EXHIBIT 10.22
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GROUP MAINTENANCE AMERICA CORP.
AMS ACQUISITION CORP.
MECHANICAL SERVICES, INC.
AND
THE HOLDERS OF THE
OUTSTANDING CAPITAL STOCK
OF
MECHANICAL SERVICES, INC.
August 18, 1997
TABLE OF CONTENTS
Page
1. THE MERGER.......................................................................... 1
1.1 The Merger..................................................................... 1
1.2 Effective Time of the Merger................................................... 1
1.3 Closing........................................................................ 1
1.4 Effects of the Merger.......................................................... 2
1.4.1 At the Effective Time................................................... 2
1.4.2 Effects on the Surviving Corporation.................................... 2
1.5 Written Consents and Other Actions............................................. 3
1.5.1 Unanimous Written Consent of the Shareholders; Other Matters............ 3
1.5.2 Written Consent of the Sole Shareholder of Merger Sub................... 3
1.5.3 All Other Necessary Actions............................................. 3
1.6 Conversion of Stock............................................................ 3
1.6.1 Merger Sub Capital Stock................................................ 3
1.6.2 Cancellation of the Company Treasury Stock.............................. 3
1.6.3 Merger Consideration.................................................... 3
1.7 Exchange of and Payment for Stock.............................................. 4
1.7.1 Delivery of Company Common Stock and Closing Merger Consideration....... 4
1.7.2 Assignments............................................................. 4
1.7.3 Payment In Full Satisfaction of All Rights.............................. 4
1.8 Determination of Closing Merger Consideration.................................. 4
1.8.1 Delivery of IPO Price to Public; Statement.............................. 4
1.9 Post-Closing Determination of Total Merger Consideration....................... 5
1.9.1 Statement............................................................... 5
1.9.2 Review.................................................................. 5
1.9.3 Disputes................................................................ 5
1.9.4 Resolution by Parties................................................... 5
1.9.5 Final Determination..................................................... 5
1.9.6 Expenses................................................................ 6
2. REPRESENTATIONS AND WARRANTIESOF THE COMPANY AND THE SHAREHOLDERS................... 6
2.1 Exhibit 2...................................................................... 6
2.2 Stock Ownership................................................................ 6
2.3 Authority...................................................................... 6
2.4 Consents....................................................................... 6
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3. REPRESENTATIONS AND WARRANTIESOF THE PARENTAND MERGER SUB........................... 7
3.1 Representations and Warranties................................................. 7
3.1.1 Organization............................................................ 7
3.1.2 Capitalization of the Parent............................................ 7
3.1.3 Authority............................................................... 7
3.1.4 Consents................................................................ 7
3.1.5 Defaults................................................................ 7
3.1.6 Investment Company...................................................... 8
3.1.7 Financial Statements.................................................... 8
3.1.8 Taxes................................................................... 8
3.1.9 Full Authority.......................................................... 8
3.1.10 Access................................................................ 8
3.1.11 Disclosure............................................................. 9
3.1.12 Parent Material Adverse Effect......................................... 9
3.1.13 Tax-Free Reorganization................................................ 9
3.2 Representations and Warranties Concerning the Merger Sub....................... 10
3.2.1 Organization and Standing............................................... 10
3.2.2 Capital Structure....................................................... 10
3.2.3 Authority............................................................... 10
4. CERTAIN COVENANTS, AGREEMENTS AND PRE-CLOSING MATTERS 10
4.1 Agreements of the Shareholders to be Effective Upon Closing.................... 10
4.1.1 Covenant Not to Compete................................................. 0
4.1.2 Release................................................................. 11
4.2 Elimination of Expense......................................................... 12
4.3 Audit.......................................................................... 12
4.4 Certain Payables and Receivables............................................... 12
4.5 Purchase of Certain Receivables............................................... 12
4.6 Pre-Closing Covenants and Agreements........................................... 12
4.7 Confidentiality ............................................................... 12
4.8 Tax-Free Reorganization........................................................ 12
4.9 Company Plans.................................................................. 13
4.10 Income Tax Distribution........................................................ 13
5. CONDITIONS PRECEDENT; CLOSING DELIVERIES............................................ 13
5.1 Conditions Precedent to the Obligations of the Parent and Merger Sub........... 13
5.1.1 Accuracy of Representations and Warranties.............................. 13
5.1.2 Performance of Covenants................................................ 13
5.1.3 Legal Actions or Proceedings............................................ 13
5.1.4 Approvals............................................................... 14
5.1.5 Closing Deliveries...................................................... 14
5.1.6 No Casualty, Loss or Damage............................................. 14
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5.1.7 Licenses, etc................................................................ 14
5.1.8 No Material Adverse Change................................................... 14
5.1.9 IPO.......................................................................... 14
5.1.10 Corporate Actions............................................................ 14
5.1.11 Financing.................................................................... 14
5.1.12 Closing of AMS Merger........................................................ 14
5.2 Conditions Precedent to the Obligations of the Shareholders and the Company......... 15
5.2.1 Accuracy of Representations and Warranties................................... 15
5.2.2 Performance of Covenants..................................................... 15
5.2.3 Approvals.................................................................... 15
5.2.4 Closing Deliveries........................................................... 15
5.2.5 Closing of AMS Merger........................................................ 15
5.3 Deliveries by the Shareholders at the Closing....................................... 15
5.3.1 Closing Certificates......................................................... 15
5.3.2 Stock Transfer Restriction Agreement......................................... 15
5.3.3 Employment Agreements........................................................ 15
5.3.4 Lease Agreement.............................................................. 16
5.3.5 Registration Rights Agreement................................................ 16
5.3.6 Opinion of Counsel for the Shareholders and the Company...................... 16
5.3.7 Documents, Stock Certificates................................................ 16
5.3.8 Discharge of Indebtedness, Releases, Etc..................................... 16
5.4 Deliveries by the Parent at the Closing............................................. 16
5.4.1 Closing Certificates......................................................... 17
5.4.2 Registration Rights Agreement................................................ 17
5.4.3 Opinion of Counsel for the Parent and Merger Sub............................. 17
5.4.4 Closing Merger Consideration................................................. 17
6. SURVIVAL, INDEMNIFICATIONS................................................................ 17
6.1 Survival............................................................................ 17
6.2 Indemnification..................................................................... 18
6.2.1 Parent Indemnified Parties................................................... 18
6.2.2 Parent Indemnity............................................................. 18
6.3 Limitations......................................................................... 19
6.4 Procedures for Indemnification...................................................... 19
6.4.1 Notice....................................................................... 19
6.4.2 Legal Defense................................................................ 19
6.4.3 Settlement................................................................... 20
6.4.4 Cooperation.................................................................. 20
6.5 Subrogation......................................................................... 20
7. TERMINATION............................................................................... 20
7.1 Grounds for Termination............................................................. 20
7.1.1 Mutual Consent............................................................... 20
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7.1.2 Optional By the Company.................................................... 20
7.1.3 Optional By the Parent..................................................... 21
7.1.4 Breach By the Parent or Merger Sub......................................... 21
7.1.5 Breach by the Company or any Shareholder................................... 21
7.2 Effect of Termination............................................................. 21
8. MISCELLANEOUS........................................................................... 21
8.1 Notice............................................................................ 21
8.2 Further Documents................................................................. 22
8.3 Assignability..................................................................... 22
8.4 Exhibits and Schedules............................................................ 22
8.5 Sections and Articles............................................................. 22
8.6 Entire Agreement.................................................................. 22
8.7 Headings.......................................................................... 22
8.8 Controlling Law................................................................... 22
8.9 Public Announcements.............................................................. 23
8.10 No Third Party Beneficiaries..................................................... 23
8.11 Amendments and Waivers........................................................... 23
8.12 No Employee Rights............................................................... 23
8.13 Non-Recourse..................................................................... 23
8.14 When Effective................................................................... 23
8.15 Takeover Statutes................................................................ 24
8.16 Number and Gender of Words....................................................... 24
8.17 Invalid Provisions............................................................... 24
8.18 Multiple Counterparts............................................................ 24
8.19 No Rule of Construction.......................................................... 24
8.20 Expenses......................................................................... 24
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LIST OF EXHIBITS
Exhibit 1 ..................................................................................... Determination of Total Consideration
Exhibit 1.5.1 ................................................. Unanimous Written Consent of Shareholders of Mechanical Services,Inc
Exhibit 1.5.2 ......................................................... Written Consent of Sole Shareholder of AMS Acquisition Corp.
Exhibit 1.7 .................................................................................................. Letter of Transmittal
Exhibit 2. ...................................................................................................... Certain Statements
Exhibit 2.2 ...................................................................................... Ownership of Company Common Stock
Exhibit 3.1.4 ........................................................................................... Required Consents - Parent
Exhibit 4.6 ...................................................................................................... Certain Covenants
Exhibit 4.9 ...................................................................................... Company Plans to Remain in Effect
Exhibit 4.10 ............................................................................................... Form of Promissory Note
Exhibit 5.3.2 ................................................................................. Stock Transfer Restriction Agreement
Exhibit 5.3.3 ....................................................... List of Employees to Execute and Deliver Employment Agreements
Exhibit 5.3.3.A ............................................................................................... Employment Agreement
Exhibit 5.3.4 ...................................................................................................... Lease Agreement
Exhibit 5.3.5 ........................................................................................ Registration Rights Agreement
Exhibit 5.3.6 ............................................................... Opinion of Counsel to the Shareholders and the Company
Exhibit 5.3.8 ............................................................................................... Terminated Obligations
Exhibit 5.4.3 ..................................................................................... Opinion of Counsel to the Parent
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INDEX OF DEFINED TERMS
Page
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Affiliate ..................................................................................................... Exhibit 2
Accountants .......................................................................................................... 5
Agreement ............................................................................................................ 1
AMC .................................................................................................................. 11
AMS Merger Agreement ................................................................................................. 14
Ancillary Agreements ...................................................................................... Exhibit 5.3.6
Applicable Corporate Law .............................................................................................. 1
Base Rental ............................................................................................ Exhibit 5.3.4.-B
best lawful efforts ....................................................................................... Exhibit 5.3.5
Cascade Mortgages ............................................................................................. Exhibit 1
Cash Percentage Notice ........................................................................................ Exhibit 1
Central Asset Purchase Agreement .............................................................................. Exhibit 1
Cash Tax Distribution ................................................................................................ 13
Cause ................................................................................................... Exhibit 5.3.3.A
Closing ............................................................................................................... 1
Closing Date .......................................................................................................... 1
Closing Merger Consideration .................................................................................. Exhibit 1
Closing Outstanding Common Stock Number ....................................................................... Exhibit 1
Closing Per Share Cash Amount ................................................................................. Exhibit 1
Closing Per Share Common Stock Amount ......................................................................... Exhibit 1
Code .................................................................................................................. 1
Commission ................................................................................................ Exhibit 5.3.5
Common Stock .............................................................................................. Exhibit 5.3.5
Control ....................................................................................................... Exhibit 2
Confidential Information ................................................................................ Exhibit 5.3.3.A
Company ............................................................................................................... 1
Company Common Stock .................................................................................................. 1
Company Material Adverse Effect ............................................................................... Exhibit 2
Company Related Documents ..................................................................................... Exhibit 2
Converted Share ...................................................................................................... 3
Corporation ................................................................................................... Exhibit 2
Defined Expense Reductions Deficiency ......................................................................... Exhibit 1
Deferred Tax Liability ........................................................................................ Exhibit 1
Disclosure Schedule ........................................................................................... Exhibit 2
Due Date ............................................................................................................. 30
Employee Invention ...................................................................................... Exhibit 5.3.3.A
ERISA ........................................................................................................ Exhibit 2
Exchange Act .............................................................................................. Exhibit 5.3.5
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Express Expense Level Deduction ............................................................................... Exhibit 1
Final Per Share Cash Amount ................................................................................... Exhibit 1
Final Outstanding Common Stock Number ......................................................................... Exhibit 1
GAAP .......................................................................................................... Exhibit 1
GE Capital Leases ............................................................................................. Exhibit 1
GroupMAC ................................................................................................ Exhibit 5.3.3.A
Effective Time ........................................................................................................ 1
Indemnified Party .................................................................................................... 19
Indemnifying Party ................................................................................................... 19
Initial Public Offering ................................................................................... Exhibit 5.3.5
IPO ................................................................................................................... 2
IPO Price to the Public ....................................................................................... Exhibit 1
Investments ................................................................................................... Exhibit 1
Investments ................................................................................................. Exhibit 4.6
Lease .................................................................................................. Exhibit 5.3.4.-A
Long-Term Debt ................................................................................................ Exhibit 1
Losses ............................................................................................................... 18
Merger ................................................................................................................ 1
Merger Sub ............................................................................................................ 1
Minimum Proceeds ...................................................................................................... 2
Net After-Tax Income .......................................................................................... Exhibit 1
Notice of Dispute ..................................................................................................... 5
One Year Holding Period ................................................................................... Exhibit 5.3.2
Operating EBITDA Amount ....................................................................................... Exhibit 1
Other Ownership Interests ..................................................................................... Exhibit 1
Owner's Policies of Title Insurance ......................................................................... Exhibit 4.6
Parent ................................................................................................................ 1
Parent Ancillary Agreement................................................................................. Exhibit 5.4.3
Parent Common Stock ................................................................................................... 1
Parent Financial Statements ........................................................................................... 8
Parent Indemnified Parties............................................................................................ 18
Parent Material Adverse Effect ........................................................................................ 9
Parent Preferred Stock ................................................................................................ 7
Parent Related Documents .............................................................................................. 7
Payee ................................................................................................................ 30
Permitted Exceptions ........................................................................................ Exhibit 4.6
Present Value of Aggregate Option Exercise Price .............................................................. Exhibit 1
Proprietary Rights ............................................................................................ Exhibit 2
Price Notice .......................................................................................................... 4
register, registered, registration ........................................................................ Exhibit 5.3.5
Registration Expenses ..................................................................................... Exhibit 5.3.5
Registrable Securities .................................................................................... Exhibit 5.3.5
Registration Statement ................................................................................................ 7
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SEC ................................................................................................................... 7
Second Year Holding Period ................................................................................ Exhibit 5.3.2
Securities Act ........................................................................................................ 2
Selling Expenses .......................................................................................... Exhibit 5.3.5
Seller Shareholder......................................................................................... Exhibit 5.3.5
Settlement Notice .................................................................................................... 20
Shareholder Related Document........................................................................................... 6
Shareholders .......................................................................................................... 1
Specified Cash Percentage ..................................................................................... Exhibit 1
Specified Stock Percentage .................................................................................... Exhibit 1
Statement of Closing Consideration .................................................................................... 4
Statement of Final Per Share Amounts .................................................................................. 5
Stock Certificate ..................................................................................................... 3
Stockholders .............................................................................................. Exhibit 5.3.2
Stock Transfer Restriction Agreement ...................................................................... Exhibit 5.3.2
Surveys ..................................................................................................... Exhibit 4.6
Survival Period ...................................................................................................... 17
Surviving Corporation ................................................................................................ 1
Tax Notes ............................................................................................................ 13
Tax Returns .................................................................................................. Exhibit 2
Terminated Obligations ............................................................................................... 16
Total Consideration ........................................................................................... Exhibit 1
Working Capital ............................................................................................... Exhibit 1
Working Capital Addition ...................................................................................... Exhibit 1
Working Capital Deduction ..................................................................................... Exhibit 1
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AGREEMENT AND PLAN OF MERGER
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This AGREEMENT AND PLAN OF MERGER (this "Agreement") made effective as of
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August __, 1997, by and among Group Maintenance America Corp., a Texas
corporation (the "Parent"), AMS Acquisition Corp., an Arkansas corporation
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("Merger Sub"), Mechanical Services, Inc., an Arkansas corporation (the
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"Company"), and the undersigned holders of all of the outstanding capital stock
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of the Company (the "Shareholders").
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WHEREAS, the respective Boards of Directors of the Parent, Merger Sub and
the Company have each approved the merger of the Company with and into Merger
Sub (the "Merger") pursuant to this Agreement and the applicable statutes of the
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State of Arkansas, and pursuant to the Merger each issued and outstanding share
of Common Stock, no par value per share, of the Company ("Company Common Stock")
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will be converted into the right to receive certain shares of common stock,
$.001 par value per share, of the Parent ("Parent Common Stock"), and certain
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cash consideration, all as provided herein;
WHEREAS, the Merger has been approved, as required by applicable law, by
the Parent, acting as sole shareholder of Merger Sub, and by the Shareholders,
as the holders of all of the outstanding capital stock of the Company;
WHEREAS, for federal income tax purposes, it is intended that the Merger
shall qualify as a reorganization within the meaning of Section 368(a) of the
Internal Revenue Code of 1986, as amended (the "Code").
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NOW, THEREFORE, in consideration of the premises and the representations,
warranties and agreements herein contained, the parties hereto agree as follows:
1. THE MERGER
1.1 The Merger. Subject to the terms and conditions hereof, and in
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accordance with the Arkansas Business Corporation Act of 1987 (the "Applicable
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Corporate Law") upon the Effective Time (as defined in Section 1.2), the Company
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shall be merged with and into Merger Sub. Merger Sub, as the surviving entity
following the Merger, is sometimes referred to in this Agreement as the
"Surviving Corporation."
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1.2 Effective Time of the Merger. In accordance with the requirements of
----------------------------
applicable law, appropriate Plan of Merger under the Applicable Corporate Law
shall be prepared, executed and submitted for filing with the Secretary of State
of the State of Arkansas immediately following and on the same day as the
Closing (as defined below). The date of such filing is referred to in this
Agreement as the "Effective Time."
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1.3 Closing. The closing of the Merger ("Closing") will take place at
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10:00 a.m. at the offices of Bracewell & Xxxxxxxxx, L.L.P. in Houston, Texas on
a date that is contemporaneous with the closing of the Parent's IPO (as defined
below), but in no event later than December 31, 1997 ("Closing Date"); provided
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that each of the conditions precedent to the obligations of the parties to
effect the Merger set forth in Article 5 of this Agreement are then satisfied or
waived by the applicable party. The parties may agree in writing on another
place for the Closing. At the Closing, the parties will deliver or cause to be
delivered the
documents described in Sections 5.3 and 5.4 below. The term "IPO" means any
underwritten public offering of Parent Common Stock resulting in net cash
proceeds to the Parent of at least the Minimum Proceeds as defined below (other
than any offering pursuant to any registration statement (i) relating to any
capital stock of the Parent or options, warrants or other rights to acquire any
such capital stock issued or to be issued primarily to directors, officers or
employees of the Parent or any of its subsidiaries, (ii) relating to any
employee benefit plan or interest therein, (iii) relating principally to any
preferred stock or debt securities of the Parent, or (iv) filed pursuant to Rule
145 under the Securities Act of 1933, as amended (''Securities Act"), or and
successor or similar provision). The term "Minimum Proceeds" means the
aggregate amount necessary to pay in full (i) all indebtedness of the Parent or
any of its subsidiaries outstanding at the closing of the IPO incurred for
purposes of financing any acquisitions by the Parent or any of its subsidiaries,
(ii) the aggregate redemption prices for the redemption of all of the Parent's
preferred stock outstanding at the closing of the IPO issued by the Parent in
connection with then completed acquisitions by the Parent or any of its
subsidiaries, and (iii) the aggregate cash payable by the Parent or any of its
subsidiaries in connection with all then pending acquisitions.
1.4 Effects of the Merger.
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1.4.1. At the Effective Time. At the Effective Time, (i) the Company
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shall merge with and into Merger Sub and as a result thereof, the separate
existence of the Company shall cease, (ii) the Articles of Incorporation of
Merger Sub, as in effect immediately prior to the Effective Time, shall be the
Articles of Incorporation of the Surviving Corporation, except that the Articles
of Incorporation of Merger Sub shall be amended to provide that the name of the
Surviving Corporation shall be changed to "Mechanical Services, Inc.," (iii) the
Bylaws of Merger Sub as in effect immediately prior to the Effective Time shall
be the Bylaws of the Surviving Corporation, and (iv) the directors and officers
of Merger Sub immediately prior to the Effective Time shall become the directors
and officers of the Surviving Corporation, until the earlier of their
resignation or removal or until their respective successors are duly elected or
appointed, as the case may be.
1.4.2 Effects on the Surviving Corporation. As of and after the
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Effective Time, the Surviving Corporation shall possess all the rights,
privileges, immunities and franchises of a public as well as of a private nature
previously belonging to the Company and Merger Sub; and all property (real,
personal and mixed), and all debts due on whatever account, including
subscriptions to shares, and all other choses in action, and all and every other
interest of or belonging to or due to each of the Company and Merger Sub shall
be transferred to, and vested in, the Surviving Corporation without further act
or deed; and all such property, rights and privileges, powers and franchises and
all and every other interest shall be thereafter the property of the Surviving
Corporation as they were of the Company and Merger Sub; and the title to any
real estate, or interest therein, whether by deed or otherwise, shall not revert
or be in any way impaired by reason of the Merger. The Surviving Corporation
shall be responsible and liable for all the liabilities and obligations of the
Company and Merger Sub, and any claim existing, or action or proceeding pending,
by or against the Company or Merger Sub may be prosecuted against the Surviving
Corporation. Neither the rights of creditors nor any liens upon the property of
the Company or Merger Sub shall be impaired by the Merger, and all debts,
liabilities and duties of each of the Company and Merger Sub shall attach to the
Surviving Corporation, and may be enforced against it to the same extent as if
such debts, liabilities and duties had been incurred or contracted by it, all in
accordance with the Applicable Corporate Law and the terms of this Agreement.
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1.5 Written Consents and Other Actions.
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1.5.1 Unanimous Written Consent of the Shareholders; Other Matters.
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Contemporaneously with the execution hereof, the Shareholders (i) are executing
and delivering to the Company a Unanimous Written Consent in substantially the
form of Exhibit 1.5.1 attached hereto, and (ii) hereby acknowledge that they are
aware of their dissenter's or appraisal rights with respect to the Merger and
their receipt of a copy of the provisions of Subchapter 13 of the Applicable
Corporate Law and have elected not to exercise such rights.
1.5.2 Written Consent of the Sole Shareholder of Merger Sub.
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Contemporaneously with the execution hereof, the Parent is executing and
delivering to Merger Sub a written consent of the sole shareholder of Merger
Sub, in the form of Exhibit 1.5.2 attached hereto, pursuant to the applicable
provisions of the Applicable Corporate Law, adopting this Agreement.
1.5.3 All Other Necessary Actions. In addition to the actions set
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forth in Sections 1.5.1 and 1.5.2, the Parent, Merger Sub and the Company will
take all actions necessary in accordance with the Applicable Corporate Law and
their respective articles of incorporation and bylaws to cause the Merger to be
consummated on, and subject to, the terms set forth in this Agreement and the
Applicable Corporate Law.
1.6 Conversion of Stock. As of the Effective Time, by virtue of the
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Merger and without further action on the part of any holder of shares of Company
Common Stock or any holder of shares of capital stock of Merger Sub:
1.6.1 Merger Sub Capital Stock. Each share of capital stock of Merger
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Sub issued and outstanding at the Effective Time shall remain outstanding and
shall be unchanged at and after the Merger and immediately following the
Effective Time shall constitute all of the issued and outstanding capital stock
of the Surviving Corporation.
1.6.2 Cancellation of the Company Treasury Stock. All shares of
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Company Common Stock that are owned by the Company as treasury stock or by any
of its subsidiaries shall be canceled and retired and shall cease to exist and
no stock of the Parent or other consideration shall be delivered in exchange
therefor.
1.6.3 Merger Consideration. Each share of Company Common Stock (other
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than shares to be canceled in accordance with Section 1.6.2) shall be converted
into the right to receive (i) that number of shares of Parent Common Stock equal
to the Final Per Share Common Stock Amount (as defined in Exhibit 1 attached
hereto), and (ii) cash equal to the Final Per Share Cash Amount (as defined in
Exhibit 1 attached hereto). Each share of Company Common Stock so converted into
the right to receive cash equal to the Final Per Share Cash Amount and shares of
Parent Common Stock equal to the Final Per Share Common Stock Amount
(a "Converted Share") shall, by virtue of the Merger and without any action on
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the part of the holder thereof, at the Effective Time no longer be outstanding
and shall at such time be canceled and retired and shall cease at such time to
exist, and each holder of a certificate which prior to the Effective Time
validly evidenced any such Converted Share (a "Stock Certificate") shall
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thereafter cease to have any rights with respect to such Converted Share,
except, upon the surrender of the Stock Certificate and a duly executed and
completed letter of transmittal in accordance with Section 1.7, the right to
receive such cash and Parent Common Stock at the times and in the manner set
forth herein.
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1.7 Exchange of and Payment for Stock.
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1.7.1 Delivery of Company Common Stock and Closing Merger
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Consideration. Prior to the Closing, the Parent will deliver to each
Shareholder a letter of transmittal, in substantially the form attached hereto
as Exhibit 1.7, to be used for the purpose of surrendering to the Parent Stock
Certificates in exchange for the right to receive the Final Per Share Cash
Amount and the Final Per Share Common Stock Amount for each Converted Share
evidenced by such Stock Certificate. All of the Company Common Stock held by
the Shareholders will be surrendered by the Shareholders to the Parent together
with properly completed and executed letters of transmittal (with each such
signature guaranteed by a commercial bank or notarized by a notary public or
similar official reasonably satisfactory to the Parent), and the Parent shall
cause to be delivered to the Shareholders at the Closing the Closing Per Share
Cash Amount (as defined in Exhibit 1 attached hereto) and the Closing Per Share
Common Stock Amount (as defined in Exhibit 1 attached hereto) applicable to each
of the Converted Shares evidenced by the Stock Certificates properly surrendered
(with properly executed and completed letters of transmittal) by each
Shareholder to the Parent.
1.7.2 Assignments. The assignment, transfer or other disposition of
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record or beneficial ownership of any shares of Company Common Stock may not be
made on or after the date hereof.
1.7.3 Payment In Full Satisfaction of All Rights. The delivery of the
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Closing Per Share Cash Amount and the Closing Per Share Common Stock Amount to
the Shareholders with respect to their Converted Shares shall be deemed to be
payment in full satisfaction of all rights pertaining to the outstanding
Converted Shares except for the right to receive additional shares of Parent
Common Stock and cash pursuant to Section 1.9.
1.8 Determination of Closing Merger Consideration.
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1.8.1 Delivery of IPO Price to Public; Statement. Within five business
------------------------------------------
days after the Parent and its underwriters agree on the initial price to the
public for a share of Parent Common Stock offered in the IPO, as set forth in an
executed underwriting agreement, the Parent shall deliver to the Shareholders a
written notice (the "Price Notice") setting forth such initial price to the
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public and a statement setting forth a calculation of the Closing Outstanding
Common Stock Number (as defined in Exhibit 1 attached hereto), the Closing Per
Share Cash Amount, the Closing Per Share Common Stock Amount and the Closing
Merger Consideration (as defined in Exhibit 1 attached hereto), payable to the
Shareholders at Closing (the "Statement of Closing Consideration"). The initial
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price to the public of a share of Parent Common Stock, as set forth in the Price
Notice, and the Closing Outstanding Common Stock Number, the Closing Per Share
Cash Amount, the Closing Per Share Common Stock Amount and the Closing Merger
Consideration, as set forth in the Statement of Closing Consideration, shall be
final, conclusive and binding for purposes of this Agreement.
1.9 Post-Closing Determination of Total Merger Consideration.
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1.9.1 Statement. No later than 90 days after the Closing, the Parent
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shall deliver to the Shareholders a statement showing the Final Outstanding
Common Stock Number (as defined in Exhibit 1 attached hereto), the Final Per
Share Cash Amount, the Final Per Share Common Stock Amount and the Total Merger
Consideration (as defined in Exhibit 1 attached hereto) (the "Statement of Final
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Per Share
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Amounts"). For purposes of determining the Statement of Final Per Share Amounts,
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the Final Outstanding Common Stock Number, the Final Per Share Cash Amount, the
Final Per Share Common Stock Amount and the Total Consideration shall be
calculated or determined as of the last day of the month immediately preceding
the Closing Date (unless the Closing Date occurs on the last day of the month in
which case the Closing Date shall be used).
1.9.2 Review. After delivery to the Shareholders of the Statement of
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Final Per Share Amounts, the Shareholders and their representatives shall be
afforded the opportunity to review and inspect all of the financial records,
work papers, schedules and other supporting papers relating to the preparation
of the Statement of Final Per Share Amounts, and to consult with the Parent and
its representatives regarding the methods used in the preparation of the
Statement of Final Per Share Amounts.
1.9.3 Disputes. The Final Outstanding Common Stock Number, the Final
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Per Share Cash Amount, the Final Per Share Common Stock Amount and the Total
Merger Consideration as shown on the Statement of Final Per Share Amounts shall
be final, conclusive and binding for purposes of this Agreement, unless the
Shareholders shall deliver to the Parent a written notice of disagreement
("Notice of Dispute") with any item or items in the Statement of Final Per Share
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Amounts within 10 business days following receipt of the Statement of Final Per
Share Amounts, specifying in reasonable detail the nature and extent of such
disagreement; provided, however, that no Notice of Dispute may be given with
respect to any items unless such item involves an amount of $25,000 or more. If
a Notice of Dispute is not properly given within such time, the Final
Outstanding Common Stock Number, the Final Per Share Cash Amount, the Final Per
Share Common Stock Amount and the Total Merger Consideration as set forth in the
Statement of Final Per Share Amounts shall be final, conclusive and binding for
purposes of this Agreement.
1.9.4 Resolution by Parties. If a Notice of Dispute is properly
---------------------
given, the Parent and the Shareholders agree to negotiate in good faith and use
their best efforts to resolve any disagreement with respect to the Statement of
Final Per Share Amounts. If the Parent and the Shareholders shall not reach
such resolution within 30 days following receipt by the Parent of a properly
given Notice of Dispute, the dispute shall be referred to KPMG Peat Marwick
("Accountants"), who shall resolve such dispute within 30 days after its
submission to them. The Parent and the Shareholders (if the dispute is resolved
by them or the Statement of Final Per Share Amounts otherwise becomes final
pursuant hereto without referral to the Accountants) or the Accountants (if a
dispute is resolved by them) shall set forth such resolution in writing and such
writing shall (i) set forth the Final Outstanding Common Stock Number, the Final
Per Share Cash Amount, the Final Per Share Common Stock Amount and the Total
Merger Consideration and (ii) be final, conclusive and binding for purposes of
this Agreement.
1.9.5 Final Determination. Within 10 business days following the final
-------------------
determination of the Final Outstanding Common Stock Number, the Final Per Share
Cash Amount, the Final Per Share Common Stock Amount and the Total Merger
Consideration as provided in this Section 1.9, (i) the Parent shall deliver to
each Shareholder (a) the cash amount, if any, by which the aggregate of the
Final Per Share Cash Amounts payable to such Shareholder, as finally determined
pursuant hereto, exceeds the aggregate of the Closing Per Share Cash Amounts
paid to such Shareholder at the Closing; and (b) the number of shares of Parent
Common Stock, if any, by which the aggregate of the Final Per Share Common Stock
Amounts deliverable to such Shareholder, as finally determined pursuant hereto,
exceeds the aggregate of the Closing Per Share Common Stock Amounts delivered to
such Shareholder at the Closing; or (ii) each Shareholder shall deliver to the
Parent (a) the cash amount, if any, by which the aggregate of the Closing Per
Share Cash
-5-
Amounts paid to such Shareholder at the Closing exceeds the aggregate of the
Final Per Share Cash Amounts payable to such Shareholder as finally determined
pursuant hereto; and (b) the number of shares of Parent Common Stock, if any, by
which the aggregate of the Closing Per Share Common Stock Amounts delivered to
such Shareholder at the Closing exceeds the aggregate of the Final Per Share
Common Stock Amounts deliverable to such Shareholder as finally determined
pursuant hereto.
1.9.6 Expenses. The Parent and the Shareholders shall each pay their
--------
own costs incurred in connection with this Section 1.9, including the fees and
expenses of their respective attorneys and accountants, if any.
2. REPRESENTATIONS AND WARRANTIES
OF THE COMPANY AND THE SHAREHOLDERS
The Company and the Shareholders, jointly and severally, hereby represent
and warrant to the Parent and Merger Sub as follows:
2.1 Exhibit 2. The statements in Exhibit 2 attached hereto are true and
---------
correct.
2.2 Stock Ownership. Each Shareholder owns, beneficially and of record,
---------------
with full power to vote, the number of shares of Company Common Stock set forth
beside such Shareholder's name on Exhibit 2.2 and such shares are so held by the
Shareholder free and clear of all liens, encumbrances and adverse claims
whatsoever.
2.3 Authority. The Shareholder has full right, power, legal capacity and
---------
authority to (i) execute, deliver and perform this Agreement, and all other
documents and instruments referred to herein or contemplated hereby to be
executed, delivered and performed by the Shareholder (each a "Shareholder
-----------
Related Document") and (ii) consummate the transactions contemplated herein and
----------------
thereby. This Agreement has been duly executed and delivered by the
Shareholders and constitutes, and each Shareholder Related Document, when duly
executed and delivered by the Shareholders named as parties therein will
constitute, legal, valid and binding obligations of such Shareholders
enforceable against such Shareholders in accordance with their respective terms
and conditions, except as such enforcement may be limited by bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally and by general principles of equity
(whether applied in a proceeding at law or in equity).
2.4 Consents. No approval, consent, order or action of or filing with any
--------
court, administrative agency, governmental authority or other third party is
required for the execution, delivery or performance by the Shareholders of this
Agreement or any Shareholder Related Document. The execution, delivery and
performance by the Shareholders of this Agreement and any Shareholder Related
Documents do not violate any mortgage, indenture, contract, agreement, lease or
commitment or other instrument of any kind to which any Shareholder is a party
or by which any Shareholder or such Shareholder's assets or properties may be
bound or affected or any law, rule or regulation applicable to any Shareholder
or any court injunction, order or decree or any valid and enforceable order of
any governmental agency in effect as of the date hereof having jurisdiction over
any Shareholder.
-6-
2.5 Access and Due Diligence. The Company and the Shareholders have
------------------------
cooperated fully in permitting the Parent and its representatives to make a full
investigation of the properties, operations and financial conditions of the
Company and have afforded the Parent and its representatives reasonable access
to the offices, buildings, real properties, machinery and equipment, inventory
and supplies, records, files, books of account, tax returns, agreements and
commitments and personnel of the Company.
3. REPRESENTATIONS AND WARRANTIES
OF THE PARENT AND MERGER SUB
3.1 Representations and Warranties. The Parent hereby represents and
------------------------------
warrants to the Shareholders and the Company as follows:
3.1.1 Organization. The Parent is a corporation duly organized,
------------
validly existing and in good standing under the laws of the State of Texas. The
Parent is duly qualified or licensed as a foreign corporation authorized to do
business in all states in which any of its assets or properties may be situated
or where its business is conducted except where the failure to obtain such
qualification or license would not have a Parent Material Adverse Effect (as
defined below).
3.1.2 Capitalization of the Parent. As of the execution date of this
----------------------------
Agreement, the total authorized capital stock of the Parent is as set forth in
the Confidential Information Statement dated August ___, 1997. The outstanding
shares of Parent Common Stock and Preferred Stock, par value $.001 ("Parent
------
Preferred Stock") have been duly and validly issued and are fully paid and non-
---------------
assessable.
3.1.3 Authority. The Parent has the requisite power and authority to
---------
execute, deliver and perform this Agreement and all documents and instruments
referred to herein or contemplated hereby (the "Parent Related Documents") and
------------------------
to consummate the transactions contemplated herein and thereby. This Agreement
has been duly executed and delivered by the Parent and constitutes, and all the
Parent Related Documents, when executed and delivered by the Parent will
constitute, legal, valid and binding obligations of the Parent, enforceable in
accordance with their respective terms and conditions except as such enforcement
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and by
general principles of equity (whether applied in a proceeding at law or in
equity).
3.1.4 Consents. Except as provided on Exhibit 3.1.4, no approval,
--------
consent, order or action of or filing with any court, administrative agency,
governmental authority or other third party is required for the execution,
delivery or performance by the Parent of this Agreement or the Parent Related
Documents or the consummation by the Parent of the transactions contemplated
hereby, except for (i) the filing of the Parent's registration statement with
respect to the IPO ("Registration Statement") with the U.S. Securities and
----------------------
Exchange Commission ("SEC") pursuant to the Securities Act and the SEC's
---
declaration of effectiveness of such Registration Statement and the completion
of all necessary filings required under, and the obtaining of all necessary
consents and approvals required pursuant to, state securities or "blue sky" laws
in connection with the IPO, and (ii) the filing of the Plan of Merger with the
Secretary of State of Arkansas.
3.1.5 Defaults. The Parent is not in default under or in violation of,
--------
and the execution, delivery and performance of this Agreement and the Parent
Related Documents and the consummation by the Parent of the transactions
contemplated hereby and thereby will not result in a default under or in
-7-
violation of (i) any mortgage, indenture, charter or bylaw provision, contract,
agreement, lease, commitment or other instrument of any kind to which the Parent
is a party or by which the Parent or any of its properties or assets may be
bound or affected or (ii) any law, rule or regulation applicable to the Parent
or any court injunction, order or decree, or any valid and enforceable order of
any governmental agency in effect as of the date hereof having jurisdiction over
the Parent, which default or violation prevents the Parent from consummating the
transactions contemplated hereby or is reasonably likely to have a Parent
Material Adverse Effect.
3.1.6 Investment Company. The Parent is not an "investment company" or
------------------
a company "controlled" by an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, or a "holding company," a
"subsidiary company" of a "holding company" or an "affiliate" of a "holding
company" or a "public utility" within the meaning of the Public Utility Holding
Company Act of 1935, as amended.
3.1.7 Financial Statements. The Parent has provided certain financial
--------------------
statements to the Shareholders ("Parent Financial Statements") and such Parent
---------------------------
Financial Statements have been prepared in accordance with GAAP and fairly
present the consolidated financial position, results of operations and cash
flows of the Parent and its then existing consolidated subsidiaries as of the
dates and for the periods indicated, subject to normal year-end adjustments and
any other adjustments described therein or in the notes or schedules thereto.
The books and records of the Parent have been kept in reasonable detail and
accurately and fairly reflect the transactions of the Parent.
3.1.8 Taxes. The Parent has either accrued, discharged or caused to be
-----
discharged, as the same have become due, or the Parent Financial Statements
contain adequate accruals and reserves for, all taxes, interest thereon, fines
and penalties of every kind and character, attributable or relating to the
properties and business of the Parent for the period covered by the Parent
Financial Statements.
3.1.9 Full Authority. The Parent has the corporate power and authority
--------------
and has obtained all licenses, permits, qualifications, and other documentation
(including permits required under applicable Environmental Law, as defined in
Exhibit 2) necessary to own and/or operate its businesses, properties and assets
and to carry on its businesses as being conducted on the date of this Agreement,
except such licenses, permits, qualifications or other documentation, the
failure to obtain which is not reasonably likely to result in a Parent Material
Adverse Effect, and such businesses are now being conducted and such assets and
properties are being owned and/or operated in compliance with all applicable
laws (including Environmental Law), ordinances, rules and regulations of any
governmental agency of the United States, any state or political subdivision
thereof, or any foreign jurisdiction, all applicable court or administrative
agency decrees, awards and orders and all such licenses, permits, qualifications
and other documentation, except where the failure to comply will not have a
Parent Material Adverse Effect, and there is no existing condition or state of
facts that would give rise to a violation thereof or a liability or default
thereunder that is reasonably likely to have a Parent Material Adverse Effect.
3.1.10 Access. The Parent has cooperated fully in permitting the
------
Shareholders and their representatives to make a full investigation of the
properties, operations and financial condition of the Parent and has afforded
the Shareholders and their representatives reasonable access to the offices,
buildings, real properties, machinery and equipment, inventory and supplies,
records, files, books of account, tax returns, agreements and commitments and
personnel of Parent.
-8-
3.1.11 Disclosure. No representation or warranty by the Parent in
----------
this Agreement, and no statement contained in any certificate delivered by the
Parent to the Shareholders pursuant to this Agreement, contains any untrue
statement of a material fact or omits any material fact necessary in order to
make the statements herein or therein, in light of the circumstances under which
they are or were made, not misleading.
3.1.12 Parent Material Adverse Effect. The term "Parent Material
------------------------------ ---------------
Adverse Effect" shall mean an adverse effect on the properties, assets,
--------------
financial position, results of operations, long-term debt, other indebtedness,
cash flows or contingent liabilities of the Parent and its consolidated
subsidiaries, taken as a whole, in an amount of $100,000 or more.
3.1.13 Tax-Free Reorganization. With respect to the qualification
-----------------------
of the Merger as a reorganization within the meaning of Section 368(a) of the
Code:
(i) The Parent has no plan or intention to sell, exchange or
otherwise dispose or liquidate the Surviving Corporation, to merge the
Surviving Corporation with or into any other corporation, to sell or
otherwise dispose of its Surviving Corporation Common Stock except for
transfers of Surviving Corporation Common Stock to corporations of which
the Parent has control (within the meaning of Section 368(a) of the Code)
at the time of such transfer, or to cause the Surviving Corporation to sell
or otherwise dispose of any of its assets or of any assets acquired in the
Merger, except for dispositions made in the ordinary course of business or
transfers of assets to a corporation of which the Surviving Corporation has
control (within the meaning of Section 368(a) of the Code) at the time of
such transfer .
(ii) The Parent has no plan or intention to cause the Surviving
Corporation, after the Merger, to issue additional shares of its stock that
would result in the Parent losing control of the Surviving Corporation
within the meaning of Section 368(c) of the Code.
(ii) Following the Merger, the Surviving Corporation will
continue the Company's historic business or use a significant portion of
its historic business assets in a business.
(iv) Except as provided in Section 8.20 below, if the Merger is
effected, the Parent and Merger Sub will each pay their respective
expenses, if any, incurred in connection with the Merger.
(v) The Parent Common Stock that will be issued in connection
with the Merger is voting stock within the meaning of Section 368(c) of the
Code.
(vi) At the Effective Time, neither the Parent nor Merger Sub
will have any outstanding warrants, options, convertible securities, or any
other right pursuant to which any person could acquire stock in the Parent
or Merger Sub which, if exercised or converted, would affect the Parent's
acquisition or retention of control of the Surviving Corporation.
(vi) Neither the Parent nor Merger Sub is an investment company
as defined in Section 368(a)(2)(F) of the Code.
-9-
(vii) None of the Parent Common Stock received by the Shareholders
as a part of the Total Merger Consideration will be separate consideration
for, or allocable to, any employment agreement.
(ix) Neither the Parent nor Merger Sub is under the jurisdiction
of a court in a case under Title 11 of the United States Code, or a
receivership, foreclosure, or similar proceeding in a federal or state
court.
3.2 Representations and Warranties Concerning the Merger Sub.
--------------------------------------------------------
The Parent and Merger Sub, jointly and severally, hereby represent and warrant
to the Shareholders and the Company as follows:
3.2.1 Organization and Standing. Merger Sub is a corporation duly
-------------------------
incorporated, validly existing and in good standing under the laws of the State
of Arkansas.
3.2.2 Capital Structure. The authorized capital stock of Merger
-----------------
Sub consists of 5,000 shares of common stock, par value $.01 per share, 1,000 of
which are validly issued and outstanding, fully paid and nonassessable and are
owned by the Parent free and clear of all liens, encumbrances and adverse
claims.
3.2.3 Authority. Merger Sub has the corporate power and authority
---------
to execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement,
the performance by Merger Sub of its obligations hereunder and the consummation
of the transactions contemplated hereby have been duly authorized by its Board
of Directors and the Parent as its sole shareholder, and, except for the
corporate filings required by state law, no other corporate proceedings on the
part of Merger Sub are necessary to authorize this Agreement and the transaction
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Merger Sub and (assuming the due authorization, execution and
delivery hereof by the Company) constitutes a valid and binding obligation of
Merger Sub enforceable against Merger Sub in accordance with its terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or other similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity (whether applied in a proceeding
at law or in equity) .
4. CERTAIN COVENANTS, AGREEMENTS AND PRE-CLOSING MATTERS
4.1 Agreements of the Shareholders to be Effective Upon Closing. Effective
-----------------------------------------------------------
upon Closing, and without further action on the part of any party or other
person, the Shareholders covenant and agree as follows:
4.1.1 Covenant Not to Compete.
-----------------------
(i) For the considerations specified in this Agreement and in
recognition that the covenants by the Shareholders in this Section are a
material inducement to the Parent to enter into and perform this Agreement,
each Shareholder agrees that for the period from the Closing Date to the
later to occur of (a) the date which is five years after the Closing Date
or (b) the date which is two years following any termination of such
Shareholder's employment with the Company, such Shareholder will not
represent, engage in, carry on, or have a financial interest in, directly
or
-10-
indirectly, individually, as a member of a partnership or limited liability
company, equity owner, shareholder (other than as a shareholder of less
than one percent of the issued and outstanding stock of a publicly-held
company whose gross assets exceed $100 million), investor, officer,
director, trustee, manager, employee, agent, associate or consultant engage
in any business that involves indoor air quality, heating, ventilation, air
conditioning, appliance, mechanical construction, plumbing, electrical
contracting or sewer cleaning products or services within a 100 mile radius
of the cities of Little Rock, Arkansas and Fayetteville, Arkansas;
provided, however that Xxxxx Xxxxxxx and his affiliates, Arkansas
Mechanical Contractors, Inc., d/b/a Hillcrest Plumbing and Heating ("AMC"),
may continue to engage in the mechanical contracting and plumbing service
businesses so long as (a) neither Xx. Xxxxxxx nor any of his affiliates
market heating, ventilation or air conditioning maintenance and/or repair
services of the nature marketed by the Parent or any of its affiliates
within a 100 miles radius of the cities of Little Rock, Arkansas, and
Fayetteville, Arkansas, and Xx. Xxxxxxx and his affiliates refer any such
marketing opportunities to the Parent and its affiliates, and (b) Xx.
Xxxxxxx and his affiliates do not solicit or bid on any commercial
mechanical construction project if the Parent or any of its affiliates have
intend to bid on such project and so notify Xxxxxxx or AMC within thirty
(30) days after its receipt of the solicitation for bids, unless Xxxxxxx or
AMC have an existing or long-term relationship with the owner of such
project.
(ii) Each Shareholder agrees that the limitations set forth
herein on such Shareholder's rights to compete with the Parent and its
affiliates as set forth in clause (i) are reasonable and necessary for the
protection of Parent and its affiliates. In this regard, each Shareholder
specifically agrees that the limitations as to period of time and
geographic area, as well as all other restrictions on such Shareholder's
activities specified herein, are reasonable and necessary for the
protection of the Parent and its affiliates. Each Shareholder agrees that,
in the event that the provisions of this Section should ever be deemed to
exceed the scope of business, time or geographic limitations permitted by
applicable law, such provisions shall be and are hereby reformed to the
maximum scope of business, time or geographic limitations permitted by
applicable law.
(iii) Each Shareholder agrees that the remedy at law for any
breach by such Shareholder of this Section 4.1.1 will be inadequate and
that the Parent shall be entitled to injunctive relief.
4.1.2 Release. Effective as of the Effective Time, each
-------
Shareholder does hereby (i) release, acquit and forever discharge the Surviving
Corporation from any and all liabilities, obligations, claims, demands, actions
or causes of action arising from or relating to any event, occurrence, act,
omission or condition occurring or existing on or prior to the Effective Time,
including, without limitation, any claim for indemnity or contribution from the
Surviving Corporation in connection with the obligations or liabilities of such
Shareholder hereunder, except for salary and benefits payable to such
Shareholder as an employee in the ordinary course of business; (ii) waive all
breaches, defaults or violations of any agreement applicable to the Company
Common Stock and agree that any and all such agreements are terminated as of the
Effective Time, and (iii) waive any and all preemptive or other rights to
acquire any shares of capital stock of the Company and release any and all
claims arising in connection with any prior default, violation or failure to
comply with or satisfy any such preemptive or other rights.
4.2 Elimination of Expense. Prior to the Closing, the Shareholders
----------------------
will produce evidence to the satisfaction of the Parent and its lenders that the
expenses of the Company as described in Attachment A,
-11-
Part 2, of the Letter of Intent between the Parent and the Shareholders dated
May 30, 1997 have been eliminated.
4.3 Audit. Prior to Closing, the Accountants shall complete an
-----
audit of the Company for the fiscal year ended December 31, 1996 and for the
period from such date through June 30, 1997 and such additional audit and/or
review work as may be requested by the Parent through and including the Closing
Date and provide its report to the Parent and the Shareholders.
4.4 Certain Payables and Receivables. On or prior to Closing, the
--------------------------------
Shareholders shall pay in full in cash all accounts receivable, notes receivable
and advances payable by any Shareholder to the Company and the Company shall pay
in full in cash all accounts payable, notes payable and advances payable (except
any Tax Note (as defined) which shall be paid according to their terms) by the
Company to any Shareholder.
4.5 Purchase of Certain Receivables. If any accounts receivable
-------------------------------
included in current assets of the Company for purposes of determining Working
Capital (as defined in Exhibit 1) remain unpaid in full for 60 days or more
after the Closing, the Shareholders shall, upon written request by the Surviving
Corporation made within 90 days after the Closing, purchase the same from the
Surviving Corporation, without recourse, for the uncollected amount thereof.
4.6 Pre-Closing Covenants and Agreements. The Shareholders and the
------------------------------------
Company jointly and severally agree as set forth in Exhibit 4.6 attached
hereto.
4.7 Confidentiality. Prior to the Effective Time, none of the
---------------
Parent, Merger Sub, the Company or any Shareholder will disclose the terms of
this Agreement or the Merger to any person other than their respective
directors, officers, agents or representatives, except as otherwise provided
herein or unless required by law. The Company may make appropriate disclosures
of the general nature of the Merger to its employees, vendors and customers to
protect the Company's goodwill and to facilitate the Closing. The Parent and
Merger Sub may disclose pertinent information regarding the Merger to its
existing and prospective investors, lenders, or investment bankers or financial
advisors for the purpose of obtaining financing, including, without limitation,
financing related to the IPO or other offerings of its securities, and may
describe this Agreement and the transactions contemplated hereby in any
registration statement filed by the Parent under the Securities Act and in
reports filed by the Parent under the Securities Exchange Act of 1934, and may
file this Agreement as an exhibit to any thereof. The Parent may also make
appropriate disclosures of the general nature of the Merger and the identity,
nature and scope of the Company's operations to prospective acquisition
candidates in connection with the Parent's efforts to effect additional
acquisitions. Each party will have mutual approval rights with respect to
written employee presentations concerning the prospective merger.
4.8 Tax-Free Reorganization. Unless the other parties shall
----------------------
otherwise agree in writing, none of the Shareholders, the Parent, Merger Sub,
the Company or the Surviving Corporation shall knowingly take or fail to take
any action, that would jeopardize the qualification of the Merger as a
reorganization withing the meaning of Section 368(a) of the Code.
4.9 Company Plans. Except as otherwise contemplated by this
-------------
Agreement, the Company Plans (as defined in Exhibit 2) described on Exhibit 4.9
in effect at the date of this Agreement will remain in effect unless otherwise
determined by the Parent after the Effective Time.
-12-
4.10 Income Tax Distribution. Prior to the Closing, the Shareholders
-----------------------
may cause the Company to pay to the Shareholders as a dividend and as a
distribution of accumulated S Corporation earnings of all tax periods through
the Effective Time a cash amount, which may be reasonably estimated, equal to
the net taxable income of the Company as determined for Federal income tax
purposes for the Company as an S Corporation less any prior distributions made
by the Company to the Shareholders with respect to such earnings ("Cash Tax
Distribution"). In the event that there is insufficient cash of the Company to
make the Cash Tax Distribution either in whole or in part, the Company may issue
short term notes payable to the Shareholders in amounts equal to the amount of
the Cash Tax Distribution less the amount of cash actually distributed to the
Shareholders as part of the Cash Tax Distribution ("Tax Notes") in the form of
Exhibit 4.10. The Tax Notes, if issued, shall (i) be issued prior to the
Effective Time, (ii) bear interest at a rate not to exceed six percent (6%) per
annum, (iii) provide that the principal and all accrued interest shall be due
and payable six (6) months after the date of the Tax Notes, and (iv) impose no
prepayment penalty. Notwithstanding the actual due date of such notes, the Tax
Notes shall be treated as Long Term Debt for purposes of the determination of
the Total Consideration in Exhibit 1 hereto. All cash payments of the Cash Tax
Distribution and all amounts of any Tax Notes shall be taken into account in
calculating the Closing Merger Consideration regardless of whether such payments
were made, or any Tax Notes were issued, after the Measurement Month Date used
for purposes of such calculation (through a reduction of Working Capital or
increase in Long Term Debt, as applicable).
5. CONDITIONS PRECEDENT; CLOSING DELIVERIES
5.1 Conditions Precedent to the Obligations of the Parent and Merger Sub.
--------------------------------------------------------------------
The obligations of the Parent and Merger Sub to effect the Merger under this
Agreement are subject to the satisfaction of each of the following conditions,
unless waived by the Parent in writing to the extent permitted by applicable
law:
5.1.1 Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties of the Shareholders and the Company contained in
this Agreement, in Exhibit 2 and the Disclosure Schedule referred to therein and
the other Exhibits provided by the Shareholders or the Company pursuant to this
Agreement or in any closing certificate or document delivered to the Parent
pursuant hereto shall be true and correct at and as of the Closing Date as
though made at and as of that time other than such representations and
warranties as are specifically made as of another date, and the Shareholders and
the Company shall each have delivered to the Parent and Merger Sub a certificate
to that effect.
5.1.2 Performance of Covenants. The Shareholders and the Company
------------------------
shall have performed and complied with all covenants of this Agreement to be
performed or complied with by them at or prior to the Closing Date, and the
Shareholders and the Company shall each have delivered to the Parent and Merger
Sub a certificate to that effect.
5.1.3 Legal Actions or Proceedings. No legal action or proceeding
----------------------------
shall have been instituted after the date hereof against the Company or against
the Parent or Merger Sub arising by reason of the acquisition of the Company
pursuant to this Agreement, which is reasonably likely (i) to restrain, prohibit
or invalidate the consummation of the transactions contemplated by this
Agreement, (ii) to have a Company Material Adverse Effect or (iii) to have a
Parent Material Adverse Effect after giving effect to the consummation of the
transactions contemplated by this Agreement, and the Shareholders and the
Company shall each have delivered to the Parent and Merger Sub a certificate to
that effect.
-13-
5.1.4 Approvals. The Company and the Shareholders shall have
---------
procured all of the consents, approvals and waivers of third parties or any
regulatory body or authority, whether required contractually or by applicable
law or otherwise necessary for the execution, delivery and performance of this
Agreement (including the Company Related Documents and the Shareholder Related
Documents) by the Company and the Shareholder prior to the Closing Date, and the
Shareholders and the Company shall each have delivered to the Parent and Merger
Sub a certificate to that effect.
5.1.5 Closing Deliveries. All documents required to be executed or
-------------------
delivered at Closing by the Shareholders pursuant to Section 5.3 of this shall
have been so executed and delivered.
5.1.6 No Casualty, Loss or Damage. No casualty, loss or damage
---------------------------
shall have occurred on or prior to the Effective Time to any of the properties
or assets of the Company.
5.1.7 Licenses, etc. The Company shall have obtained all such
-------------
licenses and permits as are legally required for the continued operation of the
business after the Effective Time, except such licenses and permits, the absence
of which will not have a Company Material Adverse Effect.
5.1.8 No Material Adverse Change. Since December 31, 1996, there
--------------------------
shall not have been any event that in the reasonable judgment of the Parent
adversely affects the properties, assets, financial condition, results of
operations, cash flows, businesses or prospects of the Company.
5.1.9 IPO. The Parent shall have completed the IPO on terms
---
acceptable to it, and the net proceeds thereof shall have been received by the
Parent.
5.1.10 Certain Corporate Actions. All necessary director and
-------------------------
shareholder resolutions, waivers and consents required to consummate the
transactions contemplated hereunder shall have been executed and delivered.
5.1.11 Financing. The Parent shall have obtained financing on
---------
terms and in amounts reasonably acceptable to it, to finance the payment of the
cash portion of the aggregate of the Final Per Share Cash Amounts and the
ongoing financing needs of the Surviving Corporation, and such financing shall
be available.
5.1.12 Closing of AMS Merger. The Parent shall have been satisfied
---------------------
that the closing under that certain Agreement and Plan of Merger of even date
herewith among the Parent, AMS Acquisition Corp., Arkansas Mechanical Services,
Inc. and the shareholders of Arkansas Mechanical Services, Inc. (the "AMS Merger
----------
Agreement") has occurred or will occur contemporaneously with or immediately
---------
after the Effective Time.
5.2 Conditions Precedent to the Obligations of the Shareholders and the
-------------------------------------------------------------------
Company. The obligations of the Shareholders and the Company under this
-------
Agreement are subject to the satisfaction of each of the following conditions,
unless waived by the Shareholders and the Company in writing to the extent
permitted by applicable law:
5.2.1 Accuracy of Representations and Warranties. The
------------------------------------------
representations and warranties of the Parent and Merger Sub contained in this
Agreement or in any closing certificate or document delivered
-14-
to the Shareholders or the Company pursuant hereto shall be true and correct on
and as of the Closing Date as though made at and as of that date other than such
representations and warranties as are specifically made as of another date, and
the Parent and Merger Sub shall have delivered to the Shareholders and the
Company a certificate to that effect.
5.2.2 Performance of Covenants. The Parent and Merger Sub shall
------------------------
have performed and complied with all covenants of this Agreement to be performed
or complied with by them at or prior to the Closing Date and the Parent and
Merger Sub shall have delivered to the Shareholders and the Company a
certificate to such effect.
5.2.3 Approvals. The Parent shall have procured all of the
---------
consents, approvals and waivers specified in Exhibit 3.1.4 prior to the Closing
Date, and the Parent shall have delivered to the Shareholders and the Company a
certificate to that effect.
5.2.4 Closing Deliveries. All documents required to be executed
------------------
or delivered at Closing by the Parent pursuant to Section 5.4 of this Agreement
shall have been so executed and delivered .
5.2.5 Closing of AMS Merger. The Shareholders shall have been
---------------------
satisfied that the closing under the AMS Merger Agreement has occurred or will
occur contemporaneously with or immediately after the Effective Time.
5.3 Deliveries by the Shareholders at the Closing. At the Closing,
---------------------------------------------
simultaneously with the deliveries by the Parent specified in Section 5.4 below,
and in addition to any deliveries required to be made by the Shareholders and
the Company pursuant to any other transaction document at the Closing, the
Shareholders shall deliver or cause to be delivered to the Parent the following:
5.3.1 Closing Certificates. The Shareholders and the Company
--------------------
shall deliver the certificates required pursuant to Sections 5.1.1, 5.1.2, 5.1.3
and 5.1.4.
5.3.2 Stock Transfer Restriction Agreement. The Shareholders
------------------------------------
shall execute and deliver a Stock Transfer Restriction Agreement on the Closing
Date, effective as of the Effective Time, substantially in the form set forth in
Exhibit 5.3.2.
5.3.3 Employment Agreements. The persons listed on Exhibit 5.3.3
---------------------
shall execute and deliver an Employment Agreement with the Company on the
Closing Date, effective as of the Effective Time, substantially in the form set
forth in Exhibit 5.3.3A.
5.3.4 Lease Agreement. The Shareholders shall cause the owner of
---------------
the property located at 000 X. Xxx, Xxxxxxxxxxxx, Xxxxxxxx 00000 to execute and
deliver a lease agreement with the Company substantially in the form attached as
Exhibit 5.3.4.
5.3.5 Registration Rights Agreement. The Shareholders shall
-----------------------------
execute and deliver a Registration Rights Agreement at the Closing, effective as
of the Effective Time, substantially in the form set forth in Exhibit 5.3.5
attached hereto.
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5.3.6 Opinion of Counsel for the Shareholders and the Company. The
-------------------------------------------------------
Shareholders shall deliver the favorable opinion of Xxxxxxx, Xxxxxxxx & Heurer,
counsel to the Shareholders and the Company, dated the Effective Time,
substantially in the form and to the effect set forth in Exhibit 5.3.6 attached
hereto.
5.3.7 Documents, Stock Certificates. The Shareholders shall
-----------------------------
execute and deliver, and shall cause the Company to execute and deliver, the
documents, certificates, opinions, instruments and agreements required to be
executed and delivered by the Company or its officers or directors or the
Shareholders at the Closing as contemplated hereby or as may be reasonably
requested by the Parent and shall deliver or cause to be delivered the documents
and evidence required under Section 4. Stock Certificates representing all of
the outstanding Company Common Stock and properly executed and completed letters
of transmittal shall be delivered by the Shareholders to the Parent.
5.3.8 Discharge of Indebtedness, Releases, Etc. The indebtedness
----------------------------------------
of the Company referred to in Exhibit 5.3.8 attached hereto ("Terminated
----------
Obligations") shall be paid in full or refinanced on terms acceptable to the
-----------
Parent, and the Shareholders shall cause all holders of any such Terminated
Obligations to deliver to the Parent, in form reasonably satisfactory to the
Parent and the lenders to the Parent or Merger Sub, such customary releases,
termination statements, consents, approvals or other documents or instruments
required, in the judgment of the Parent, to release and terminate all liens,
security interests, claims, or rights of such holders against the Surviving
Corporation or the Parent or any of their respective assets in connection
therewith.
The consummation of the Closing shall not be deemed to be a waiver by
the Parent or the Surviving Corporation of any of their rights or remedies
against the Shareholders hereunder for any breach of warranty, covenant or
agreement by the Company or the Shareholders herein irrespective of any
knowledge of or investigation made by or on behalf of the Parent or Merger Sub;
provided, however, that if the Company shall disclose in writing to the Parent
prior to the Closing Date a specified breach of a specifically identified
representation, warranty, covenant or agreement of the Company or any
Shareholder herein by the Company or any Shareholder, and requests a waiver
thereof by the Parent, and the Parent shall waive any such specifically
identified breach in writing prior to the Closing Date, the Parent and the
Surviving Corporation, for themselves and for each Parent Indemnified Party (as
defined below) shall be deemed to have waived their respective rights and
remedies hereunder for, and the Shareholders shall have no liability with
respect to, any such specifically identified breach, to the extent so identified
by the Company and so waived by the Parent.
5.4 Deliveries by the Parent at the Closing. At the Closing,
---------------------------------------
simultaneously with the deliveries by the Shareholders specified in Section 5.3
above, and in addition to any other deliveries to be made by the Parent and
Merger Sub pursuant to any other transaction document at the Closing, the Parent
shall deliver or cause to be delivered to the Shareholders the following:
5.4.1 Closing Certificates. The Parent and Merger Sub shall
--------------------
deliver the certificates required pursuant to Sections 5.2.1, 5.2.2 and 5.2.3.
5.4.2 Registration Rights Agreement. The Parent shall execute and
-----------------------------
deliver to the Shareholders a Registration Rights Agreement at the Closing,
effective as of the Effective Time, substantially in the form set forth in
Exhibit 5.3.5.
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5.4.3 Opinion of Counsel for the Parent and Merger Sub. The Parent
------------------------------------------------
shall deliver the favorable opinion of its legal counsel dated the Effective
Time, substantially in the form and to the effect set forth in Exhibit 5.4.3.
5.4.4 Closing Merger Consideration. The Parent shall deliver the
----------------------------
Closing Merger Consideration to the Shareholders.
The consummation of the Closing shall not be deemed to be a waiver by
the Shareholders of any of their rights or remedies hereunder for breach of any
warranty, covenant or agreement herein by the Parent or Merger Sub irrespective
of any knowledge of or investigation with respect thereto made by or on behalf
of any Shareholder; provided, however, that if the Parent shall disclose in
writing to the Shareholders prior to the Closing a specified breach of a
specifically identified representation, warranty, covenant or agreement of the
Parent or Merger Sub contained herein by the Parent or Merger Sub, and requests
a waiver thereof by the Company and the Shareholders, and the Company and the
Shareholders shall waive any such specifically identified breach in writing
prior to the Closing, the Company and the Shareholders shall be deemed to have
waived their rights and remedies hereunder for, and the Parent and Merger Sub
shall have no liability or obligation to the Shareholders or the Company with
respect to, any such specifically identified breach, to the extent so identified
by the Parent and waived by the Company and the Shareholders.
6. SURVIVAL, INDEMNIFICATIONS
6.1 Survival. The representations and warranties set forth in this
--------
Agreement and the other documents, instruments and agreements contemplated
hereby shall survive after the date hereof to the extent provided herein. The
representations and warranties of the Shareholders and the Company herein and in
the Shareholder Related Documents and the Company Related Documents (as defined
in Exhibit 2) other than those of the Shareholders and the Company in Sections
2.2, 2.3, 2.4 and in Sections 2 and 3 of Exhibit 2 shall survive for a period of
36 months after the Closing Date and the representations and warranties of the
Shareholders and the Company contained in Sections 2.2, 2.3, 2.4 and in Sections
2 and 3 of Exhibit 2 shall survive for the maximum period permitted by
applicable law. The representations and warranties of the Parent herein and in
the Parent Related Documents, other than those in Sections 3.1.3 and 3.1.4,
shall survive for a period of 36 months after the Closing Date and the
representations and warranties of the Parent contained in Sections 3.1.3 and
3.1.4 shall survive for the maximum period permitted by applicable law. The
periods of survival of the representations and warranties as stated above in
this Section 6.1 are referred to herein as the "Survival Period." The
---------------
liabilities of the parties under their respective representations and warranties
shall expire as of the expiration of the applicable Survival Period and no claim
for indemnification may be made with respect to any breach of any representation
or warranty, the applicable Survival Period of which shall have expired, except
to the extent that written notice of such breach shall have been given to the
party against which such claim is asserted on or before the date of such
expiration. The covenants and agreements of the parties herein (including but
not limited to Exhibit 4.6) and in other documents and instruments executed and
delivered in connection with the closing of the transactions contemplated hereby
shall survive for the maximum period permitted by law.
6.2 Indemnification.
---------------
6.2.1 Parent Indemnified Parties. Subject to the provisions of
--------------------------
Sections 6.1 and 6.3 hereof, the Shareholders shall indemnify, save and hold
harmless the Parent, the Surviving Corporation, Merger Sub
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and any of their assignees (including lenders) and all of their respective
officers, directors, employees, representatives, agents, advisors and
consultants and all of their respective heirs, legal representatives, successors
and assigns (collectively the "Parent Indemnified Parties") from and against any
--------------------------
and all damages, liabilities, losses, loss of value (including the value of
adverse effects on cash flow or earnings), claims, deficiencies, penalties,
interest, expenses, fines, assessments, charges and costs, including reasonable
attorneys' fees and court costs (collectively "Losses") arising from, out of or
------
in any manner connected with or based on:
(i) the breach of any covenant of the Shareholders or the Company
or the failure by the Shareholders or the Company to perform any obligation
of the Shareholders or the Company contained herein or in any Company
Related Document or Shareholder Related Document;
(ii) any inaccuracy in or breach of any representation or warranty
of the Shareholders contained herein or in any Shareholder Related
Document;
(ii) any inaccuracy in or breach of any representation or warranty
of the Company contained herein or in any Company Related Document;
(iv) indemnification payments made by the Company or the Surviving
Corporation to the Company's present or former officers, directors,
employees, agents, consultants, advisors or representatives in respect of
actions taken or omitted to be taken prior to the Closing; and
(v) any act, omission, occurrence, event, condition or circumstance
occurring or existing at any time on or before the Effective Time and
involving or related to the assets, properties, business or operations now
or previously owned or operated by the Company and not (a) disclosed with
reasonable specificity in the Disclosure Schedule or (b) disclosed in the
Company Financial Statements (as defined in Exhibit 2) or in working
capital or long term debt (in each case as determined for purposes of
calculating the Total Merger Consideration).
6.2.2 Parent Indemnity. Subject to the provisions of Sections 6.1
----------------
and 6.3, the Parent shall indemnify, save and hold harmless the Shareholders and
the Shareholders' heirs, legal representatives, successors and assigns from and
against all Losses arising from, out of or in any manner connected with or based
on:
(i) any breach of any covenant of the Parent or Merger Sub or the
failure by the Parent or Merger Sub to perform any of its obligations
contained herein or in the Parent Related Documents;
(ii) any inaccuracy in or breach of any representation or warranty
of the Parent or Merger Sub contained herein or in the Parent Related
Documents; and
(iii) any act, omission, event, condition or circumstance occurring
or existing at any time after (but not on or before) the Effective Time and
involving or relating to the assets, properties, businesses or operations
of the Company; provided, however, that this clause (iii) shall not apply
to any Losses to the extent that such Losses result from any Shareholder's
acts or omissions after the
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Effective Time as an officer, director and/or employee of the Parent, the
Surviving Corporation and/or any other affiliate of the Parent.
The foregoing indemnities shall not limit or otherwise adversely affect the
Parent Indemnified Parties' rights of indemnity for Losses under Section 6.2.1.
6.3 Limitations. The aggregate liability of the Shareholders under
-----------
Section 6.2.1 (ii) or (iii) shall not exceed the cash amount equal to the Total
Merger Consideration, with the Parent Common Stock being valued at the IPO Price
to the Public for such purpose. The aggregate liability of the Parent under
Section 6.2.2 (ii) shall not exceed the cash amount equal to the Total Merger
Consideration, with the Parent Common Stock being valued at the IPO Price to the
Public for such purpose.
6.4 Procedures for Indemnification.
------------------------------
6.4.1 Notice. The party (the "Indemnified Party") that may be
------ -----------------
entitled to indemnity hereunder shall give prompt notice to any party obligated
to give indemnity hereunder (the "Indemnifying Party") of the assertion of any
------------------
claim, or the commencement of any suit, action or proceeding in respect of which
indemnity may be sought hereunder. Any failure on the part of any Indemnified
Party to give the notice described in this Section 6.4.1 shall relieve the
Indemnifying Party of its obligations under this Article 6 only to the extent
that such Indemnifying Party has been prejudiced by the lack of timely and
adequate notice (except that the Indemnifying Party shall not be liable for any
expenses incurred by the Indemnified Party during the period in which the
Indemnified Party failed to give such notice). Thereafter, the Indemnified Party
shall deliver to the Indemnifying Party, promptly (and in any event within 10
days thereof) after the Indemnified Party's receipt thereof, copies of all
notices and documents (including court papers) received by the Indemnified Party
relating to such claim, action, suit or proceeding.
6.4.2 Legal Defense. The Parent shall have the obligation to
-------------
assume the defense or settlement of any third-party claim, suit, action or
proceeding in respect of which indemnity may be sought hereunder, provided that
(i) the Shareholders shall at all times have the right, at their option, to
participate fully therein, and (ii) if the Parent does not proceed diligently to
defend the third-party claim, suit, action or proceeding within 10 days after
receipt of notice of such third-party claim, suit, action or proceeding, the
Shareholders shall have the right, but not the obligation, to undertake the
defense of any such third-party claim, suit, action or proceeding.
6.4.3 Settlement. The Indemnifying Party shall not be required to
----------
indemnify the Indemnified Party with respect to any amounts paid in settlement
of any third-party suit, action, proceeding or investigation entered into
without the written consent of the Indemnifying Party; provided, however, that
if the Indemnified Party is a Parent Indemnified Party, such third-party suit,
action, proceeding or investigation may be settled without the consent of the
Indemnifying Party on 10 days' prior written notice to the Indemnifying Party if
such third-party suit, action, proceeding or investigation is then unreasonably
interfering with the business or operations of the Company or the Surviving
Corporation and the settlement is commercially reasonable under the
circumstances; and provided further, that if the Indemnifying Party gives 10
days' prior written notice to the Indemnified Party of a settlement offer which
the Indemnifying Party desires to accept and to pay all Losses with respect
thereto ("Settlement Notice") and the Indemnified Party fails or refuses to
-----------------
consent to such settlement within 10 days after delivery of the Settlement
Notice to the Indemnified Party, and such settlement otherwise complies with the
provisions of this Section 6.4, the
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Indemnifying Party shall not be liable for Losses arising from such third-party
suit, action, proceeding or investigation in excess of the amount proposed in
such settlement offer. Notwithstanding the foregoing, no Indemnifying Party will
consent to the entry of any judgment or enter into any settlement without the
consent of the Indemnified Party, if such judgment or settlement imposes any
obligation or liability upon the Indemnified Party other than the execution,
delivery or approval thereof and customary releases of claims with respect to
the subject matter thereof.
6.4.4 Cooperation. The parties shall cooperate in defending any
-----------
such third-party suit, action, proceeding or investigation, and the defending
party shall have reasonable access to the books and records, and personnel in
the possession or control of the Indemnified Party that are pertinent to the
defense. The Indemnified Party may join the Indemnifying Party in any suit,
action, claim or proceeding brought by a third party, as to which any right of
indemnity created by this Agreement would or might apply, for the purpose of
enforcing any right of the indemnity granted to such Indemnified Party pursuant
to this Agreement.
6.5 Subrogation. Each Indemnifying Party hereby waives for itself,
-----------
himself or herself and such Indemnifying Party's affiliates (as defined in
Exhibit 2) any rights to subrogation against any Indemnified Party or such
Indemnified Party's insurers for Losses arising from any third-party claims for
which the Indemnifying Party is liable or against which the Indemnifying Party
indemnifies any Indemnified Party and, if necessary, each Indemnifying Party
shall obtain waivers of such subrogation from its, his or her insurers.
7. TERMINATION
7.1 Grounds for Termination. This Agreement may be terminated at any time
-----------------------
prior to the Closing Date:
7.1.1 Mutual Consent. By the written agreement of the Company and
--------------
the Parent; or
7.1.2 Optional By the Company. By the Company by written notice to
-----------------------
the Parent, if the Closing shall have failed to occur by 5:00 p.m. Houston,
Texas time on December 31, 1997, but only if neither the Company nor any
Shareholder has breached this Agreement or has failed to perform any of their
respective obligations under this Agreement;
7.1.3 Optional By the Parent. By the Parent, by written notice to
----------------------
the Company, if the Closing shall have failed to occur by 5:00 p.m. Houston,
Texas time on December 31, 1997, but only if neither the Parent nor Merger Sub
has breached this Agreement or has failed to perform any of its obligations
under this Agreement;
7.1.4 Breach By the Parent or Merger Sub. By the Company, by
----------------------------------
written notice to the Parent, if either the Parent or Merger Sub has breached
this Agreement or failed to perform any of its obligations under this Agreement;
or
7.1.5 Breach by the Company or any Shareholder. By the Parent, by
----------------------------------------
written notice to the Company, if the Company or any Shareholder has breached
this Agreement or has failed to perform any of their respective obligations
under this Agreement.
-20-
7.2 Effect of Termination. If this Agreement is terminated as permitted
---------------------
under Section 7.1, such termination shall be without liability of any party to
any other party, except that such termination shall be without prejudice to any
and all remedies the parties may have against each other for breach of this
Agreement. If this Agreement is terminated under Section 7.1.4 and the Company
and the Shareholders have not breached this Agreement or failed to perform any
of their obligations under this Agreement, and all of the representations and
warranties made by them herein are true and correct in all material respects,
the Parent shall pay the costs of the Accountants referred to in Section 8.20.
8. MISCELLANEOUS
8.1 Notice. Any notice, delivery or communication required or permitted
------
to be given under this Agreement shall be in writing, and shall be mailed,
postage prepaid, or delivered, to the addresses given below, or sent by telecopy
to the telecopy numbers set forth below, as follows:
To the Company (prior to the Effective Time) or the Shareholders:
Mechanical Services, Inc.
P. X. Xxx 000
X. Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: President
Telecopy: (000) 000-0000
To the Parent or Merger Sub or the Surviving Corporation:
Group Maintenance America Corp.
0000 Xxxx Xxxx Xxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
Attn: President
Telecopy: (000) 000-0000
or other such address as shall be furnished in writing by any such party to the
other parties, and such notice shall be effective and be deemed to have been
given as of the date actually received.
To the extent any notice provision in any other agreement, instrument or
document required to be executed or executed by the parties in connection with
the transactions contemplated herein contains a notice provision which is
different from the notice provision contained in this Section 8.1 with respect
to matters arising under such other agreement, instrument or document, the
notice provision in such other agreement, instrument or document shall control.
8.2 Further Documents. The Shareholders shall, at any time and from
-----------------
time to time after the date hereof, upon request by the Parent and without
further consideration, execute and deliver such instruments or other documents
and take such further action as may be reasonably required in order to perfect
any other undertaking made by the Shareholders hereunder.
8.3 Assignability. The Shareholders shall not assign this Agreement
-------------
in whole or in part without the prior written consent of the Parent, except by
the operation of law. The Parent may assign its rights under
-21-
this Agreement, the Company Related Documents and the Shareholder Related
Documents without the consent of any Shareholder or the Company. After the
Effective Time, the Surviving Corporation may assign its rights under this
Agreement, the Company Related Documents and the Shareholder Related Documents
without the consent of any Shareholder .
8.4 Exhibits and Schedules. The Exhibits and Schedules (and any
-----------------------
appendices thereto) referred to in this Agreement are and shall be incorporated
herein and made a part hereof.
8.5 Sections and Articles. Unless the context otherwise requires, all
---------------------
Sections, Articles and Exhibits referred to herein are, respectively, sections
and articles of, and exhibits to, this Agreement and all Schedules referred to
herein are schedules constituting a part of the Disclosure Schedule.
8.6 Entire Agreement. This Agreement constitutes the full
----------------
understanding of the parties, a complete allocation of risks between them and a
complete and exclusive statement of the terms and conditions of their agreement
relating to the subject matter hereof and supersedes any and all prior
agreements, whether written or oral, that may exist between the parties with
respect thereto. Except as otherwise specifically provided in this Agreement, no
conditions, usage of trade, course of dealing or performance, understanding or
agreement purporting to modify, vary, explain or supplement the terms or
conditions of this Agreement shall be binding unless hereafter made in writing
and signed by the party to be bound, and no modification shall be effected by
the acknowledgment or acceptance of documents containing terms or conditions at
variance with or in addition to those set forth in this Agreement. No waiver by
any party with respect to any breach or default or of any right or remedy and no
course of dealing shall be deemed to constitute a continuing waiver of any other
breach or default or of any other right or remedy, unless such waiver be
expressed in writing signed by the party to be bound. Failure of a party to
exercise any right shall not be deemed a waiver of such right or rights in the
future.
8.7 Headings. Headings as to the contents of particular articles and
--------
sections are for convenience only and are in no way to be construed as part of
this Agreement or as a limitation of the scope of the particular articles or
sections to which they refer.
8.8 CONTROLLING LAW. THE VALIDITY, INTERPRETATION AND PERFORMANCE OF
---------------
THIS AGREEMENT AND ANY DISPUTE CONNECTED HEREWITH SHALL BE GOVERNED AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS EXCEPT TO THE EXTENT
THE APPLICABLE CORPORATE LAW MANDATORILY APPLIES WITH RESPECT THERETO.
8.9 Public Announcements. After the Effective Time, no Shareholder
--------------------
shall make any press release, public announcement, or public confirmation or
disclose any other information regarding this Agreement or the contents hereof.
8.10 No Third Party Beneficiaries. Except as set forth in Article 6,
----------------------------
no person or entity not a party to this Agreement shall have rights under this
Agreement as a third party beneficiary or otherwise.
8.11 Amendments and Waivers. This Agreement may be amended by the
----------------------
Parent, Merger Sub and the Company, by action taken by their Boards of Directors
to the extent permitted by applicable law; provided, however, that no such
amendment shall (i) alter or change any provision of this Agreement, the
-22-
alteration or change of which must be adopted by the holders of capital stock of
the Company under the certificate or articles of incorporation of the Company or
the Applicable Corporate Law, or (ii) alter or change this Section 8.11, unless
each such alteration or change is adopted by the holders of shares of capital
stock of the Company as may be required by the certificate or articles of
incorporation of the Company or the Applicable Corporate Law. Prior to the
Effective Time, all amendments to this Agreement must be by an instrument in
writing signed on behalf of the Parent, Merger Sub, the Company and the
Shareholders. After the Effective Time, all amendments to this Agreement must be
by an instrument in writing signed on behalf of the Parent and the Shareholders.
Any term or provision of this Agreement (other than the requirements for
shareholder approvals) may be waived in writing at any time by the party which
is, or whose shareholders are, entitled to the benefits thereof.
8.12 No Employee Rights. Nothing herein expressed or implied shall
------------------
confer upon any employee of the Company, any other employee or legal
representatives or beneficiaries of any thereof any rights or remedies,
including any right to employment or continued employment for any specified
period, of any nature or kind whatsoever under or by reason of this Agreement,
or shall cause the employment status of any employee to be other than terminable
at will.
8.13 Non-Recourse. No recourse for the payment of any amounts due
------------
hereunder or for any claim based on this Agreement or the transactions
contemplated hereby or otherwise in respect thereof, and no recourse under or
upon any obligation, covenant or agreement of the Parent in this Agreement shall
be had against any incorporator, organizer, promoter, shareholder, officer,
director, employee or representative as such (other than the Shareholders as set
forth herein), past, present or future, of the Parent or of any successor
corporation, whether by virtue of any constitution, statute or rule of law, or
by enforcement of any assessment or penalty or otherwise; it being expressly
understood that all such liability is hereby expressly waived and released as a
condition of, and as a consideration for, the execution of this Agreement.
8.14 When Effective. This Agreement shall become effective only upon
--------------
the execution and delivery of one or more counterparts of this Agreement by each
of the Parent, Merger Sub, the Company and the Shareholders.
8.15 Takeover Statutes. If any "fair price," "moratorium," "control
-----------------
share acquisition" or other form of anti-takeover statute or regulation shall
become applicable to the transactions contemplated hereby, the Parent and the
Company and their respective members of their Boards of Directors shall grant
such approvals and take such actions as are necessary so that the transactions
contemplated by this Agreement may be consummated as promptly as practicable on
the terms contemplated herein and otherwise act to eliminate or minimize the
effects of such statute or regulation on the transactions contemplated herein.
8.16 Number and Gender of Words. Whenever herein the singular number
--------------------------
is used, the same shall include the plural where appropriate and words of any
gender shall include each other gender where appropriate.
8.17 Invalid Provisions. If any provision of this Agreement is held to
------------------
be illegal, invalid, or unenforceable under present or future laws, such
provisions shall be fully severable as if such invalid or unenforceable
provisions had never comprised a part of the Agreement; and the remaining
provisions of the Agreement shall remain in full force and effect and shall not
be affected by the illegal, invalid or unenforceable provision or by its
severance from this Agreement. Furthermore, in lieu of such illegal,
-23-
invalid or unenforceable provision, there shall be automatically as a part of
this Agreement, a provision as similar in terms to such illegal, invalid or
unenforceable provision as may be possible and be legal, valid and enforceable.
8.18 Multiple Counterparts. This Agreement may be executed in a number
---------------------
of identical counterparts. If so executed, each of such counterparts is to be
deemed an original for all purposes and all such counterparts shall,
collectively, constitute one agreement, but, in making proof of this Agreement,
it shall not be necessary to produce or account for more than one such
counterpart.
8.19 No Rule of Construction. All of the parties hereto have been
-----------------------
represented by counsel in the negotiations and preparation of this Agreement;
therefore, this Agreement will be deemed to be drafted by each of the parties
hereto, and no rule of construction will be invoked respecting the authorship of
this Agreement.
8.20 Expenses. Each of the parties shall bear all of their own expenses in
--------
connection with the negotiation and closing of this Agreement and the
transactions contemplated hereby; provided that the Company may pay the costs of
any business broker, legal counsel, accountants or other advisors engaged by the
Shareholders and shall pay the accounting and auditing fees and expenses of the
Accountants for their work required to consummate the transaction provided
herein (to the extent, and only to the extent, that any such payments will not
jeopardize the qualification of the Merger as a reorganization within the
meaning of Section 368(a) of the Code); provided further, that all fees, costs
and expenses incurred or payable by the Company in connection with the
negotiation and closing of this Agreement and the transactions contemplated
hereby shall be included in current liabilities for purposes of determining
Working Capital; and provided further, that the Parent will pay such fees and
expenses of the Accountants under the circumstances described in Section 7.2.
IN WITNESS WHEREOF, this Agreement has been duly executed and delivered on
the date first hereinabove written.
PARENT:
GROUP MAINTENANCE AMERICA CORP.
By:___________________________________________
J. Xxxxxxx Xxxxxxxx, Xx., President
MERGER SUB:
AMS ACQUISITION CORP.
By:__________________________________________
President
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SHAREHOLDERS:
_____________________________________________
Name: Xxxxx Xxxxxxx
_____________________________________________
Name: Xxxxxx Xxxxx
_____________________________________________
Name: Xxxx Xxxxx
_____________________________________________
Name: Xxx XxXxxxxxx
COMPANY:
MECHANICAL SERVICES, INC.
By:__________________________________________
Name:________________________________________
Title:_______________________________________
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