subject to an effective registration statement which is current under the Securities Act of 1933, as amended (the "Securities Act"). MCSC may delay the filing of the registration statement for the New MCSC Shares not more than 90 days if (A) MCSC has filed, or has taken substantial steps toward filing, a registration statement relating to the sale of any of MCSC's securities (the "MCSC Securities") in an underwritten offering and the managing underwriter is of the opinion that the filing of a registration statement with respect to the Demand or Piggyback Registration would adversely affect the offering by the MCSC of the MCSC Securities, or (B) the Board of Directors of MCSC determines in good faith, by resolution, that the filing of a registration statement, if not so deferred, would materially and adversely affect a then proposed or pending financial project, acquisition, merger or other corporate transaction. In the event that the Demand or Piggyback Registration is an underwritten offering, if the managing underwriter of such offering advises MCSC and the Stockholders in writing that in its reasonable opinion the aggregate amount of New MCSC Shares requested to be included in such offering is more than can be sold without materially and adversely affecting the success of such offering, MCSC will include in such registration first, the securities to be offered by MCSC (if any), and then only such aggregate amount of new MCSC Shares which in the reasonable opinion of such managing underwriter can be sold without such material adverse effect, and such securities shall be allocated among the Stockholders and any other persons or entities having registration rights pro rata based on the number of shares of MCSC Common Stock requested to be included in such registration by all such holders. If any Demand or Piggyback Registration is determined by MCSC, in its sole discretion, to be in the form of an underwritten offering, MCSC shall select the investment banker or manager in its sole discretion. If any Demand or Piggyback Registration is to be underwritten, the Stockholders, in a Demand Registration (and in a Piggyback Registration if the Stockholders elect to participate) shall be parties to the underwriting agreement between MCSC and such underwriters and MCSC and such underwriters may, at their option, require that the Stockholders make customary representations and warranties regarding their share ownership and the assets and operations of BRITCO prior to Closing for the benefit of such underwriters. No Stockholder may participate in any underwritten Demand or Piggyback Registration unless such Stockholder (A) agrees to sell its New MCSC Shares on the basis provided in any underwriting arrangement approved by MCSC, and (B) completes and executes all questionnaires, powers of attorney, indemnities, securities escrow agreements, underwriting agreements and other documents required under the terms of such underwriting, and furnishes to MCSC such information as the MCSC may reasonably request in writing for inclusion in the registration statement (and the prospectus included therein).
(ii) Each Stockholder, whether or not such Stockholder participates in an underwritten registration, agrees, if so required by the managing underwriter, not to effect any public sale or distribution of such New MCSC Shares or sales of such shares pursuant to Rule 144, during the seven (7) days prior to and the ninety (90) days after any firm commitment underwritten registration has become effective or, if the managing underwriter advises MCSC in writing that, in its opinion, no such public sale or distribution should be effected for a specified period longer than ninety (90) days after such underwritten registration in order to complete the sale and distribution of securities included in such registration and MCSC gives notice to such shareholder of such advice, during a reasonably longer period after such underwritten registration but in no event longer than one hundred twenty (120) days, except as part of such underwritten registration.
(iii) Prior to the filing of a Subsequent Registration Statement, MCSC shall: (A) give to the Stockholders notice thereof as soon as practicable; and (B) include in Subsequent Registration Statement and in any underwriting involved therein, such New MCSC Shares as permitted herein upon receipt of a request by the Stockholders to do so within ten
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Miami Computer Supply Corp)
Treatment of Capital Stock. Subject to the provisions of this Agreement, at the Effective Time, automatically by virtue of the Merger and without any action on the part of any Stockholder:
(a) each share of the common stock, no par value per share, of MFAC MBAC (the "MFAC MBAC Common Stock") issued and outstanding immediately prior to the Effective Time shall be unchanged and shall remain issued and outstanding and owned beneficially and of record by MCSC; and
(b) (i) subject to Sections 2.5, 2.6 and 2.7 hereof, all of the issued voting and outstanding non-voting shares of the common stock, $1.00 no par value per share of TBS DBPC (the "TBS DBPC Common Stock") issued and outstanding immediately prior to the Effective Time Closing Date shall be exchanged for become, upon delivery of such shares duly endorsed to MCSC, by operation of law, the right of the DBPC Stockholders to receive cash or a promissory note (the "DBPC Cash PortionConsideration") in the amount of six twenty three million three hundred ninety-one thirty three thousand dollars ($691,000.0023,333,000.00) (subject to adjustment as set forth in Section 2.3(b)(iii)) and 210,000 an aggregate number of unregistered shares (the "New MCSC Shares") of common stock, no par value per share, of MCSC (the "MCSC Common Stock" or the "Stock Portion") (the Cash Portion determined as set forth AGREEMENT AND PLAN OF REORGANIZATION PAGE 7 above and the Stock Portion being collectively referred to herein as the "Purchase Price").
(i) The Stockholders shall be entitled to receive additional consideration (the "Deferred Purchase Price") based on the pre-tax income (as determined by MCSC's independent auditors pursuant to generally accepted accounting principles ("GAAP")) earned by MFAC during the thirty-three (33) full calendar months immediately subsequent to the Closing Date (if the Closing Date is within any month, the first month (the first day of which shall be deemed the "Deferred Purchase Price Commencement Date") to be used to determine the Deferred Purchase Price shall be in the next full month immediately following the month in which the Closing Date occurs), as follows: If MFAC's pre-tax The Stockholders income is: will receive: -------------- ---------------- Greater than $2,000,000 $500,000 But less than $2,500,000 Greater than $2,500,000 $1,350,000 But less than $2,800,000 Greater than $2,800,000 $1,770,000 But less than $3,300,000 Greater than $3,300,000 $2,000,000 But less than $4,000,000 Greater than $4,000,000 $2,500,000
(ii) For purposes of determining the Deferred Purchase Price, the pre-tax income of MFAC will be measured on the day which is the 990th day subsequent to the Deferred Purchase Price Commencement Date. The Deferred Purchase Price shall be paid by MCSC 55% in unregistered shares of MCSC Common Stock and 45% in cashsentence. The number of shares of New MCSC Common Stock Shares to be paid issued hereunder to the Stockholders of DBPC shall be equal to the quotient of $3,167,000.00 divided by MCSC as the stock portion of the Deferred Purchase Price "x," where "x" shall equal the quotient of the Deferred Purchase Price (as calculated in Section 2.3(c)(i), above), multiplied by .55 and then divided by the arithmetic average per share closing price of (discarding the one highest price and the one lowest price) for the MCSC Common Stock as quoted reported by the Nasdaq National Market System for the period of twenty (20) trading days immediately prior to to, but not including, November 18, 1998 (the 990th day subsequent to "ACP"). After the Deferred Purchase Price Commencement Date. If earned purchase of the DBPC Common Stock by MCSC from the DBPC Stockholders and as set forth abovea result of the Merger of DBPC with and into MBAC, and confirmed all of the DBPC Common Stock held by MCSC's independent auditors to MCSC in writing, MCSC shall pay to the Stockholders such Deferred Purchase Price by share issuance and by check on or before the 1,050th day subsequent to the Deferred Purchase Price Commencement Date. MCSC shall have the right to alter the structure of the proposed transaction be cancelled for tax and other AGREEMENT AND PLAN OF REORGANIZATION PAGE 8 business reasons provided that no such change shall change the form or amount of the Purchase Price without the prior written consent of the Stockholders.
(d) The New MCSC Shares to be received by the Stockholders of TBS will be subject to restrictions on transferability and resale for a period of 270 days after the Closing Date.consideration;
Appears in 1 contract
Samples: Stock Purchase and Sale Agreement (Miami Computer Supply Corp)
