EXHIBIT 2.2
FIRST AMENDMENT
TO
AGREEMENT AND PLAN OF MERGER
This First Amendment to Agreement and Plan of Merger (the "First
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Amendment"), dated as of January 12, 2000, is between Group Maintenance
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America Corp., a Texas corporation (the "Texas Company"), and Building One
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Services Corporation, a Delaware corporation (the "Delaware Company"). As used
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in this Agreement, the term "Party" refers to the Texas Company or the Delaware
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Company, individually, and the term "Parties" refers to the Texas Company and
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the Delaware Company, collectively.
WHEREAS, the Texas Company and the Delaware Company are parties to that
certain Agreement and Plan of Merger dated November 2, 1999 (the "Merger
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Agreement"); and
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WHEREAS, pursuant to Section 8.2 of the Merger Agreement, the Texas Company
and the Delaware Company wish to amend the Merger Agreement in the manner set
forth in this First Amendment;
NOW THEREFORE, in consideration of the foregoing and the agreements set
forth herein, each of the Parties agrees as follows:
1. DEFINED TERMS AND ACKNOWLEDGMENT
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Unless otherwise defined herein, capitalized terms have the respective
meanings set out in the Merger Agreement. Further, except as amended herein,
each of the Texas Company and the Delaware Company acknowledge and confirm each
and every term and provision of the Merger Agreement.
II. AMENDMENTS
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A. Exhibit 1.4(a) to the Merger Agreement is hereby deleted in its
entirety and replaced in its entirety with the Exhibit 1.4(a)
attached hereto as Annex I
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B. Exhibit 5.8(c) to the Merger Agreement is hereby deleted in its
entirety and replaced in its entirety with the Exhibit 5.8(c)
attached hereto as Annex II
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III. MISCELLANEOUS
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A. Miscellaneous. The provisions of Article VIII of the Merger
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Agreement shall apply to this First Amendment and are hereby incorporated into
this First Amendment in their entirety except that the word "Agreement" as used
in Article VIII shall be construed to mean the Merger Agreement as amended by
this First Amendment where appropriate.
B. Entire Agreement; No Third Party Beneficiaries. This First
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Amendment and the Merger Agreement (including the documents and the instruments
referred to herein and therein), and the Confidentiality Agreement (a)
constitute the entire agreement and supersede all prior agreements and
understandings, both written and oral, between the Parties with respect to the
subject matter hereof and thereof, and (b) other than Article II, and Sections
3.24(c) and 4.24(c) of the Merger Agreement, are not intended to confer upon any
Person other than the Parties hereto and thereto any rights or remedies
hereunder or thereunder.
C. Assignment. Neither this First Amendment, the Merger Agreement
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nor any of the rights, interests or obligations hereunder or thereunder will be
assigned by any Party (whether by operation of Law or otherwise) without the
prior written consent of the other Party. The Merger Agreement, as amended by
this First Amendment, will be binding upon, inure to the benefit of and be
enforceable by the Parties and their respective successors and assigns.
D. Counterparts. This First Amendment may be executed in two or more
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counterparts, all of which will be considered one and the same agreement and
will become effective when two or more counterparts have been signed by each of
the Parties and delivered to the other Parties, it being understood that all
Parties need not sign the same counterpart.
(The remainder of this page has been intentionally left blank.)
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IN WITNESS WHEREOF, this First Amendment has been duly executed and
delivered on the date first herein above written.
TEXAS COMPANY:
GROUP MAINTENANCE AMERICA CORP.
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
DELAWARE COMPANY:
BUILDING ONE SERVICES CORPORATION
By:____________________________________________
Name:__________________________________________
Title:_________________________________________
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ANNEX I
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EXHIBIT 1.4(a)
AMENDED AND RESTATED ARTICLES OF INCORPORATION
OF
GROUP MAINTENANCE AMERICA CORP.
ARTICLE I
Group Maintenance America Corp., pursuant to the provisions of Article 4.07
of the Texas Business Corporation Act ("TBCA"), hereby adopts restated articles
of incorporation which accurately copy the articles of incorporation and all
amendments thereto that are in effect to date and as further amended by such
restated articles of incorporation as hereinafter set forth and which contain no
other change in any provision thereof.
ARTICLE II
The articles of incorporation of the corporation are amended by the
restated articles of incorporation as follows:
1. Article I is amended in its entirety to be as follows:
"ARTICLE I
Name
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The name of the Corporation is Encompass Services Corporation."
2. The first paragraph of Article IV is amended in its entirety to be as
follows:
"The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 250,000,000 which shall be divided into
(a) 200,000,000 shares of common stock having a par value of $.001 per
share ("Common Stock") and (b) 50,000,000 shares of preferred stock having
a par value of $.001 per share ("Preferred Stock")."
3. Article VI is amended in its entirety to be as follows:
ARTICLE VI
Registered Office and Agent
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The street address of the registered office of the Corporation is 0
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. The name of the
registered agent of the Corporation at such address is J. Xxxxxxx Xxxxxxxx,
Xx."
4. Article VII is amended in its entirety to be as follows:
"ARTICLE VII
Board of Directors
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1. The property, affairs and business of the Corporation shall be managed
by or under the direction of the Corporation's board of directors. Subject to
the rights of the holders of any series of Preferred Stock, the number of
directors constituting the board of directors of the Corporation shall not be
less than nine (9) nor more than eighteen (18). Subject to the rights of the
holders of any series of Preferred Stock, the number of directors shall be
determined from time to time hereafter exclusively pursuant to a resolution
adopted by the affirmative vote of a majority of the entire board of directors.
For purposes of these Restated Articles of Incorporation, the "entire board of
directors" shall mean the number of directors that would be in office if there
were no vacancies nor any unfilled newly created directorships. Directors need
not be residents of the State of Texas or shareholders of the Corporation. Until
the third annual meeting of shareholders following effectiveness of these
Restated Articles of Incorporation under the TBCA, the directors shall be
divided into three classes, which shall consist, as nearly as possible, of one-
third of the total number of directors constituting the entire Board of
Directors, and designated Class I, Class II and Class III, respectively. Each
director elected or appointed prior to the effectiveness of these Restated
Articles of Incorporation under the TBCA shall serve for their full term, such
that the term of each Class I director shall end at the second succeeding annual
meeting of shareholders following effectiveness of these Restated Articles of
Incorporation, the term of each Class II director shall end at the third
succeeding annual meeting of shareholders following effectiveness of these
Restated Articles of Incorporation, and the term of each Class III director
shall end at the first succeeding annual meeting of shareholders following
effectiveness of these Restated Articles of Incorporation. The term of each
director elected after the effectiveness of these Restated Articles of
Incorporation whether at an annual meeting or to fill a vacancy in the board of
directors arising for any reason, including any increase in the size of the
board of directors, shall end at the first annual meeting following his or her
election. Commencing with the third annual meeting of shareholders following the
effectiveness of these Restated Articles of Incorporation, the foregoing
classification of the board of directors shall cease, and all directors shall be
of one class and serve for a term ending at the annual meeting following the
annual meeting at which the director was elected. In no case shall a decrease in
the number of directors shorten the term of any incumbent director. Each
director shall hold office after the annual meeting at which his or her term is
scheduled to end until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, disqualification or removal from
office in accordance with the TBCA. Any newly created directorship resulting
from an increase in the number of directors may be filled by a majority of the
board of directors then in office, provided that a quorum is present, and any
other vacancy on the board of directors may be filled by a majority of the
directors then in office, even if less than a quorum, or by a sole remaining
director.
2. Notwithstanding anything else contained in these Restated Articles of
Incorporation, whenever holders of any one or more series of Preferred Stock
shall have the right, voting separately by class or series, to elect directors
at any annual or special meeting of shareholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the provisions applicable to such class or series established pursuant to
Paragraph 1 of Article IV hereof.
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Directors shall be elected by such holders annually unless expressly provided
otherwise by the terms of such class or series of Preferred Stock.
3. No director of the Corporation shall be removed from office as a
director by vote or other action of the shareholders or otherwise except for
cause."
5. Article XII is hereby deleted in its entirety.
6. Article XIII is amended in its entirety to be as follows:
"ARTICLE XII
Provisions Applicable to Business Combinations
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1. Vote Required for Certain Business Combinations. In addition to any
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affirmative vote required by law or these Articles of Incorporation or the
Bylaws of the Corporation, and except as otherwise expressly provided in Section
2 of this Article XII, a Business Combination (as hereinafter defined) with, or
proposed by or on behalf of, any Interested Shareholder (as hereinafter defined)
or any Affiliate or Associate (as hereinafter defined) of any Interested
Shareholder or any person who thereafter would be an Affiliate or Associate of
such Interested Shareholder, shall require the affirmative vote of not less than
eighty percent (80%) of the votes entitled to be cast by the holders of all of
the then outstanding shares of Voting Stock (as hereinafter defined), voting
together as a single class, and the affirmative vote of not less than a majority
of the votes entitled to be cast by the Voting Stock beneficially owned by
persons other than such Interested Shareholder. Each share of Voting Stock
shall have the number of votes granted to it in, or duly fixed by the board of
directors pursuant to, Article IV of these Articles of Incorporation. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage or separate class vote may be specified,
by law, or in any agreement of the Corporation with any national securities
exchange or otherwise.
2. Exceptions to Higher Vote Requirement. The provisions of Section 3 of
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this Article XII shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote, if any,
as is required by law or by any other provision of these Articles of
Incorporation or the Bylaws of the Corporation, or any agreement with any
national securities exchange, if all of the conditions specified in any of the
following Paragraphs (a), (b) or (c) are met or, in the case of a Business
Combination not involving the payment of consideration to the holders of the
Corporation's outstanding Capital Stock (as hereinafter defined), if the
condition specified in the following Paragraph (a) is met:
(a) The Business Combination shall have been approved either
specifically, or as a transaction which is within a series of related
transactions described with reasonable specificity, by at least an eighty
percent (80%) vote of the Continuing Directors (as hereinafter defined),
who shall at the time constitute at least a majority of the Whole Board (as
hereinafter defined) (whether or not such approval occurs prior to or
subsequent to the
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acquisition of, or announcement or public disclosure of the intention to
acquire, beneficial ownership of the Voting Stock that caused the
Interested Shareholder to become an Interested Shareholder).
(b) All of the following conditions shall have been met:
(i) The aggregate amount of cash and the Fair Market Value (as
hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received
per share by holders of Common Stock of the Corporation in such
Business Combination shall be at least equal to the higher amount
determined under clauses (A) and (B) below:
(A) (If applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) ("Highest Purchase Price") paid by or on behalf of the
Interested Shareholder for any share of Common Stock in
connection with the acquisition by the Interested Shareholder of
beneficial ownership of shares of Common Stock,
(x) within the two-year period immediately prior to the
first public announcement of the proposed Business
Combination (the "Announcement Date"), or
(y) in the transaction in which it became an Interested
Shareholder,
whichever is higher, in either case, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to the Common Stock; provided that
if the Business Combination is effected more than 180 days after
the last date upon which such Interested Shareholder paid the
Highest Purchase Price, then the consideration to be received by
the shareholders shall be increased by Interest (as hereinafter
defined) with respect to the period from the date the Interested
Shareholder paid the applicable Highest Purchase Price to the
effective date of the Business Combination ("Adjustment Period").
(B) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date (the "Determination Date") on
which the Interested Shareholder became an Interested
Shareholder, whichever is higher, as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with
respect to the Common Stock.
(ii) The aggregate amount of cash and the Fair Market Value, as
of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding
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Capital Stock, other than Common Stock, shall be at least equal to the
highest amount determined under clauses (A), (B) and (C) below:
(A) (If applicable) the Highest Purchase Price paid by or
on behalf of the Interested Shareholder for any share of such
class or series of Capital Stock in connection with the
acquisition by the Interested Shareholder of beneficial ownership
of shares of such class or series of Capital Stock,
(x) within the two-year period immediately prior to
the Announcement Date, or
(y) in the transaction in which it became an
Interested Shareholder,
whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or series of Capital
Stock; provided that if the Business Combination is effected more
than 180 days after the last date upon which such Interested
Shareholder paid the Highest Purchase Price, then the
consideration to be received by the shareholders shall be
increased by Interest with respect to the Adjustment Period.
(B) The Fair Market Value per share of such class or series
of Capital Stock on the Announcement Date or on the Determination
Date, whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock; and
(C) (If applicable) the highest preferential amount per
share to which the holders of shares of such class or series of
Capital Stock would be entitled, as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock, in the event of
any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation regardless of whether the
Business Combination to be consummated constitutes such an event.
(iii) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be in
cash or in the same form as previously has been paid by or on behalf
of the Interested Shareholder in connection with its direct or
indirect acquisition of beneficial ownership of shares of such class
or series of Capital Stock. If the consideration so paid for shares
of any class or series of Capital Stock varies as to form, the form of
consideration for such class or series of Capital Stock shall be
either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock
previously acquired by the Interested Shareholder.
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(iv) After the Determination Date and prior to the consummation
of such Business Combination:
(A) Except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at
the regular date therefor any full quarterly dividends (whether
or not cumulative) payable in accordance with the terms of any
outstanding Capital Stock;
(B) There shall have been no reduction in the annual rate
of dividends paid on the Common Stock (except as necessary to
reflect any stock split, stock dividend or subdivision of the
Common Stock of the Corporation), except as approved by a
majority of the Continuing Directors;
(C) There shall have been an increase in the annual rate
of dividends paid on the Common Stock as necessary to reflect any
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that
has the effect of reducing the number of outstanding shares of
common stock of the Corporation, unless the failure to increase
such annual rate is approved by a majority of the Continuing
Directors; and
(D) Neither such Interested Shareholder nor any of its
Affiliates shall have become the beneficial owner of any
additional shares of Capital Stock or securities convertible into
Capital Stock except as part of the transaction that results in
such Interested Shareholder becoming an Interested Shareholder
and except in a transaction that, after giving effect thereto,
would not result in any increase in the percentage beneficial
ownership of the Interested Shareholder or any of its Affiliates
of any class or series of Capital Stock.
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act") (or any subsequent
provisions replacing such Exchange Act, rules or regulations) shall be
mailed to all shareholders of the Corporation at least thirty (30)
days prior to the consummation of such Business Combination (whether
or not such proxy or information statement is required to be mailed
pursuant to the Exchange Act or subsequent provisions).
(vi) Such Interested Shareholder shall not have made any major
change in the Corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
(vii) The Interested Shareholder and any of its Affiliates shall
not have received the benefit, directly or indirectly (except
proportionately as a shareholder),
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of any loans, advantages, guarantees, pledges or other financial
assistance or any tax credits or other tax advances provided by the
Corporation or any Subsidiary, whether in anticipation of or in
connection with such Business Combination or otherwise.
(c) The Business Combination shall be allowed, permitted or
required under the terms of any Statement of Designation governing any
Preferred Stock of the Corporation or pursuant to the Investor's Rights
Agreement by and between the Corporation and Boss II, LLC, or necessary or
required as part of or in connection with the Merger.
3. Certain Definitions. The following definitions shall apply with
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respect to this Article XII:
(a) The term "Business Combination" shall mean:
(i) Any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested
Shareholder or (B) any other company (whether or not itself an
Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Shareholder which, in any case, involves the issuance, redemption,
cancellation, exchange or conversion of shares, obligations, evidences
of ownership, rights to purchase securities or other securities (in
one transaction or a series of transactions) having an aggregate Fair
Market Value (as hereinafter defined) of more than twenty percent
(20%) of the Total Assets of the Corporation (as hereinafter defined);
or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions),
including without limitation any other security device, to or with any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder of any assets, securities or commitments of the
Corporation or any Subsidiary (as hereinafter defined) having an
aggregate Fair Market Value of more than twenty percent (20%) of the
Total Assets of the Corporation; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder in exchange for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value of more
than twenty percent (20%) of the Total Assets of the Corporation; or
(iv) the adoption of any plan or proposal for the liquidation,
spinoff, splitoff, splitup or dissolution of the Corporation proposed
by or on behalf of any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder; or
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(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
any Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class or series of equity or convertible securities of
the Corporation or any Subsidiary which is beneficially owned (as
hereinafter defined) by an Interested Shareholder or any Affiliate of
any Interested Shareholder by more than one percent, except for
transactions described in subparagraphs (i), (ii) or (iii) of this
Paragraph 3(a) which involve assets, cash, securities or other
property of the Corporation with an aggregate Fair Market Value not in
excess of twenty percent (20%) of the Total Assets of the Corporation;
or
(vi) any agreement, contract or other arrangement providing for
any of the transactions described in this definition of Business
Combination.
(b) The term "Capital Stock" shall mean all capital stock of the
Corporation now or hereafter authorized to be issued from time to time by
the Corporation, and the term "Voting Stock" shall mean shares of Capital
Stock which are entitled to vote generally in the election of directors.
(c) The term "Total Assets of the Corporation" means the total assets
of the Corporation, as reflected on the most recent consolidated balance
sheet of the Corporation at the time the shareholders of the Corporation
would be required to approve or adopt the transaction in question.
(d) The term "person" shall mean any individual, firm, company,
corporation, partnership, limited liability company, or other entity and
shall include any "group" comprised of any person (as the term "group" is
defined in Section 13(d)(3) of the Exchange Act).
(e) "Interested Shareholder" means any person (other than the
Corporation or any Subsidiary) who or which is the beneficial owner (as
hereinafter defined), directly or indirectly, of ten percent or more of the
voting power of the outstanding Voting Stock; provided, however, the term
"Interested Shareholder" shall not include any employee stock ownership or
other employee benefit plan of the Corporation or any Subsidiary, or any
trustee of, or fiduciary with respect to, any such plan when acting in such
capacity.
(f) A person shall be a "beneficial owner" of, or shall "beneficially
own" any Capital Stock (i) which such person or any of its Affiliates or
Associates owns, directly or indirectly; (ii) which such person or any of
its Affiliates or Associates has, directly or indirectly, (A) the right to
acquire (whether such right is exercisable immediately or only after the
passage of any period of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or
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understanding; or (iii) which are owned, directly or indirectly, by any
other person with which such person or any of its Affiliates or Associates
has any agreement, arrangement or understanding for the purpose of
acquiring, holding, voting or disposing of any shares of Capital Stock. For
the purposes of determining whether a person is an Interested Shareholder
pursuant to Paragraph (e) of this Section 3, the number of shares of
Capital Stock deemed to be outstanding shall include shares deemed
beneficially owned by such person through application of this Paragraph (f)
of Section 3, but shall not include any other shares of Capital Stock that
may be issuable pursuant to any arrangement or understanding, or upon
exercise of conversion rights, warrants, or options, or otherwise.
(g) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Exchange Act as in
effect on April 1, 1997.
(h) The term "Subsidiary" means any company of which a majority of
any class of Equity Security is beneficially owned, directly or indirectly,
by the Corporation; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in Paragraph (e) of this
Section 3, the term "Subsidiary" shall mean only a company of which a
majority of each class of Equity Security is beneficially owned by the
Corporation.
(i) The term "Continuing Directors" means (i) any member of the board
of directors of the Corporation, while such person is a member of the board
of directors, who is not the Interested Shareholder, an Affiliate or
Associate of the Interested Shareholder or a representative of any such
person and who was a member of the board of directors prior to the
Determination Date, and (ii) any successor of any of the Continuing
Directors, while such successor is a member of the board of directors, who
is not the Interested Shareholder, an Affiliate or Associate of the
Interested Shareholder or a representative of any such person and who is
recommended or elected to succeed any of the Continuing Directors by a
majority of Continuing Directors.
(j) The term "Fair Market Value" means (i) in the case of stock, the
highest closing sales price during the 30-day period immediately preceding
the date in question of a share of such stock on the principal United
States securities exchange registered under the Exchange Act on which such
stock is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith; and
(ii) in the case of property other than stock, the fair market value of
such property on the date in question as determined by a majority of the
Continuing Directors in good faith.
(k) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in Paragraphs (b)(i) and (b)(ii) of Section 2 of this Article XII shall
include the shares of Common Stock of the
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Corporation and/or the shares of any other class or series of Capital Stock
retained by the holders of such shares.
(l) The term "Interest" means interest with respect to the applicable
Highest Purchase Price accrued daily at an annual rate equal to 110% of the
arithmetic average of the weekly per annum market discount rates for 3-
month U.S. Treasury bills during the Adjustment Period, as published by the
Board of Governors of the Federal Reserve System; provided, however, that
in respect of any portion of the Adjustment Period during which the
Corporation cannot determine Interest in the foregoing manner, Interest
shall be deemed to be ten percent (10%); and provided further that any such
amount shall be reduced, but not below zero, by the aggregate of the
regular quarterly cash dividends paid per share of Common Stock during the
Adjustment Period.
(m) The term "Equity Security" shall have the meaning ascribed to
such term in Section 3(a)(11) of the Exchange Act, as in effect on April 1,
1997.
(n) "Whole Board" means the total number of directors which this
Corporation would have if there were no vacancies.
(o) The term "Merger" means the merger contemplated by the Agreement
and Plan of Merger dated November 2, 1999, by and between Group Maintenance
America Corp. and Building One Services Corporation as amended.
4. A majority of the Whole Board, but only if a majority of the Whole
Board shall then consist of Continuing Directors or, if a majority of the Whole
Board shall not then consist of Continuing Directors, a majority of the then
Continuing Directors, shall have the power and duty to determine, on the basis
of information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article XII, including, without limitation, (i)
whether a person is an Interested Shareholder, (ii) the number of shares of
Voting Stock beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another; (iv) whether the applicable conditions set
forth in Paragraph (b) of Section 2 have been met with respect to any Business
Combination, (v) the Fair Market Value of Stock or other property in accordance
with Paragraph (j) of Section 3 of this Article XII, and (vi) whether the
securities which are the subject of any Business Combination referred to in
Paragraph (a)(i) of Section 3, or the assets, securities or commitments which
are the subject of any Business Combination referred to in Paragraph (a)(ii) of
Section 3, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
referred to in Paragraph (a)(iii) of Section 3 have, in any such case, an
aggregate Fair Market Value of more than twenty percent (20%) of the Total
Assets of the Corporation.
5. A majority of the Whole Board shall have the right to demand, but only
if a majority of the Whole Board shall then consist of Continuing Directors, or,
if a majority of the Whole Board shall not then consist of Continuing Directors,
a majority of the then Continuing Directors shall have the right to demand, that
any person who it is reasonably believed is an Interested Shareholder (or holds
of record shares of Voting Stock beneficially owned by any Interested
Shareholder) supply the
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Corporation with complete information as to (i) the record owner(s) of all
shares beneficially owned by such person who it is reasonably believed is an
Interested Shareholder, (ii) the number of, and class or series of, shares
beneficially owned by such person who it is reasonably believed is an Interested
Shareholder and held of record by each such record owner and the number(s) of
the stock certificate(s) evidencing such shares, and (iii) any other factual
matter relating to the applicability or effect of this Article XII, as may be
reasonably requested of such person, and such person shall furnish such
information within ten (10) days after receipt of such demand.
6. Nothing contained in this Article XII shall be construed to relieve any
Interested Shareholder from any fiduciary obligation imposed by law.
7. Notwithstanding any other provisions of these Articles of Incorporation
or any provision of law which might otherwise permit a lesser vote or no vote,
but in addition to any affirmative vote of the board of directors and the
holders of any particular class or series of the Voting Stock required by law or
these Articles of Incorporation, to alter, amend or repeal this Article XII, as
an additional requirement for such action, either (i) the Continuing Directors,
who at the time shall constitute at least a majority of the Whole Board, shall
expressly approve such action by at least an eighty percent (80%) vote of such
Continuing Directors; or (ii) such action shall be adopted or approved by the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class."
7. Article XIV is amended in its entirety to be as follows:
"ARTICLE XIII.
Certain Acquisitions of Voting Stock by the Corporation
-------------------------------------------------------
1. The Corporation shall not acquire, directly or indirectly, any Voting
Stock, by the purchase, exchange or otherwise from any Related Person (as
hereinafter defined) or any of its Affiliates or Associates.
2. This article shall not be applicable to any acquisition of Voting
Stock (i) pursuant to a Tender Offer made to all holders of any class of Voting
Stock on the same price, terms and conditions and, if for less than all of the
Voting Stock, subject to pro rata acceptance (except as to holders of fewer than
100 shares), (ii) in compliance with Rule 10b-18 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, as in effect
at the date of adoption of this article, (iii) for a total consideration per
share, including payment for legal fees, investment banking fees, brokerage fees
and related costs and expenses of the holder in acquiring such Voting Stock, not
in excess of the Fair Market Value per share, determined as of the Acquisition
Date, (iv) pursuant to the terms of the Statement of Designation for any series
of Preferred Stock or pursuant to the Investor's Rights Agreement by and between
the Corporation and Boss II, LLC, or (v) as part of or in connection with the
Merger.
3. The term "Acquisition Date" means the date on which the Related Person
became a Related Person.
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4. The term "Related Person" means any person (other than the Corporation
or any Subsidiary) who or which is the beneficial owner, directly or indirectly,
of five percent or more of the voting power of the then outstanding Voting
Stock.
5. The term "Tender Offer" means any tender offer for, or request or
invitation for tenders of, Voting Stock, within the meaning of Section 14(d)(1)
of the Securities Exchange Act of 1934, as amended, as in effect at the date of
adoption of this article, and any purchase or series of purchases of Voting
Stock at or above then prevailing market prices for such Voting Stock pursuant
to which more than five percent of the outstanding Voting Stock is acquired in
any two-year period.
6. The term "Merger" means the merger contemplated by the Agreement and
Plan of Merger dated November 2, 1999, by and between Group Maintenance America
Corp. and Building One Services Corporation as amended.
7. Notwithstanding any other provisions of these Articles of Incorporation
or any provision of law which might otherwise permit a lesser vote or no vote,
but in addition to any affirmative vote of the board of directors and the
holders of any particular class or series of the Voting Stock required by law or
these Articles of Incorporation, to alter, amend or repeal this Article XIII, as
an additional requirement for such action, either (i) the Continuing Directors,
who at the time shall constitute at least a majority of the Whole Board, shall
expressly approve such action by at least an eighty percent (80%) vote of such
Continuing Directors; or (ii) such action shall be adopted or approved by the
affirmative vote of the holders of at least eighty percent (80%) of the voting
power of all of the then-outstanding shares of the Voting Stock, voting together
as a single class."
ARTICLE III
Each such amendment made by the restated articles of incorporation has been
effected in conformity with the provisions of the Texas Business Corporation Act
and such restated articles of incorporation and each such amendment made by the
restated articles of incorporation were duly adopted at a meeting of the
shareholders of the Corporation, duly called, and held on __________________.
ARTICLE IV
The number of shares outstanding was ________________ and the number of
shares entitled to vote on the amendments and restated articles of incorporation
was ___________; the number of shares voted for such restated articles as so
amended was _____________; and the number of shares that abstained or did not
vote at the meeting of the shareholders regarding such restated articles as so
amended was ____________.
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ARTICLE V
The articles of incorporation and all amendments and supplements thereto
are hereby superseded by the following restated articles of incorporation which
accurately copy the entire text thereof and as amended as above set forth:
RESTATED ARTICLES OF INCORPORATION
OF
GROUP MAINTENANCE AMERICA CORP
ARTICLE I
Name
----
The name of the Corporation is Encompass Services Corporation.
ARTICLE II
Duration
--------
The period of the duration of the Corporation is perpetual.
ARTICLE III
Purpose
-------
The purpose for which the Corporation is organized is to transact any and
all lawful business for which corporations may be incorporated under the Texas
Business Corporation Act (the "TBCA").
ARTICLE IV
Capital Stock
-------------
The total number of shares of all classes of stock which the Corporation
shall have authority to issue is 250,000,000 which shall be divided into (a)
200,000,000 shares of common stock having a par value of $.001 per share
("Common Stock") and (b) 50,000,000 shares of preferred stock having a par value
of $.001 per share ("Preferred Stock").
A description of the different classes of stock of the Corporation and a
statement of the designations, preferences, limitations and relative rights,
including voting rights of the various classes of stock are as follows:
-13-
1. Preferred Stock. The shares of Preferred Stock may be divided into
---------------
and issued in series. The board of directors shall have the authority to
establish series of unissued shares of Preferred Stock by fixing and determining
the relative rights and preferences of the shares of any series so established,
and to increase or decrease the number of shares within each such series;
provided, however, that the board of directors may not decrease the number of
shares within a series of Preferred Stock to less than the number of shares
within such series that are then issued. The Preferred Stock of each such
series shall have such designations, preferences, limitations or relative
rights, including voting rights, as shall be set forth in the resolution or
resolutions establishing such series adopted by the board of directors,
including, but without limiting the generality of the foregoing, the following:
(a) the distinctive designation of, and the number of shares of
Preferred Stock that shall constitute, such series, which number (except
where otherwise provided by the board of directors in the resolution
establishing such series) may be increased or decreased (but not below the
number of shares of such series then outstanding) from time to time by like
action of the board of directors;
(b) The rights in respect of dividends, if any, of such series of
Preferred Stock, the extent of the preference or relation, if any, of such
dividends to the dividends payable on any other class or classes or any
other series of the same or other class or classes of capital stock of the
Corporation and whether such dividends shall be cumulative or
noncumulative;
(c) The right, if any, of the holders of such series of Preferred
Stock to convert the same into, or exchange the same for, shares of any
other class or classes or of any other series of the same or any other
class or classes of capital stock, obligations, indebtedness, rights to
purchase securities or other securities of the Corporation or other
entities, domestic or foreign, or for other property or for any combination
of the foregoing, and the terms and conditions of such conversion or
exchange;
(d) Whether or not shares of such series of Preferred Stock shall be
subject to redemption, and the redemption price or prices and the time or
times at which, and the terms and conditions on which, shares of such
series of Preferred Stock may be redeemed;
(e) The rights, if any, of the holders of such series of Preferred
Stock upon the voluntary or involuntary liquidation, dissolution or
winding-up of the Corporation or in the event of any merger or
consolidation of or sale of assets by the Corporation;
(f) The terms of any sinking fund or redemption or repurchase or
purchase account, if any, to be provided for shares of such series of
Preferred Stock;
(g) The voting powers, if any, of the holders of any series of
Preferred Stock generally or with respect to any particular matter, which
may be less than, equal to or greater than one vote per share, and which
may, without limiting the generality of the foregoing, include the right,
voting as a series of Preferred Stock as a class, to elect one or more
directors of the Corporation generally or under such specific circumstances
and on such
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conditions, as shall be provided in the resolution or resolutions of the
board of directors adopted pursuant hereto, including, without limitation,
in the event there shall have been a default in the payment of dividends on
or redemption of any one or more series of Preferred Stock; and
(h) Such other powers, preferences and relative, participating,
optional and other special rights, and the qualifications, limitations and
restrictions thereof, as the board of directors shall determine.
2. Common Stock.
------------
(i) Subject to the prior and superior rights of the Preferred Stock,
and on the conditions set forth in Section 1 of this Article or in any
resolution of the board of directors providing for the issuance of any series of
Preferred Stock, and not otherwise, such dividends (payable in cash, stock or
otherwise) as may be determined by the board of directors may be declared and
paid on the Common Stock from time to time out of any funds legally available
therefor.
(j) Each holder of Common Stock shall be entitled to one vote for
each share held.
3. Cumulative Voting Denied. Shares of the voting stock of the
------------------------
Corporation shall not be voted cumulatively.
4. Preemptive Rights. Except as may be established by the board of
-----------------
directors with respect to any series of Preferred Stock, shares of stock of the
Corporation do not carry preemptive rights.
5. Stock Certificates. There shall be set forth on the face or back of
------------------
each certificate for shares of stock of the Corporation a statement that each of
the following is set forth in the articles of incorporation of the Corporation
on file in the Office of the Secretary of State of the State of Texas, and that
the Corporation will furnish a copy of each such statement to the record holder
of the certificate without charge on written request to the Corporation at its
principal place of business or registered office: (i) a statement of the
designations, preferences, and relative rights, including voting rights, of each
class or series of the Corporation's capital stock to the extent that they have
been fixed and determined; (ii) a statement of the authority of the board of
directors to fix and determine the designations, preferences, limitations and
relative rights, including voting rights, of any series; and (iii) a statement
of the extent to which the Corporation has by its articles of incorporation
limited or denied the preemptive right of shareholders to acquire unissued or
treasury shares of the Corporation.
6. Reverse Stock Split. At 5:00 p.m. Houston Time on September 26, 1997
-------------------
(the "Effective Date"), each share of the Company's Common Stock, par value
$.001 per share, issued and outstanding (the "Old Common Stock") shall
automatically and without any action on the part of the holder thereof be
reclassified and changed into two-fifths of a share of the Company's Common
Stock, par value $.001 per share (the "New Common Stock"), subject to the
treatment of
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fractional share interests as described below. Each holder of a certificate or
certificates, which immediately prior to the Effective Date represented
outstanding shares of Old Common Stock (the "Old Certificates," whether one or
more), shall be entitled to receive, upon surrender of such Old Certificates to
the Company's exchange agent appointed by the Company (the "Exchange Agent") for
cancellation, a certificate or certificates (the "New Certificates," whether one
or more) representing the number of whole shares of the New Common Stock into
which and for which the shares of the Old Common Stock formerly represented by
such Old Certificates so surrendered are reclassified under the terms hereof.
From and after the Effective Date, Old Certificates shall represent only the
right to receive New Certificates (and, where applicable, cash in lieu of
fractional shares, as provided below) pursuant to the provisions hereof. No
certificates or scrip representing fractional share interests in New Common
Stock will be issued, and no such fractional share interest will entitle the
holder thereof to vote, or to any rights of a shareholder of the Company. A
holder of Old Certificates shall receive, in lieu of any fraction of a share of
New Common Stock to which the holder would otherwise be entitled, a cash payment
equal to the product of such fraction multiplied by $16.00. If more than one Old
Certificate shall be surrendered at one time for the account of the same
shareholder, the number of full shares of New Common Stock for which New
Certificates shall be issued shall be computed on the basis of the aggregate
number of shares represented by the Old Certificates so surrendered. In the
event that the Company's Exchange Agent determines that a holder of Old
Certificates has not tendered to all his certificates for exchange the Exchange
Agent shall carry forward any fractional share until all certificates of that
holder have been presented for exchange such that payment for fractional shares
to any one person shall not exceed $16.00. If any New Certificate is to be
issued in a name other than that in which the Old Certificates surrendered for
exchange are issued, the Old Certificates so surrendered shall be properly
endorsed and otherwise in proper form for transfer, and the person or persons
requesting such exchange shall affix any requisite stock transfer tax stamps to
the Old Certificates so surrendered, or provide funds for their purchase, or
establish to the satisfaction of the Exchange Agent that such taxes are not
payable. From and after the Effective Date the amount of capital represented by
the shares of the New Common Stock into which and for which the shares of Old
Common Stock are reclassified under the terms hereof shall be the same as the
amount of capital represented by the shares of Old Common Stock so reclassified,
until thereafter reduced or increased in accordance with applicable law. The
Exchange Agent shall be the Secretary of the Company or such other agent as the
Company may appoint for such purpose.
ARTICLE V
Initial Consideration for Issuance of Shares
--------------------------------------------
The Corporation will not commence business until it has received for the
issuance of its shares consideration of a value of at least One Thousand and
No/100 Dollars ($1,000.00), consisting of money, labor done or property actually
received.
-16-
ARTICLE VI
Registered Office and Agent
---------------------------
The street address of the registered office of the Corporation is 0
Xxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, Xxxxx 00000. The name of the registered
agent of the Corporation at such address is J. Xxxxxxx Xxxxxxxx, Xx.
ARTICLE VII
Board of Directors
------------------
1. The property, affairs and business of the Corporation shall be managed
by or under the direction of the Corporation's board of directors. Subject to
the rights of the holders of any series of Preferred Stock, the number of
directors constituting the board of directors of the Corporation shall not be
less than nine (9) nor more than eighteen (18). Subject to the rights of the
holders of any series of Preferred Stock, the number of directors shall be
determined from time to time hereafter exclusively pursuant to a resolution
adopted by the affirmative vote of a majority of the entire board of directors.
For purposes of these Restated Articles of Incorporation, the "entire board of
directors" shall mean the number of directors that would be in office if there
were no vacancies nor any unfilled newly created directorships. Directors need
not be residents of the State of Texas or shareholders of the Corporation. Until
the third annual meeting of shareholders following effectiveness of these
Restated Articles of Incorporation under the TBCA, the directors shall be
divided into three classes, which shall consist, as nearly as possible, of one-
third of the total number of directors constituting the entire Board of
Directors, and designated Class I, Class II and Class III, respectively. Each
director elected or appointed prior to the effectiveness of these Restated
Articles of Incorporation under the TBCAshall serve for their full term,such
that the term of each Class I director shall end at the second succeeding annual
meeting of shareholders following effectiveness of these Restated Articles of
Incorporation, the term of each Class II director shall end at the third
succeeding annual meeting of shareholders following effectiveness of these
Restated Articles of Incorporation, and the term of each Class III director
shall end at the first succeeding annual meeting of shareholders following
effectiveness of these Restated Articles of Incorporation. The term of each
director elected after the effectiveness of these Restated Articles of
Incorporation whether at an annual meeting or to fill a vacancy in the board of
directors arising for any reason, including any increase in the size of the
board of directors, shall end at the first annual meeting following his or her
election. Commencing with the third annual meeting of shareholders following the
effectiveness of these Restated Articles of Incorporation, the foregoing
classification of the board of directors shall cease, and all directors shall be
of one class and serve for a term ending at the annual meeting following the
annual meeting at which the director was elected. In no case shall a decrease in
the number of directors shorten the term of any incumbent director. Each
director shall hold office after the annual meeting at which his or her term is
scheduled to end until his or her successor shall be elected and shall qualify,
subject, however, to prior death, resignation, disqualification or removal from
office in accordance with the TBCA. Any newly created directorship resulting
from an increase in the number of directors may be filled by a majority of the
board of directors then in office, provided that
-17-
a quorum is present, and any other vacancy on the board of directors may be
filled by a majority of the directors then in office, even if less than a
quorum, or by a sole remaining director.
2. Notwithstanding anything else contained in these Restated Articles of
Incorporation, whenever holders of any one or more series of Preferred Stock
shall have the right, voting separately by class or series, to elect directors
at any annual or special meeting of shareholders, the election, term of office,
filling of vacancies and other features of such directorships shall be governed
by the provisions applicable to such class or series established pursuant to
Paragraph 1 of Article IV hereof. Directors shall be elected by such holders
annually unless expressly provided otherwise by the terms of such class or
series of Preferred Stock.
3. No director of the Corporation shall be removed from office as a
director by vote or other action of the shareholders or otherwise except for
cause.
ARTICLE VIII
Limitation of Director Liability
--------------------------------
To the greatest extent permitted by applicable law in effect from time to
time, a director of the Corporation shall not be liable to the Corporation or
its shareholders for monetary damages for an act or omission in the director's
capacity as a director except for liability for: (i) a breach of a director's
duty of loyalty to the Corporation or its shareholders; (ii) an act or omission
not in good faith that constitutes a breach of duty of the director to the
Corporation or that involved intentional misconduct or a knowing violation of
the law; (iii) a transaction from which a director received an improper benefit,
whether or not the benefit resulted from an action taken within the scope of the
director's office; (iv) an act or omission for which the liability of a director
is expressly provided for by statute; or (v) an act related to any unlawful
stock repurchase or unlawful payment of a dividend.
ARTICLE IX
Indemnification
---------------
1. Right to Indemnification. Each person who was or is made a party or
------------------------
is threatened to be made a party to or is otherwise involved in any threatened,
pending or completed action, suit or proceeding whether civil, criminal,
administrative, arbitrative or investigative, any appeal in such action, suit or
proceeding, and any inquiry or investigation that would lead to such action,
suit or proceeding (hereinafter a "proceeding"), by reason of the fact that he
or she, or a person of whom he or she is the legal representative, is or was a
director or officer of the Corporation or is or was serving at the request of
the Corporation as a director or officer of another corporation or of a
partnership, joint venture, trust or other enterprise, including service with
respect to any employee benefit plan (hereinafter an "indemnitee"), whether the
basis of such proceeding is alleged action in an official capacity as a director
or officer or in any other capacity while serving as a director or officer,
shall be indemnified and held harmless by the Corporation to the fullest extent
authorized by the TBCA, as the same exists or may hereafter be amended (but, in
the case of any such
-18-
amendment, only to the extent that such amendment permits the Corporation to
provide broader indemnification rights than permitted prior thereto), against
all judgments, fines, penalties (including excise tax and similar taxes),
settlements, and reasonable expenses actually incurred by such indemnitee in
connection therewith. The right to indemnification conferred in this Article
shall include the right to be paid by the Corporation the expenses incurred in
defending any such proceeding in advance of its final disposition (hereinafter
an "advancement of expenses"); provided, however, that if the TBCA requires, an
-------- -------
advancement of expenses incurred by an indemnitee shall be made only upon
delivery to the Corporation of any undertaking, by or on behalf of such
indemnitee, to repay all amount so advanced if it shall ultimately be determined
by that such indemnitee is not entitled to be indemnified for such expenses
under this Article or otherwise.
2. Insurance. The Corporation may purchase and maintain insurance, at
---------
its expense, on behalf of any indemnitee against any liability asserted against
him and incurred by him in such a capacity or arising out of his status as a
representative of the Corporation, whether or not the Corporation would have the
power to indemnify such person against such expense, liability or loss under the
TBCA.
3. Indemnity of Employees and Agents of the Corporation. The Corporation
----------------------------------------------------
may, to the extent authorized from time to time by the board of directors, grant
rights to indemnification and to the advancement of expenses to any employee or
agent of the Corporation to the fullest extent of the provisions of this article
or as otherwise permitted under the TBCA with respect to the indemnification and
advancement of expenses of directors and officers of the Corporation.
ARTICLE X
Call of Special Meetings of the Shareholders
--------------------------------------------
Special meetings of the Corporation's shareholders may be called (i) by the
president, the board of directors, or such other person or persons as may be
authorized in the Bylaws or (ii) by the holders of at least fifty percent (50%)
of all the shares entitled to vote at the proposed special meeting.
ARTICLE XI
Amendment of Bylaws
-------------------
In furtherance and not in limitation of the powers conferred by the laws of
the State of Texas, the board of directors is expressly authorized to alter,
amend or repeal the bylaws of the Corporation or to adopt new bylaws.
ARTICLE XII
Provisions Applicable to Business Combinations
----------------------------------------------
-19-
1. Vote Required for Certain Business Combinations. In addition to any
-----------------------------------------------
affirmative vote required by law or these Articles of Incorporation or the
Bylaws of the Corporation, and except as otherwise expressly provided in Section
2 of this Article XII, a Business Combination (as hereinafter defined) with, or
proposed by or on behalf of, any Interested Shareholder (as hereinafter defined)
or any Affiliate or Associate (as hereinafter defined) of any Interested
Shareholder or any person who thereafter would be an Affiliate or Associate of
such Interested Shareholder, shall require the affirmative vote of not less than
eighty percent (80%) of the votes entitled to be cast by the holders of all of
the then outstanding shares of Voting Stock (as hereinafter defined), voting
together as a single class, and the affirmative vote of not less than a majority
of the votes entitled to be cast by the Voting Stock beneficially owned by
persons other than such Interested Shareholder. Each share of Voting Stock shall
have the number of votes granted to it in, or duly fixed by the board of
directors pursuant to, Article IV of these Articles of Incorporation. Such
affirmative vote shall be required notwithstanding the fact that no vote may be
required, or that a lesser percentage or separate class vote may be specified,
by law, or in any agreement of the Corporation with any national securities
exchange or otherwise.
2. Exceptions to Higher Vote Requirement. The provisions of Section 3 of
-------------------------------------
this Article XII shall not be applicable to any particular Business Combination,
and such Business Combination shall require only such affirmative vote, if any,
as is required by law or by any other provision of these Articles of
Incorporation or the Bylaws of the Corporation, or any agreement with any
national securities exchange, if all of the conditions specified in any of the
following Paragraphs (a), (b) or (c) are met or, in the case of a Business
Combination not involving the payment of consideration to the holders of the
Corporation's outstanding Capital Stock (as hereinafter defined), if the
condition specified in the following Paragraph (a) is met:
(a) The Business Combination shall have been approved either
specifically, or as a transaction which is within a series of related
transactions described with reasonable specificity, by at least an eighty
percent (80%) vote of the Continuing Directors (as hereinafter defined),
who shall at the time constitute at least a majority of the Whole Board (as
hereinafter defined) (whether or not such approval occurs prior to or
subsequent to the acquisition of, or announcement or public disclosure of
the intention to acquire, beneficial ownership of the Voting Stock that
caused the Interested Shareholder to become an Interested Shareholder).
(b) All of the following conditions shall have been met:
(i) The aggregate amount of cash and the Fair Market Value (as
hereinafter defined), as of the date of the consummation of the
Business Combination, of consideration other than cash to be received
per share by holders of Common Stock of the Corporation in such
Business Combination shall be at least equal to the higher amount
determined under clauses (A) and (B) below:
(A) (If applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) ("Highest Purchase Price") paid by or on behalf of the
Interested Shareholder for any
-20-
share of Common Stock in connection with the acquisition by the
Interested Shareholder of beneficial ownership of shares of
Common Stock,
(x) within the two-year period immediately prior to
the first public announcement of the proposed Business
Combination (the "Announcement Date"), or
(y) in the transaction in which it became an
Interested Shareholder,
whichever is higher, in either case, as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to the Common Stock; provided that
if the Business Combination is effected more than 180 days after
the last date upon which such Interested Shareholder paid the
Highest Purchase Price, then the consideration to be received by
the shareholders shall be increased by Interest (as hereinafter
defined) with respect to the period from the date the Interested
Shareholder paid the applicable Highest Purchase Price to the
effective date of the Business Combination ("Adjustment Period").
(B) The Fair Market Value per share of Common Stock on the
Announcement Date or on the date (the "Determination Date") on
which the Interested Shareholder became an Interested
Shareholder, whichever is higher, as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with
respect to the Common Stock.
(ii) The aggregate amount of cash and the Fair Market Value, as
of the date of the consummation of the Business Combination, of
consideration other than cash to be received per share by holders of
shares of any class or series of outstanding Capital Stock, other than
Common Stock, shall be at least equal to the highest amount determined
under clauses (A), (B) and (C) below:
(A) (If applicable) the Highest Purchase Price paid by or
on behalf of the Interested Shareholder for any share of such
class or series of Capital Stock in connection with the
acquisition by the Interested Shareholder of beneficial ownership
of shares of such class or series of Capital Stock,
(x) within the two-year period immediately prior to
the Announcement Date, or
(y) in the transaction in which it became an
Interested Shareholder,
whichever is higher, in either case as adjusted for any
subsequent stock split, stock dividend, subdivision or
reclassification with respect to such class or
-21-
series of Capital Stock; provided that if the Business
Combination is effected more than 180 days after the last date
upon which such Interested Shareholder paid the Highest Purchase
Price, then the consideration to be received by the shareholders
shall be increased by Interest with respect to the Adjustment
Period.
(B) The Fair Market Value per share of such class or series
of Capital Stock on the Announcement Date or on the Determination
Date, whichever is higher, as adjusted for any subsequent stock
split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock; and
(C) (If applicable) the highest preferential amount per
share to which the holders of shares of such class or series of
Capital Stock would be entitled, as adjusted for any subsequent
stock split, stock dividend, subdivision or reclassification with
respect to such class or series of Capital Stock, in the event of
any voluntary or involuntary liquidation, dissolution or winding
up of the affairs of the Corporation regardless of whether the
Business Combination to be consummated constitutes such an event.
(iii) The consideration to be received by holders of a
particular class or series of outstanding Capital Stock shall be in
cash or in the same form as previously has been paid by or on behalf
of the Interested Shareholder in connection with its direct or
indirect acquisition of beneficial ownership of shares of such class
or series of Capital Stock. If the consideration so paid for shares
of any class or series of Capital Stock varies as to form, the form of
consideration for such class or series of Capital Stock shall be
either cash or the form used to acquire beneficial ownership of the
largest number of shares of such class or series of Capital Stock
previously acquired by the Interested Shareholder.
(iv) After the Determination Date and prior to the consummation
of such Business Combination:
(A) Except as approved by a majority of the Continuing
Directors, there shall have been no failure to declare and pay at
the regular date therefor any full quarterly dividends (whether
or not cumulative) payable in accordance with the terms of any
outstanding Capital Stock;
(B) There shall have been no reduction in the annual rate
of dividends paid on the Common Stock (except as necessary to
reflect any stock split, stock dividend or subdivision of the
Common Stock of the Corporation), except as approved by a
majority of the Continuing Directors;
(C) There shall have been an increase in the annual rate of
dividends paid on the Common Stock as necessary to reflect any
-22-
reclassification (including any reverse stock split),
recapitalization, reorganization or any similar transaction that
has the effect of reducing the number of outstanding shares of
common stock of the Corporation, unless the failure to increase
such annual rate is approved by a majority of the Continuing
Directors; and
(D) Neither such Interested Shareholder nor any of its
Affiliates shall have become the beneficial owner of any
additional shares of Capital Stock or securities convertible into
Capital Stock except as part of the transaction that results in
such Interested Shareholder becoming an Interested Shareholder
and except in a transaction that, after giving effect thereto,
would not result in any increase in the percentage beneficial
ownership of the Interested Shareholder or any of its Affiliates
of any class or series of Capital Stock.
(v) A proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder (the "Exchange Act") (or any subsequent
provisions replacing such Exchange Act, rules or regulations) shall be
mailed to all shareholders of the Corporation at least thirty (30)
days prior to the consummation of such Business Combination (whether
or not such proxy or information statement is required to be mailed
pursuant to the Exchange Act or subsequent provisions).
(vi) Such Interested Shareholder shall not have made any major
change in the Corporation's business or equity capital structure
without the approval of a majority of the Continuing Directors.
(vii) The Interested Shareholder and any of its Affiliates shall
not have received the benefit, directly or indirectly (except
proportionately as a shareholder), of any loans, advantages,
guarantees, pledges or other financial assistance or any tax credits
or other tax advances provided by the Corporation or any Subsidiary,
whether in anticipation of or in connection with such Business
Combination or otherwise.
(c) The Business Combination shall be allowed, permitted or required
under the terms of any Statement of Designation governing any Preferred
Stock of the Corporation or pursuant to the Investor's Rights Agreement by
and between the Corporation and Boss II, LLC, or necessary or required as
part of or in connection with the Merger.
3. Certain Definitions. The following definitions shall apply with
-------------------
respect to this Article XII:
(a) The term "Business Combination" shall mean:
-23-
(i) Any merger or consolidation of the Corporation or any
Subsidiary (as hereinafter defined) with (A) any Interested
Shareholder or (B) any other company (whether or not itself an
Interested Shareholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Shareholder which, in any case, involves the issuance, redemption,
cancellation, exchange or conversion of shares, obligations, evidences
of ownership, rights to purchase securities or other securities (in
one transaction or a series of transactions) having an aggregate Fair
Market Value (as hereinafter defined) of more than twenty percent
(20%) of the Total Assets of the Corporation (as hereinafter defined);
or
(ii) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions),
including without limitation any other security device, to or with any
Interested Shareholder or any Affiliate or Associate of any Interested
Shareholder of any assets, securities or commitments of the
Corporation or any Subsidiary (as hereinafter defined) having an
aggregate Fair Market Value of more than twenty percent (20%) of the
Total Assets of the Corporation; or
(iii) the issuance or transfer by the Corporation or any
Subsidiary (in one transaction or a series of transactions) of any
securities of the Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate or Associate of any Interested
Shareholder in exchange for cash, securities or other property (or a
combination thereof) having an aggregate Fair Market Value of more
than twenty percent (20%) of the Total Assets of the Corporation; or
(iv) the adoption of any plan or proposal for the liquidation,
spinoff, splitoff, splitup or dissolution of the Corporation proposed
by or on behalf of any Interested Shareholder or any Affiliate or
Associate of any Interested Shareholder; or
(v) any reclassification of securities (including any reverse
stock split), or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries or any
other transaction (whether or not with or into or otherwise involving
any Interested Shareholder) which has the effect, directly or
indirectly, of increasing the proportionate share of the outstanding
shares of any class or series of equity or convertible securities of
the Corporation or any Subsidiary which is beneficially owned (as
hereinafter defined) by an Interested Shareholder or any Affiliate of
any Interested Shareholder by more than one percent, except for
transactions described in subparagraphs (i), (ii) or (iii) of this
Paragraph 3(a) which involve assets, cash, securities or other
property of the Corporation with an aggregate Fair Market Value not in
excess of twenty percent (20%) of the Total Assets of the Corporation;
or
-24-
(vi) any agreement, contract or other arrangement providing for
any of the transactions described in this definition of Business
Combination.
(b) The term "Capital Stock" shall mean all capital stock of the
Corporation now or hereafter authorized to be issued from time to time by
the Corporation, and the term "Voting Stock" shall mean shares of Capital
Stock which are entitled to vote generally in the election of directors.
(c) The term "Total Assets of the Corporation" means the total assets
of the Corporation, as reflected on the most recent consolidated balance
sheet of the Corporation at the time the shareholders of the Corporation
would be required to approve or adopt the transaction in question.
(d) The term "person" shall mean any individual, firm, company,
corporation, partnership, limited liability company, or other entity and
shall include any "group" comprised of any person (as the term "group" is
defined in Section 13(d)(3) of the Exchange Act).
(e) "Interested Shareholder" means any person (other than the
Corporation or any Subsidiary) who or which is the beneficial owner (as
hereinafter defined), directly or indirectly, of ten percent or more of the
voting power of the outstanding Voting Stock; provided, however, the term
"Interested Shareholder" shall not include any employee stock ownership or
other employee benefit plan of the Corporation or any Subsidiary, or any
trustee of, or fiduciary with respect to, any such plan when acting in such
capacity.
(f) A person shall be a "beneficial owner" of, or shall "beneficially
own" any Capital Stock (i) which such person or any of its Affiliates or
Associates owns, directly or indirectly; (ii) which such person or any of
its Affiliates or Associates has, directly or indirectly, (A) the right to
acquire (whether such right is exercisable immediately or only after the
passage of any period of time), pursuant to any agreement, arrangement or
understanding or upon the exercise of conversion rights, exchange rights,
warrants or options, or otherwise, or (B) the right to vote pursuant to any
agreement, arrangement or understanding; or (iii) which are owned, directly
or indirectly, by any other person with which such person or any of its
Affiliates or Associates has any agreement, arrangement or understanding
for the purpose of acquiring, holding, voting or disposing of any shares of
Capital Stock. For the purposes of determining whether a person is an
Interested Shareholder pursuant to Paragraph (e) of this Section 3, the
number of shares of Capital Stock deemed to be outstanding shall include
shares deemed beneficially owned by such person through application of this
Paragraph (f) of Section 3, but shall not include any other shares of
Capital Stock that may be issuable pursuant to any arrangement or
understanding, or upon exercise of conversion rights, warrants, or options,
or otherwise.
(g) The terms "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 under the Exchange Act as in
effect on April 1, 1997.
-25-
(h) The term "Subsidiary" means any company of which a majority of
any class of Equity Security is beneficially owned, directly or indirectly,
by the Corporation; provided, however, that for the purposes of the
definition of Interested Shareholder set forth in Paragraph (e) of this
Section 3, the term "Subsidiary" shall mean only a company of which a
majority of each class of Equity Security is beneficially owned by the
Corporation.
(i) The term "Continuing Directors" means (i) any member of the board
of directors of the Corporation, while such person is a member of the board
of directors, who is not the Interested Shareholder, an Affiliate or
Associate of the Interested Shareholder or a representative of any such
person and who was a member of the board of directors prior to the
Determination Date, and (ii) any successor of any of the Continuing
Directors, while such successor is a member of the board of directors, who
is not the Interested Shareholder, an Affiliate or Associate of the
Interested Shareholder or a representative of any such person and who is
recommended or elected to succeed any of the Continuing Directors by a
majority of Continuing Directors.
(j) The term "Fair Market Value" means (i) in the case of stock, the
highest closing sales price during the 30-day period immediately preceding
the date in question of a share of such stock on the principal United
States securities exchange registered under the Exchange Act on which such
stock is listed, or, if such stock is not listed on any such exchange, the
highest closing bid quotation with respect to a share of such stock during
the 30-day period preceding the date in question on the National
Association of Securities Dealers, Inc. Automated Quotations System or any
similar system then in use, or if no such quotations are available, the
fair market value on the date in question of a share of such stock as
determined by a majority of the Continuing Directors in good faith; and
(ii) in the case of property other than stock, the fair market value of
such property on the date in question as determined by a majority of the
Continuing Directors in good faith.
(k) In the event of any Business Combination in which the Corporation
survives, the phrase "consideration other than cash to be received" as used
in Paragraphs (b)(i) and (b)(ii) of Section 2 of this Article XII shall
include the shares of Common Stock of the Corporation and/or the shares of
any other class or series of Capital Stock retained by the holders of such
shares.
(l) The term "Interest" means interest with respect to the applicable
Highest Purchase Price accrued daily at an annual rate equal to 110% of the
arithmetic average of the weekly per annum market discount rates for 3-
month U.S. Treasury bills during the Adjustment Period, as published by the
Board of Governors of the Federal Reserve System; provided, however, that
in respect of any portion of the Adjustment Period during which the
Corporation cannot determine Interest in the foregoing manner, Interest
shall be deemed to be ten percent (10%); and provided further that any such
amount shall be reduced, but not below zero, by the aggregate of the
regular quarterly cash dividends paid per share of Common Stock during the
Adjustment Period.
-26-
(m) The term "Equity Security" shall have the meaning ascribed to
such term in Section 3(a)(11) of the Exchange Act, as in effect on April 1,
1997.
(n) "Whole Board" means the total number of directors which this
Corporation would have if there were no vacancies.
(o) The term "Merger" means the merger contemplated by the Agreement
and Plan of Merger dated November 2, 1999, by and between Group Maintenance
America Corp. and Building One Services Corporation as amended.
4. A majority of the Whole Board, but only if a majority of the Whole
Board shall then consist of Continuing Directors or, if a majority of the Whole
Board shall not then consist of Continuing Directors, a majority of the then
Continuing Directors, shall have the power and duty to determine, on the basis
of information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article XII, including, without limitation, (i)
whether a person is an Interested Shareholder, (ii) the number of shares of
Voting Stock beneficially owned by any person, (iii) whether a person is an
Affiliate or Associate of another; (iv) whether the applicable conditions set
forth in Paragraph (b) of Section 2 have been met with respect to any Business
Combination, (v) the Fair Market Value of Stock or other property in accordance
with Paragraph (j) of Section 3 of this Article XII, and (vi) whether the
securities which are the subject of any Business Combination referred to in
Paragraph (a)(i) of Section 3, or the assets, securities or commitments which
are the subject of any Business Combination referred to in Paragraph (a)(ii) of
Section 3, or the consideration to be received for the issuance or transfer of
securities by the Corporation or any Subsidiary in any Business Combination
referred to in Paragraph (a)(iii) of Section 3 have, in any such case, an
aggregate Fair Market Value of more than twenty percent (20%) of the Total
Assets of the Corporation.
5. A majority of the Whole Board shall have the right to demand, but only
if a majority of the Whole Board shall then consist of Continuing Directors, or,
if a majority of the Whole Board shall not then consist of Continuing Directors,
a majority of the then Continuing Directors shall have the right to demand, that
any person who it is reasonably believed is an Interested Shareholder (or holds
of record shares of Voting Stock beneficially owned by any Interested
Shareholder) supply the Corporation with complete information as to (i) the
record owner(s) of all shares beneficially owned by such person who it is
reasonably believed is an Interested Shareholder, (ii) the number of, and class
or series of, shares beneficially owned by such person who it is reasonably
believed is an Interested Shareholder and held of record by each such record
owner and the number(s) of the stock certificate(s) evidencing such shares, and
(iii) any other factual matter relating to the applicability or effect of this
Article XII, as may be reasonably requested of such person, and such person
shall furnish such information within ten (10) days after receipt of such
demand.
6. Nothing contained in this Article XII shall be construed to relieve
any Interested Shareholder from any fiduciary obligation imposed by law.
7. Notwithstanding any other provisions of these Articles of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any
-27-
affirmative vote of the board of directors and the holders of any particular
class or series of the Voting Stock required by law or these Articles of
Incorporation, to alter, amend or repeal this Article XII, as an additional
requirement for such action, either (i) the Continuing Directors, who at the
time shall constitute at least a majority of the Whole Board, shall expressly
approve such action by at least an eighty percent (80%) vote of such Continuing
Directors; or (ii) such action shall be adopted or approved by the affirmative
vote of the holders of at least eighty percent (80%) of the voting power of all
of the then-outstanding shares of the Voting Stock, voting together as a single
class.
ARTICLE XIII.
Certain Acquisitions of Voting Stock by the Corporation
-------------------------------------------------------
1. The Corporation shall not acquire, directly or indirectly, any Voting
Stock, by the purchase, exchange or otherwise from any Related Person (as
hereinafter defined) or any of its Affiliates or Associates.
2. This article shall not be applicable to any acquisition of Voting
Stock (i) pursuant to a Tender Offer made to all holders of any class of Voting
Stock on the same price, terms and conditions and, if for less than all of the
Voting Stock, subject to pro rata acceptance (except as to holders of fewer than
100 shares), (ii) in compliance with Rule 10b-18 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as amended, as in effect
at the date of adoption of this article, (iii) for a total consideration per
share, including payment for legal fees, investment banking fees, brokerage fees
and related costs and expenses of the holder in acquiring such Voting Stock,
not in excess of the Fair Market Value per share, determined as of the
Acquisition Date, (iv) pursuant to the terms of the Statement of Designation for
any series of Preferred Stock or pursuant to the Investor's Rights Agreement by
and between the Corporation and Boss II, LLC, or (v) as part of or in connection
with the Merger.
3. The term "Acquisition Date" means the date on which the Related Person
became a Related Person.
4. The term "Related Person" means any person (other than the Corporation
or any Subsidiary) who or which is the beneficial owner, directly or indirectly,
of five percent or more of the voting power of the then outstanding Voting
Stock.
5. The term "Tender Offer" means any tender offer for, or request or
invitation for tenders of, Voting Stock, within the meaning of Section 14(d)(1)
of the Securities Exchange Act of 1934, as amended, as in effect at the date of
adoption of this article, and any purchase or series of purchases of Voting
Stock at or above then prevailing market prices for such Voting Stock pursuant
to which more than five percent of the outstanding Voting Stock is acquired in
any two-year period.
6. The term "Merger" means the merger contemplated by the Agreement and
Plan of Merger dated November 2, 1999, by and between Group Maintenance America
Corp. and Building One Services Corporation as amended.
-28-
7. Notwithstanding any other provisions of these Articles of
Incorporation or any provision of law which might otherwise permit a lesser vote
or no vote, but in addition to any affirmative vote of the board of directors
and the holders of any particular class or series of the Voting Stock required
by law or these Articles of Incorporation, to alter, amend or repeal this
Article XIII, as an additional requirement for such action, either (i) the
Continuing Directors, who at the time shall constitute at least a majority of
the Whole Board, shall expressly approve such action by at least an eighty
percent (80%) vote of such Continuing Directors; or (ii) such action shall be
adopted or approved by the affirmative vote of the holders of at least eighty
percent (80%) of the voting power of all of the then-outstanding shares of the
Voting Stock, voting together as a single class.
-29-
ANNEX II
-5-
EXHIBIT 5.8(c)
CERTAIN TEXAS COMPANY OPTION HOLDERS
------------------------------------------------------------------------
OPTION HOLDER GRANT OPTIONS OPTION
DATE GRANTED PRICE
------------------------------------------------------------------------
Art Xxxxxx 10/24/96 14,000 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxxxx 11/13/97* 832 3.0775
------------------------------------------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx 10/24/96 50,000 3.0775
------------------------------------------------------------------------
Xxxxx Xxxxxxx Xxxxxxxx 11/13/97* 6,605 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxx 02/05/97 10,000 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxx 04/28/97 3,600 3.0775
------------------------------------------------------------------------
Xxxxx Xxxxxx 06/01/97 28,000 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 10/24/96 46,000 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxxxxxx 11/13/97* 4,403 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 11/13/97 941 3.0775
------------------------------------------------------------------------
Xxxxx Xxxxxxx 12/01/96 10,000 3.0775
------------------------------------------------------------------------
Xxxxx Xxxxxxx 11/13/97 12,590 3.0775
------------------------------------------------------------------------
Xxxxxxxx Xxxxxx 04/28/97 20,000 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxxxx 10/24/96 28,000 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxxxx 11/13/97* 2,006 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 12/31/96 1,200 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxxx Xxxxxxx 12/31/96 2,400 3.0775
------------------------------------------------------------------------
Xxxxxxx Bay 06/01/97 6,800 3.0775
------------------------------------------------------------------------
Xxxxxx Xxxx 08/01/97 14,469 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxx 10/24/96 40,000 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxx 11/13/97* 4,256 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 10/24/96 40,000 3.0775
------------------------------------------------------------------------
Xxxxxxx Xxxxxxx 11/13/97* 6,898 3.0775
------------------------------------------------------------------------
*Grant relates back to 10/24/96
-94-
