AGREEMENT AND PLAN OF MERGER
AMONG
HELIX TECHNOLOGY CORPORATION
HELIX ACQUISITION CORPORATION,
XXXXXXXXX - XXXXXXXX COMPANY
and
CERTAIN PRINCIPAL STOCKHOLDERS
OF XXXXXXXXX - XXXXXXXX COMPANY
NAMED HEREIN
-----------------------------
Dated as of April 16, 1998
-----------------------------
TABLE OF CONTENTS
Page
SECTION 1 - THE MERGER...................................................... 1
1.1 The Merger.............................................. 1
1.2 Effective Time.......................................... 1
1.3 Effects of the Merger................................... 1
1.4 Articles of Incorporation and Bylaws.................... 2
1.5 Directors and Officers.................................. 2
1.6 Conversion of Stock..................................... 2
1.7 Dissenting Shares....................................... 4
1.8 Exchange of Certificates................................ 4
1.9 No Fractional Shares.................................... 5
1.10 Legends................................................. 5
1.11 Escrow of Shares........................................ 5
1.12 No Liability............................................ 6
1.13 Closing of GPC Transfer Books........................... 6
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF GPC........................... 6
2.1 Organization and Qualification.......................... 6
2.2 Authority to Execute and Perform Agreements............. 6
2.3 Capitalization and Title to Shares...................... 7
2.4 Subsidiaries and Other Affiliates....................... 7
2.5 Financial Statements.................................... 7
2.6 Absence of Undisclosed Liabilities...................... 8
2.7 No Material Adverse Change.............................. 8
2.8 Tax Matters............................................. 9
2.9 Compliance with Laws.................................... 10
2.10 No Breach............................................... 10
2.11 Actions and Proceedings................................. 11
2.12 Contracts and Other Agreements.......................... 11
2.13 Bank Accounts and Powers of Attorney.................... 12
2.14 Properties.............................................. 13
2.15 Intangible Property..................................... 13
2.16 Real Property........................................... 13
2.17 Customers............................................... 15
2.18 Accounts Receivable..................................... 15
2.19 Inventory............................................... 15
2.20 Employee Benefit Plans.................................. 15
2.21 Employee Relations...................................... 16
2.22 Employment Matters...................................... 16
2.23 Employee Conflicts...................................... 16
2.24 Transactions with Management............................ 17
2.25 Insurance............................................... 17
2.26 Brokerage............................................... 17
2.27 Environmental Matters................................... 17
2.28 Year 2000 Compliance.................................... 18
2.29 Disclosure.............................................. 18
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS.... 19
3.1 Authority to Execute and Perform Agreements............. 19
3.2 No Breach............................................... 19
3.3 Title to Shares......................................... 19
3.4 Accuracy of GPC Representations and Warranties.......... 19
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF
HELIX AND ACQUISITION....................................................... 20
4.1 Organization............................................ 20
4.2 Authority to Execute and Perform Agreement.............. 20
4.3 Capitalization.......................................... 20
4.4 SEC Reports............................................. 20
4.5 Financial Statements.................................... 21
4.6 No Material Adverse Change.............................. 21
4.7 Actions and Proceedings................................. 21
4.8 No Breach............................................... 21
SECTION 5 - COVENANTS AND AGREEMENTS........................................ 22
5.1 Conduct of Business..................................... 22
5.2 Corporate Examinations and Investigations............... 23
5.3 Taxes................................................... 24
5.4 Expenses................................................ 24
5.5 Authorization from Others............................... 24
5.6 Consummation of Agreement............................... 24
5.7 Public Announcements and Confidentiality................ 24
5.8 No Solicitation......................................... 25
5.9 Filings Under HSR Act................................... 25
5.10 Stockholder Letter...................................... 25
5.11 Voting of GPC Stock..................................... 25
5.12 Noncompetition Agreements............................... 25
5.13 Patent and Confidential Information Agreements.......... 26
5.14 Incentive Plans Termination and Release................. 26
5.15 Helix SEC Filings....................................... 26
5.16 Publishing of Combined Financial Results................ 26
5.17 Form S-3 Registration................................... 26
5.18 Disclosure Statements................................... 26
5.19 Further Assurances...................................... 27
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF EACH PARTY TO CONSUMMATE THE MERGER...................................... 27
6.1 Approvals............................................... 27
6.2 HSR Act................................................. 27
6.3 Absence of Order........................................ 27
SECTION 7 - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
HELIX AND ACQUISITION TO CONSUMMATE THE MERGER.............................. 27
7.1 Representations, Warranties and Covenants............... 27
7.2 Opinion of Counsel to GPC............................... 27
7.3 Merger Documents........................................ 27
7.4 Dissenting Shares....................................... 27
7.5 Tax Opinion............................................. 28
7.6 Pooling of Interest Opinions............................ 28
7.7 Title Insurance......................................... 28
7.8 Escrow Agreement........................................ 28
7.9 Stockholder Letters..................................... 28
7.10 Noncompetition Agreements............................... 28
7.11 Patent and Confidential Information Agreements.......... 28
7.12 Incentive Plans Termination and Release................. 28
7.13 Officer's Certificate................................... 29
7.14 Secretary's Certificate................................. 29
7.15 Additional Items........................................ 29
SECTION 8 - CONDITIONS PRECEDENT TO THE OBLIGATION OF THE
GPC AND THE PRINCIPAL STOCKHOLDERS TO CONSUMMATE THE MERGER................. 29
8.1 Representations, Warranties and Covenants............... 29
8.2 Officer's Certificate................................... 29
8.3 Opinion of Counsel to Helix............................. 29
8.4 Tax Opinion............................................. 29
8.5 Registration Rights Agreement........................... 30
SECTION 9 - TERMINATION, AMENDMENT AND WAIVER............................... 30
9.1 Termination............................................. 30
9.2 Effect of Termination................................... 31
9.3 Amendment............................................... 31
9.4 Waiver.................................................. 31
SECTION 10 - INDEMNIFICATION................................................ 31
10.1 Survival................................................ 31
10.2 Obligation of GPC and the Stockholders to Indemnify..... 32
10.3 Obligation of Helix and Acquisition to Indemnify........ 32
10.4 Limitations on Indemnification.......................... 32
10.5 Notice and Defense of Claims............................ 33
SECTION 11 - MISCELLANEOUS.................................................. 34
11.1 Notices................................................. 34
11.2 Entire Agreement........................................ 35
11.3 Governing Law........................................... 35
11.4 Binding Effect; No Assignment........................... 35
11.5 Variations in Pronouns.................................. 35
11.6 Counterparts............................................ 35
11.7 Disclosure Schedules.................................... 35
11.8 Arbitration............................................. 35
ANNEX
Annex A -- Amended and Restated Articles of Incorporation of
Xxxxxxxxx-Xxxxxxxx
Company
EXHIBITS
Exhibit A -- Form of Escrow Agreement
Exhibit B -- Form of Stockholder Letter
Exhibit C -- Form of Stockholder Voting Agreement
Exhibit D -- Form of Irrevocable Proxy
Exhibit E-1 -- Form of Non-Disclosure, Non-Competition and
Developments Agreement
Exhibit E2 -- Form of Non-Disclosure, Non-Competition and
Developments Agreement
Exhibit F -- Form of Patent and Confidential Information Agreement
Exhibit G -- Form of Registration Rights Agreement
SCHEDULES
Schedule 1.6(d) -- Shares Deemed Outstanding
Schedule 2.3 -- Capitalization and Title to Shares
Schedule 2.9 -- Compliance with Laws
Schedule 2.12 -- Contracts and Other Agreements
Schedule 2.13 -- Bank Accounts and Powers of Attorney
Schedule 2.16 -- Real Property
Schedule 2.17 -- Customers
Schedule 2.20 -- Employee Benefit Plans
Schedule 2.21 -- Employee Relations
Schedule 2.25 -- Insurance
Schedule 5.11 -- Individuals Executing Stockholder Voting Agreements
and Irrevocable Proxies
Schedule 5.12 -- Stockholders Executing Stockholder Noncompetition
Agreements and Employee Noncompetition Agreements
Schedule 5.13 -- Patent and Confidential Information Agreements
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER dated as of April 16, 1998 (this
"Agreement") is among Helix Technology Corporation ("Helix"), a Delaware
corporation; Helix Acquisition Corporation ("Acquisition"), a Washington
corporation and wholly-owned subsidiary of Helix; Xxxxxxxxx-Xxxxxxxx Company
("GPC"), a Washington corporation; and the stockholders of GPC identified on the
signature pages hereto (the "Principal Stockholders"). The parties wish to
effect the acquisition of GPC by Helix through a merger of Acquisition into GPC
on the terms and conditions hereof. This Agreement is intended to be a "plan of
reorganization" within the meaning of ss.368(a) of the Internal Revenue Code of
1986, as amended (the "Code").
Accordingly, in consideration of the mutual representations, warranties
and covenants contained herein, the parties hereto agree as follows:
SECTION 1 - THE MERGER
1.1 The Merger. Upon the terms and subject to the conditions hereof,
and in accordance with the Washington Business Corporation Act of the State of
Washington (the "WBCA"), Acquisition shall be merged with and into GPC (the
"Merger"). The Merger shall occur at the Effective Time (as defined herein).
Following the Merger, GPC shall continue as the surviving corporation (the
"Surviving Corporation") and be a wholly-owned subsidiary of Helix, and the
separate corporate existence of Acquisition shall cease.
1.2 Effective Time. As soon as practicable after satisfaction or waiver
of all conditions to the Merger, the parties shall cause a certificate of merger
(the "Merger Certificate") to be filed and recorded in Washington in accordance
with Section 23B.11.050 of the WBCA and shall take all such further actions as
may be required by law to make the Merger effective. The Merger shall be
effective at such time as the Merger Certificate is filed with the Secretary of
State of Washington in accordance with the WBCA or at such later time as is
specified in the Merger Certificate (the "Effective Time"). Immediately prior to
the filing of the Merger Certificate, a closing (the "Closing") will be held at
the offices of Xxxxxx & Dodge LLP, Xxx Xxxxxx Xxxxxx, Xxxxxx, XX 00000, (or such
other place as the parties may agree) for the purpose of confirming satisfaction
or waiver of all conditions to the Merger. The Closing shall take place within
three business days after the last occurrence of: (a) the day the Merger is
approved by the stockholders of GPC; or (b) the date of expiration or
termination of any waiting period or extension thereof applicable to the Merger
under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the
"HSR Act"); or such other date as the parties may agree. The date on which the
Closing occurs is referred to herein as the "Closing Date".
1.3 Effects of the Merger. The Merger shall have the effects set forth
in Section 23B.11.060 of the WBCA.
1.4 Articles of Incorporation and Bylaws. The Articles of Incorporation
of GPC in effect immediately prior to the Effective Time shall be amended and
restated as set forth in Annex A attached hereto immediately after the Effective
Time and the Bylaws of Acquisition in effect immediately prior to the Effective
Time shall be the Bylaws of the Surviving Corporation immediately after the
Effective Time.
1.5 Directors and Officers. The directors and officers of Acquisition
immediately prior to the Effective Time shall be the directors and officers of
the Surviving Corporation immediately after the Effective Time, each to hold
office in accordance with the Certificate of Incorporation and Bylaws of the
Surviving Corporation. The Surviving Corporation may designate such other
officers as it determines.
1.6 Conversion of Stock.
(a) At the Effective Time, by virtue of the Merger and without
any action on the part of Helix, Acquisition or GPC:
(i) All shares of GPC Series A Common Stock, no par
value, and Series B Common Stock, no par value (collectively, the "GPC Stock")
outstanding or deemed outstanding immediately prior to the Effective Time, other
than (A) shares held by GPC as treasury stock and (B) Dissenting Shares (as
defined in Section 1.7), shall be converted into and become the right to
receive, in the aggregate, that number of shares (rounded down and subject to
the payment of cash for fractional shares as provided in Section 1.9) of common
stock, $1.00 par value, of Helix ("Helix Common Stock") determined pursuant to
Section 1.6(b) (such shares of Helix Common Stock are referred to hereinafter as
the "Merger Consideration"). The Merger Consideration shall be reduced by the
consideration that would otherwise be allocable pursuant to Section 1.6(c) to
all Dissenting Shares if the holders thereof had not properly exercised rights
under Chapter 23B.13 of the WBCA. Shares of GPC Stock deemed outstanding shall
include all shares of GPC Stock issuable pursuant to any options, warrants,
rights, calls, convertible securities, commitments, agreements or other
arrangements of any character to which GPC is a party or by which it is bound.
(ii) All shares of GPC Stock held at the Effective
Time by GPC as treasury stock shall be canceled and no payment shall be made
with respect thereto.
(iii) All Dissenting Shares shall be handled in
accordance with Section 1.7.
(iv) Each share of common stock of Acquisition,
$.01 par value, outstanding immediately prior to the Effective Time shall be
converted into and become one validly issued, fully paid and nonassessable share
of common stock, $.01 par value, of the Surviving Corporation.
(b) The number of shares of Helix Common Stock constituting
the Merger Consideration shall be two million five hundred thousand (2,500,000)
shares, less the Closing Balance Sheet Adjustment (referred to below) and less
the number of shares of Helix Common Stock resulting from the Incentive Plan
Adjustment (referred to below):
(i) The amount, if any, by which the net worth of GPC
immediately prior to the Effective Time is less than $10,648,547 shall
constitute an adjustment to the Merger Consideration, such adjustment to be
effected by withdrawing from the escrow established under Section 1.11 that
number of shares of Helix Common Stock (valued at $20.00 per share, the "Market
Value") equal in value to such difference (the "Closing Balance Sheet
Adjustment"). For purposes of this determination, the net worth of GPC
immediately prior to the Effective Time shall mean the total assets of GPC less
its total liabilities (including without limitation the accrual of all
distributions on or before the Closing for tax payments (including all taxes due
on the earnings realized through the Closing) and all expenses of the
transaction and any severance or change of control payments payable as a result
of the Merger) as shown on a balance sheet of GPC as of such time (the "Closing
Balance Sheet") prepared in accordance with GAAP applied in a consistent manner
and in the ordinary course of business as per the prior GPC Financial
Statements, with no acceleration of revenue or delay of expenses, as such terms
are defined in Section 2.5. GPC shall prepare and furnish the Closing Balance
Sheet to Helix within five business days after the Closing Date, which shall
become final and binding 20 business days after receipt by Helix unless Helix
delivers its written objection to the Shareholder Representative under the
Escrow Agreement, in the form attached hereto as Exhibit A, within such period.
Helix and the Shareholder Representative shall attempt in good faith to resolve
any such objection. Any objection not so resolved within ten days shall be
resolved by a nationally recognized firm of independent public accountants
(which has not been engaged to serve Helix or GPC within the prior year)
selected by Helix in good faith. The fees and expenses of such firm shall be
paid by Helix, and the determination of such firm shall be final and binding.
(ii) Immediately following the execution of this
Agreement, Helix and GPC shall retain a third party independent compensation
consultant mutually acceptable to them to calculate the equivalent value,
expressed in shares of GPC vested stock, of the outstanding shares of unvested
GPC Stock issued under GPC's Management and Key Employee Incentive Plans (the
"Incentive Plans"). The consultant shall provide Helix and GPC with its
calculation as soon as reasonably practicable. In determining the number of
vested shares of equivalent value, the consultant shall consider among other
relevant value criteria: the risk associated with not achieving the hurdles
established for each Incentive Plan and the extent to which such hurdles for
1998 and 1999 have already been met; the probability of the participants in the
Incentive Plans leaving GPC's employment prior to their shares vesting; the
value of earlier vesting; and the fact that the shares of different participants
would become vested at different times. Subject to the consent of each
participant in the Incentive Plans, the exchange of all unvested shares under
his or her Incentive Plan for vested shares of equivalent value shall be deemed
to occur immediately prior to the Effective Time at which time his or her
Incentive Plan shall terminate. The difference between the aggregate number of
unvested shares exchanged and the aggregate number of vested shares received
shall be referred to herein as the "Incentive Plan Adjustment."
(c) The Merger Consideration shall be allocated among the
holders of shares of GPC Stock outstanding immediately prior to the Effective
Time by multiplying the number of shares of GPC Stock held by each such holder
by the Conversion Ratio.
(d) The "Conversion Ratio" shall be determined in two steps by
first determining the quotient obtained by dividing (i) the two million five
hundred thousand (2,500,000) shares of Helix Common Stock less the Closing
Balance Sheet Adjustment by (ii) the number of shares of GPC Stock outstanding
and deemed outstanding (listed on Schedule 1.6(d)), including all shares of GPC
Stock outstanding under the Incentive Plans prior to the Incentive Plan
Adjustment. This quotient shall then be multiplied times the Incentive Plan
Adjustment in order to determine the number of shares of Helix Common Stock to
be subtracted from said Two Million Five Hundred Thousand (2,500,000) shares of
Helix Common Stock in the calculation of the "Conversion Ratio". The "Conversion
Ratio" shall, therefore, mean the quotient obtained by dividing (i) the two
million five hundred thousand (2,500,000) shares of Helix Common Stock less both
the Closing Balance Sheet Adjustment and less the number of shares of Helix
Common Stock resulting from the Incentive Plan Adjustment calculated as provided
in the preceding two sentences by (ii) the number of shares of GPC Stock
outstanding and deemed outstanding (listed on Schedule 1.6(d)), less the
Incentive Plan Adjustment.
1.7 Dissenting Shares.
(a) Shares of capital stock of GPC held by a stockholder who
has properly exercised dissenters' rights with respect thereto in accordance
with Chapter 23B.13 of the WBCA (collectively, the "Dissenting Shares") shall
not be converted into Merger Consideration. From and after the Effective Time, a
stockholder who has properly exercised such dissenters' rights shall no longer
retain any rights of a stockholder of GPC or the Surviving Corporation, except
those provided under the WBCA.
(b) GPC (i) shall give Helix prompt notice of any written
demands under Chapter 23B.13 of the WBCA with respect to any shares of capital
stock of GPC, any withdrawal of any such demands and any other instruments
served pursuant to the WBCA and received by GPC and (ii) hereby grants to Helix
the right to participate in all negotiations and proceedings with respect to any
demands under Chapter 23B.13 with respect to any shares of capital stock of GPC.
GPC shall cooperate with Helix concerning, and shall not, except with the prior
written consent of Helix, voluntarily make any payment with respect to, or offer
to settle or settle, any such demands.
1.8 Exchange of Certificates. Helix shall authorize one or more persons
to act as Exchange Agent hereunder (the "Exchange Agent"). As soon as
practicable after the Effective Time, Helix shall cause the Exchange Agent to
mail to all former holders of record of GPC Stock instructions for surrendering
their certificates representing GPC Stock in exchange for a certificate or
certificates representing shares of Helix Common Stock. Provided that the holder
of GPC Stock has executed a Stockholder Letter (as defined below), upon
surrender of a GPC Stock certificate for cancellation to the Exchange Agent or
to such other agent or agents as may be appointed by Helix, the holder of such
certificate shall be entitled to receive in exchange therefor (subject to the
escrow deposit required by Section 1.11) a certificate representing that number
of whole shares of Helix Common Stock into which the shares of GPC Stock
theretofore represented by the certificate so surrendered shall have been
converted pursuant to the provisions of this Agreement, and the certificate so
surrendered shall forthwith be canceled. Until surrendered in accordance with
the provisions of this Section 1.8, each GPC Stock certificate (other than each
certificate for shares to be canceled in accordance with Section 1.6(a)(ii) and
each certificate for Dissenting Shares, if any) shall represent for all purposes
shares of Helix Common Stock. Helix Common Stock into which GPC Stock shall be
converted in the Merger shall be deemed to have been issued at the Effective
Time. If any Helix Common Stock certificates are to be issued in a name other
than that in which GPC Stock certificate surrendered is registered, it shall be
a condition of such exchange that the person requesting such exchange shall
deliver to the Exchange Agent all documents necessary to evidence and effect
such transfer and shall pay to the Exchange Agent any transfer or other taxes
required by reason of the issuance of certificates for such shares of Helix
Common Stock in such different name unless such person can establish to the
satisfaction of the Exchange Agent that such tax has been paid or is not
applicable. Signatures on each letter of transmittal effecting a transfer shall
be guaranteed.
1.9 No Fractional Shares. No certificates representing fractional
shares of Helix Common Stock shall be issued, either for delivery to the holder
or to escrow. No fractional interest shall entitle the owner to vote or to any
rights of a security holder. In lieu of fractional shares, each holder of shares
of GPC Stock who would otherwise have been entitled to a fractional share of
Helix Common Stock, will receive an amount in cash (without interest) determined
by multiplying the applicable fraction by the Market Value of one share of Helix
Common Stock.
1.10 Legends. The shares of Helix Common Stock to be issued in the
Merger shall be characterized as "restricted securities" for purposes of Rule
144 under the Securities Act of 1933, and each certificate representing any of
such shares shall bear a legend identical or similar in effect to the following
legend (together with any other legend or legends required by applicable state
securities laws or otherwise):
THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAW, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR
OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES
LAWS, OR AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE.
THESE SECURITIES ARE ALSO SUBJECT TO CERTAIN RESTRICTIONS ON
TRANSFER SET FORTH IN A STOCKHOLDER LETTER AGREEMENT WITH THE
CORPORATION, A COPY OF WHICH CAN BE OBTAINED FROM THE
CORPORATION AT ITS EXECUTIVE OFFICES.
1.11 Escrow of Shares. At the Effective Time, Helix shall deposit two
hundred twenty-five thousand (225,000) shares of the Merger Consideration with
an escrow agent reasonably satisfactory to GPC to be held and disbursed by such
agent in accordance with the form of escrow agreement attached hereto as Exhibit
A (the "Escrow Agreement"). Shares held under the Escrow Agreement shall be
deducted pro rata from the shares allocable to each stockholder of GPC.
1.12 No Liability. Notwithstanding any other provision of this
Agreement, neither the Exchange Agent, Helix or the Surviving Corporation shall
be liable for any amount paid to a public official pursuant to any applicable
abandoned property, escheat or similar law.
1.13 Closing of GPC Transfer Books. At the Effective Time, the stock
transfer books of GPC shall be closed and no transfer of GPC Stock shall
thereafter be made. If, after the Effective Time, certificates representing
shares of GPC Stock are presented to the Surviving Corporation, they shall be
canceled and exchanged for certificates representing Helix Common Stock.
SECTION 2 - REPRESENTATIONS AND WARRANTIES OF GPC
Except as set forth on the disclosure schedule delivered to Helix on
the date hereof (the "GPC Disclosure Schedule"), the section numbers of which
are numbered to correspond to the section numbers of this Agreement to which
they refer, GPC represents and warrants to Helix and Acquisition as set forth
below:
2.1 Organization and Qualification.
(a) GPC is a corporation duly organized, validly existing and
in good standing under the laws of Washington with full corporate power and
authority to own, lease and operate its assets and properties and to carry on
its business as now being and as heretofore conducted. GPC is qualified or
otherwise authorized to transact business as a foreign corporation in all
jurisdictions in which such qualification or authorization is required by law,
except for jurisdictions in which the failure to be so qualified or authorized
would not have a Material Adverse Effect on the assets, properties, business,
prospects, results of operations or financial condition of GPC ("Material
Adverse Effect").
(b) GPC has previously provided to Helix true and complete
copies of the charter and bylaws of GPC as presently in effect, and GPC is not
in default in any material respect in the performance, observation or
fulfillment of its charter or bylaws or other governing instruments. The minute
books of GPC contain true and complete records of all meetings and consents in
lieu of meetings of the Board of Directors (and any committees thereof) and of
the stockholders since the time of GPC's incorporation and accurately reflect in
all material respects all transactions referred to in such minutes and consents
in lieu of meetings. The stock books of GPC are true and complete.
2.2 Authority to Execute and Perform Agreements. GPC has the corporate
power and authority to enter into, execute and deliver this Agreement and,
subject to the approval of this Agreement by GPC's stockholders, to perform
fully its obligations hereunder. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby have been duly
authorized by the Board of Directors of GPC. No action on the part of GPC other
than approval by the stockholders of GPC is necessary to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by GPC and, subject to the foregoing, constitutes a valid and binding
obligation of GPC, enforceable in accordance with its terms.
2.3 Capitalization and Title to Shares.
(a) GPC is authorized to issue 1,000,000 shares of Common
Stock, no par value, divided into two series: (i) Series A Common Stock, no par
value, of which 250,000 shares are authorized and 110,689 shares are issued and
outstanding and (ii) Series B Common Stock, no par value, of which 750,000
shares are authorized and 664,134 shares are issued and outstanding. Such shares
are owned of record by the persons and in the amounts set forth on the GPC
Disclosure Schedule. No other class of capital stock of GPC is authorized or
outstanding. All of the issued and outstanding shares of GPC's capital stock are
duly authorized and are validly issued, fully paid, nonassessable and free of
preemptive rights. None of the issued and outstanding shares of GPC have been
issued in violation of any federal or state law or any preemptive rights or
rights to subscribe for or purchase securities.
(b) GPC has no outstanding rights, subscriptions, warrants,
calls, preemptive rights, options or other agreements of any kind to purchase or
otherwise receive from GPC any shares of the capital stock or any other security
of GPC, or any outstanding securities of any kind convertible into or
exchangeable for such securities. There are no shareholder agreements, voting
trusts, proxies or other agreements, instruments or understandings with respect
to the outstanding shares of capital stock of GPC to which GPC is a party.
(c) GPC does not own beneficially any shares of capital stock
of Helix.
2.4 Subsidiaries and Other Affiliates.
(a) GPC has no Subsidiaries. As used in this Agreement,
"Subsidiary" means any corporation or other legal entity of which GPC or any
Subsidiary owns, directly or indirectly, 50% percent or more of such entities,
stock or other equity interests.
(b) GPC does not directly or indirectly own or have any
investment in the capital stock or other equity interest of, and is not a party
to a partnership or joint venture with, any other person.
2.5 Financial Statements. GPC has previously delivered to Helix the
audited financial statements of GPC for the year ended December 31, 1997 (the
"Audited Financial Statements") and for the two preceding years (including the
footnotes thereto, balance sheets, related statements of operations and cash
flows for the periods then ended). All of such financial statements referred to
in this section are collectively referred to herein as the "GPC Financial
Statements." GPC Financial Statements are true and correct in all material
respects, and have been prepared from, and are in accordance with, the books and
records of GPC and present fairly the financial position and the results of
operations of GPC as of the dates and for the periods indicated, in each case in
accordance with generally accepted accounting principles ("GAAP") consistently
applied throughout the periods involved.
2.6 Absence of Undisclosed Liabilities. As of December 31, 1997, GPC
had no material liabilities of any nature, whether accrued, absolute, contingent
or otherwise (including, without limitation, liabilities as guarantor or
otherwise with respect to obligations of others or liabilities for taxes due or
then accrued or to become due), required to be reflected or disclosed in the
December 31, 1997 balance sheet (the "Audited Balance Sheet") included in the
Audited Financial Statements that were not adequately reflected or reserved
against on such balance sheet. GPC has no such liabilities other than
liabilities (i) adequately reflected or reserved against on the Audited Balance
Sheet included in the Audited Financial Statements, (ii) incurred since December
31, 1997 in the ordinary course of business, (iii) disclosed in this Agreement
or the GPC Disclosure Schedule or (iv) that could not, in the aggregate, have a
Material Adverse Effect on the Business of GPC.
2.7 No Material Adverse Change. Except for changes in the general
business of GPC that are public knowledge or as set forth on the GPC Disclosure
Schedule, since December 31, 1997, there has not been:
(a) any event or circumstance having a Material Adverse Effect
with respect to GPC or any material adverse change in the business of GPC;
(b) any transaction, commitment, contract or agreement entered
into by GPC or any relinquishment by GPC of any contract or other right having a
value of or involving aggregate payments in excess of $50,000;
(c) any redemption or other acquisition of any capital stock
of GPC or any declaration, setting aside, or payment of any dividend or
distribution of any kind with respect to any shares of capital stock of GPC
(except as provided in Section 5.3);
(d) any increase in compensation, bonus or other benefits
payable or to become payable by GPC to any of its directors, officers or
employees, other than regularly scheduled increases in the ordinary course of
business;
(e) any entering into or granting by GPC of any new employment
agreement providing for annual compensation over $50,000, any new employee
benefit, deferred compensation or other similar employee benefit arrangement, or
any new consulting arrangement providing for annual compensation over $50,000
and any grant of any severance or termination rights to any director, officer or
employee of GPC or any increase in benefits payable under existing severance or
termination pay policies or employment agreements;
(f) any change in any accounting method or practice
followed by GPC;
(g) any making by GPC of any loan or advance to any
stockholder, officer, director or consultant or any affiliate or associate of
any of the foregoing (other than expense advances made in the ordinary course of
business), or any other loan or advance otherwise than in the ordinary course of
business;
(h) except for inventory or equipment acquired in the ordinary
course of business, any acquisition by GPC of all or any part of the assets,
properties, capital stock or business of any other person;
(i) any destruction of, damage to or loss of any assets
material to the Business of GPC (whether or not covered by insurance);
(j) labor trouble or claim of wrongful discharge or other
unlawful labor practice or action;
(k) any litigation commenced by or against GPC;
(l) except in the ordinary course of business, any sale,
abandonment or any other disposition of any of GPC's assets or properties; or
(m) any commitment, understanding or agreement by GPC or any
of its directors, officers or employees to do any of the things described in the
preceding clauses (a) through (l).
2.8 Tax Matters
(a) Except as set forth on the GPC Disclosure Schedule, GPC
has filed all tax reports and returns required to be filed by it and paid or
will timely pay all taxes and other charges shown as due on such reports and
returns. GPC is not delinquent in the payment of any material tax assessment or
other governmental charge (including without limitation applicable withholding
taxes). Any provision for taxes reflected in the Audited Financial Statements is
adequate for payment of any and all tax liabilities for periods ending on or
before December 31, 1997 and there are no tax liens on any assets of GPC except
liens for current taxes not yet due.
(b) Except as set forth on the GPC Disclosure Schedule, there
has not been any audit of any tax return filed by GPC and no audit of any such
tax return is in progress and GPC has not been notified by any tax authority
that any such audit is contemplated or pending. GPC knows of no tax deficiency
or claim for additional taxes asserted or threatened to be asserted against it
by any taxing authority and GPC knows of no grounds for any such assessment.
Except as set forth on the GPC Disclosure Schedule, no extension of time with
respect to any date on which a tax return was or is to be filed by GPC is in
force, and no waiver or agreement by GPC is in force for the extension of time
for the assessment or payment of any tax. For purposes of this Agreement, the
term "tax" includes all federal, state, local and foreign taxes or assessments,
including income, sales, gross receipts, excise, use, value added, royalty,
franchise, payroll, withholding, property and import taxes and any interest or
penalties applicable thereto.
(c) GPC has not agreed to, and is not required to, make any
adjustments under Section 481(a) of the Code by reason of a change in accounting
method or otherwise.
(d) At all times since April 1, 1994, GPC has been an S
corporation within the meaning of Section 1361(a)(1) of the Code and has used
the calendar year as it taxable year. Except as set forth on the GPC Disclosure
Schedule, GPC did not conduct any business in any state or political subdivision
in which the disposition of any of its assets including goodwill in a
transaction in which gain or income would be realized would result in the
imposition by that state or political subdivision of a corporate level tax,
except that GPC is subject to taxation under the Colorado state franchise tax
laws. GPC has never acquired any asset, including goodwill, the basis of which
was determined in whole or in part by reference to the basis of the asset in the
hands of a C corporation within the meaning of Section 1361(a)(2) of the Code or
an S corporation subject to the provisions of Section 1374 of the Code or
predecessor provisions thereto. GPC and its stockholders have not taken any
action which will result in the (i) termination or revocation prior to the
Closing of GPC's status as an S corporation within the meaning of Section
1361(a)(1) of the Code or (ii) the imposition of a tax on GPC under the
provisions of Section 1374 of the Code. GPC is not a party to any agreement or
arrangement with its stockholders to make distributions to its stockholder to
pay any tax imposed on the stockholders, except as provided in Section 5.3.
2.9 Compliance with Laws.
(a) Except for those which the failure to have would not have
a Material Adverse Effect, GPC has all licenses, permits, franchises, orders or
approvals of any federal, state, local or foreign governmental or regulatory
body relating to the conduct of its business (collectively, "Permits"); such
Permits are in full force and effect; and no proceeding is pending or, to the
best knowledge of GPC, threatened to revoke or limit any Permit. The GPC
Disclosure Schedule contains a true and complete list of all Permits.
(b) GPC is not in violation of any applicable law, ordinance
or regulation or any order, judgment, injunction, decree or other requirement of
any court, arbitrator or governmental or regulatory body. Since its
organization, GPC has not received notice of, and there has not been any
citation, fine or penalty imposed against GPC for, any such violation or alleged
violation.
2.10 No Breach. Except for (a) the filing of a premerger notification
form pursuant to the HSR Act and (b) the filing of the Merger Certificate with
the State of Washington, the execution, delivery and performance of this
Agreement by GPC and the consummation by GPC of the transactions contemplated
hereby will not (i) violate any provision of the Articles of Incorporation or
Bylaws of GPC; (ii) violate, conflict with or result in the breach of any of the
terms or conditions of, result in modification of the effect of, or otherwise
give any other contracting party the right to terminate, or constitute (or with
notice or lapse of time or both constitute) a default under, any instrument,
contract or other agreement to which GPC is a party or to which it or its assets
or properties is bound or subject; (iii) violate any law, ordinance or
regulation or any order, judgment, injunction, decree or other requirement of
any court, arbitrator or governmental or regulatory body applicable to GPC or by
which any of GPC's assets, properties or securities is bound; (iv) violate any
Permit; (v) require any filing with, notice to, or permit, consent or approval
of, any other governmental or regulatory body; or (vi) result in the creation of
any lien or other encumbrance on the assets, properties or securities of GPC.
2.11 Actions and Proceedings. There are no outstanding orders, awards,
judgments, injunctions, decrees or other requirements of any court, arbitrator
or governmental or regulatory body against GPC or any of its securities, assets
or properties or to the knowledge of GPC any of its officers, directors,
stockholders or key employees. There are no actions, suits, investigations or
claims or legal, administrative or arbitration proceedings pending or, to the
knowledge of GPC, threatened against GPC or any of its officers, directors,
stockholders or key employees. To the knowledge of GPC, there is no fact, event
or circumstance now in existence that reasonably could be expected to give rise
to any such action, suit, claim, proceeding or investigation.
2.12 Contracts and Other Agreements. The GPC Disclosure Schedule sets
forth a list of the following contracts and other agreements to which GPC is a
party or by or to which it or any of its assets or properties are bound or
subject:
(a) any agreement or series of related agreements requiring
aggregate payments by or to GPC of more than $50,000;
(b) any agreement with or for the benefit of any current or
former officer, director, shareholder, employee or consultant of GPC;
(c) any agreement with any labor union or association
representing any employee of GPC;
(d) any agreement for the purchase or sale of materials,
supplies, equipment, merchandise or services that contain an escalation,
renegotiation or redetermination clause or that obligate GPC to purchase all or
substantially all of its requirements of a particular product or service from a
supplier, or for periodic minimum purchases of a particular product or service
from a supplier;
(e) other than in the ordinary course of business, any
agreement for the sale of any of the assets or properties of GPC or for the
grant to any person of any options, rights of first refusal, or preferential or
similar rights to purchase any such assets or properties;
(f) any partnership or joint venture agreement;
(g) any agreement of surety, guarantee or indemnification,
other than agreements in the ordinary course of business with respect to
obligations in an aggregate amount not in excess of $50,000;
(h) any agreement containing covenants of GPC not to compete
in any line of business, in any geographic area or with any person or covenants
of any other person not to compete with GPC or in any line of business of GPC;
(i) any agreement granting or restricting the right of
GPC to use any Proprietary Right;
(j) any agreement with customers or suppliers for the sharing
of fees, the rebating of charges or other similar arrangements;
(k) any distribution or sales representative agreement;
(l) any agreement appointing any agent of GPC;
(m) any agreement with any holder of securities of GPC as such
(including, without limitation, any agreement containing an obligation to
register any of such securities under any federal or state securities laws);
(n) any agreement obligating GPC to deliver services or
product enhancements or containing a "most favored nation" pricing clause;
(o) any agreement relating to the acquisition by GPC of any
operating business or the capital stock of any other person;
(p) any agreement requiring the payment to any person of a
brokerage or sales commission or a finder's or referral fee (other than
arrangements to pay commissions or fees to employees in the ordinary course of
business);
(q) any agreement or note relating to or evidencing
outstanding indebtedness for borrowed money;
(r) any lease, sublease or other agreement under which GPC is
lessor or lessee of any real property or equipment or other tangible property;
(s) any agreement with a change of control provision or
otherwise requiring any consent with respect to the Merger; and
(t) any other material agreement whether or not made in the
ordinary course of business.
True and complete copies of all the contracts and other agreements (and all
amendments, waivers or other modifications thereto) set forth on the GPC
Disclosure Schedule have been furnished to Helix. Each of such contracts is
valid, subsisting, in full force and effect, binding upon GPC, and to the best
knowledge of GPC, binding upon the other parties thereto in accordance with
their terms, and GPC is not in default under any of them, nor, to the best
knowledge of GPC, is any other party to any such contract or other agreement in
default thereunder, nor does any condition exist that with notice or lapse of
time or both would constitute a default thereunder.
2.13 Bank Accounts and Powers of Attorney. The GPC Disclosure Schedule
identifies all bank and brokerage accounts of GPC, whether or not such accounts
are held in the name of GPC, lists the respective signatories therefor and lists
the names of all persons holding a power of attorney from GPC and a summary of
the terms thereof.
2.14 Properties. GPC owns and has good title to all of its assets and
properties reflected as owned on the Audited Balance Sheet, free and clear of
any lien, claim or other encumbrance, except for (A) assets and properties
disposed of, or subject to purchase or sales orders, in the ordinary course of
business since December 31, 1997, (B) liens or other encumbrances securing the
liens of materialmen, carriers, landlords and like persons, all of which are not
yet due and payable, and (C) liens for taxes not yet delinquent.
2.15 Intangible Property.
The GPC Disclosure Schedule sets forth all of the patents,
trademarks, service marks, trade names, franchises, copyrights and inventions,
the location of all information regarding the registration of any of the
foregoing or applications therefor, and all permits, grants and licenses or
other rights relating to any of the foregoing (collectively, the "Proprietary
Rights") that are material to the business of GPC. Except as set forth on the
GPC Disclosure Schedule, GPC has exclusive ownership of all Proprietary Rights
used in its business as presently conducted or to be used in its business as it
is contemplated to be conducted. Except as set forth on the GPC Disclosure
Schedule, GPC has not received any notices of infringement by it of any
Proprietary Rights of others. Except as set forth in on the GPC Disclosure
Schedule, to the best knowledge of GPC, none of the present activities, or
contemplated activities under planning or development, of GPC, or its products
or assets infringe on any Proprietary Rights of others; and GPC is not aware of
any infringement or violation by others of the Proprietary Rights of GPC. Except
as set forth on the GPC Disclosure Schedule, GPC has the right to use, free and
clear of claims or rights of others, all trade secrets, customer lists,
procedures, processes, computer software, and other information required for or
incident to GPC's services or its business as presently conducted or
contemplated to be conducted. GPC's policies and procedures designed to
establish and preserve its ownership of its Proprietary Rights are described on
the GPC Disclosure Schedule. In particular, without limitation of the foregoing,
GPC has (a) affixed appropriate copyright notices to all copies of any original
written material prepared by it and distributed to the public; and (b) disclosed
or made available any confidential information relating to patents, trade
secrets, inventions, know-how and related Proprietary Rights only to (i)
employees or consultants of GPC who required such disclosure or access for the
business purposes of GPC and who have executed written confidentiality
agreements governing their use of confidential information and (ii) as set forth
on the GPC Disclosure Schedule. GPC is not aware of any violation of the
confidentiality of its Proprietary Rights. To the best knowledge of GPC, GPC is
not making unauthorized use of any confidential information or trade secrets of
any person, including without limitation any former employer of any past or
present employees of GPC. To the best knowledge of GPC, none of the activities
of any employees of GPC on behalf of GPC violates any agreements or arrangements
which any such employees have with former employers currently in effect.
2.16 Real Property.
(a) The GPC Disclosure Schedule sets forth a complete list of
all real property owned by GPC (individually, an "Owned Property" and
collectively, the "Owned Properties"). GPC has good and clear record and
marketable fee title to the Owned Properties, free and clear of all mortgages,
liens, security interests, easements, restrictive covenants, rights-of-way and
other encumbrances ("Encumbrances") other than (i) liens that are disclosed on
GPCs Disclosure Schedule; (ii) liens for taxes, fees, levies, duties or other
governmental charges of any kind which are not yet delinquent; (iii) (A)
platting, subdivision, zoning, building and other similar legal requirements,
(B) easements, restrictive covenants, rights-of-way, encroachments and other
similar encumbrances, which are of record, (C) reservations of coal, oil, gas,
minerals and mineral interests, which are of record, (the Encumbrances described
in clauses (i) through (iii) above are hereinafter referred to collectively as
"Permitted Liens"). Without limiting the generality of the foregoing, as
evidenced by the owner's title insurance policies identified in GPCs Disclosure
Schedule, GPC holds fee simple title to each Owned Property subject only to the
matters set forth in such title policies, which matters are set forth on GPCs
Disclosure Schedule. GPC shall cause title to the Owned Properties to be updated
from the effective dates of such title insurance policies to the Closing Date
showing title to the Owned Properties complies with the requirements of this
Section 2.16(a) and Section 7.7.
(b) Each of the Owned Properties and the structures and
improvements thereon have been maintained, operated and used in accordance in
all material respects with all laws, by-laws, ordinances, rules, restrictions,
regulations, orders or codes of all governmental authorities, and all covenants,
conditions and restrictions, public or private, which materially affect each of
the Owned Properties or any part thereof or the business or activity conducted
thereon ("laws and regulations"). All construction on, improvements to, and
alterations of each of the Owned Properties complies with, and each and every
part of the Owned Properties has been maintained and used in accordance with,
all laws and regulations.
(c) The GPC Disclosure Schedule sets forth a complete list of
all real property leased by GPC (individually, a "Leased Property" and,
collectively, the "Leased Properties"). GPC has valid, good and marketable
leasehold interest in the Leased Properties, in each case free and clear of all
Encumbrances, except for Permitted Liens and Encumbrances on the fee interest of
the Leased Properties which do not constitute indebtedness of GPC. To the best
of GPC's knowledge, none of the easements, restrictions or other matters of
record to which such Leased Property is subject prevent or unreasonably or
materially interfere with the use of such Leased Property for the conduct of the
business thereon as heretofore conducted by GPC. GPCs Disclosure Schedule hereto
identifies the parties to and dates of the lease for each material Leased
Property and all addenda, amendments and attachments thereto (each, a "Real
Property Lease"); except as set forth in GPCs Disclosure Schedule, such Real
Property Lease has not been otherwise amended, modified or supplemented by any
written or oral agreement or understanding. Except as set forth on GPCs
Disclosure Schedule, the Merger as contemplated by this Agreement is either
permitted as of right under each Real Property Lease or otherwise does not
require the consent of the landlord under such Real Property Lease; with respect
to each material Real Property Lease for which the landlord's consent is
required, GPC shall obtain such consent prior to the Closing. GPC has accepted
possession of each Leased Property and occupies such leased premises in
connection with the conduct of the business. Each Real Property Lease affords
GPC peaceful and undisturbed possession of the leased premises thereunder. The
landlord under each Real Property Lease has performed, to the satisfaction of
GPC all of the landlord's obligations under such Real Property Lease, and all
fixtures, equipment, improvements and other components of the leased premises
are in good working order and condition so as to be adequate for the conduct of
GPC's business. GPC shall cause the landlord for each Leased Property to deliver
to GPC as of the Closing Date an estoppel certificate that confirms the accuracy
of the foregoing representations.
(d) To GPC's knowledge, there are no eminent domain
proceedings pending or threatened against any Owned Property or Leased Property
(the Owned Properties and the Leased Properties are herein referred to
collectively as the "Real Property").
2.17 Customers. The GPC Disclosure Schedule sets forth the 25 customers
who accounted for the largest sales of GPC during 1997 (the "Customers"). Except
as set forth on the GPC Disclosure Schedule, the relationships of GPC with the
Customers are good commercial working relationships. Except as set forth on the
GPC Disclosure Schedule, no Customer has canceled or otherwise terminated its
relationship with GPC or has decreased materially its usage or purchase of the
services of GPC. Except as set forth on the GPC Disclosure Schedule, GPC does
not know of any plan or intention of any Customer, and has not received any
written threat or notice from any Customer, to terminate, cancel or otherwise
materially and adversely modify its relationship with GPC or to decrease
materially or limit its usage or purchase of the services or products of GPC.
2.18 Accounts Receivable. Subject to the allowances with respect to
accounts receivable set forth on the Closing Balance Sheet, all accounts
receivable reflected on such balance sheet have arisen in the ordinary course of
business of GPC, represent valid and enforceable obligations due to GPC and have
been and are subject to no set-off, counterclaim or future performance
obligation on the part of GPC.
2.19 Inventory. The inventory of GPC is and at the Effective Time will
be in good and merchantable condition and saleable or useable in the manufacture
of saleable finished goods in the ordinary course of business, except for
obsolete or below standard items written off or reserved against in accordance
with GPC's past practices.
2.20 Employee Benefit Plans. The GPC Disclosure Schedule sets forth a
complete list of all stock options, restricted stock, phantom stock, pension,
profit sharing, retirement, deferred compensation, welfare, insurance,
disability, bonus, incentive, vacation pay, severance pay and similar plans,
programs or arrangements, including without limitation all employee benefit
plans as defined in Section 3 of the Employee Retirement Income Security Act of
1974, as amended ("ERISA") (the "Plans") maintained by GPC or its Subsidiaries.
GPC does not maintain or contribute to any "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA, and GPC has not incurred any material liability
under Sections 4062, 4063 or 4201 of ERISA. Each Plan maintained by GPC which is
intended to be qualified under either Section 401(a) or 501(c)(9) of the Code
("Qualified Plans") is so qualified. Each Plan has been administered in
accordance with the terms of such Plan and the provisions of any and all
statutes, orders or governmental rules or regulations, including without
limitation ERISA and the Code, and nothing has been done or omitted to be done
with respect to any Plan that would result in any liability on the part of GPC
or a Subsidiary under Title I of ERISA or Section 4975 of the Code. All reports
required to be filed with respect to all Plans, including without limitation
annual reports on Form 5500, have been timely filed except where the failure to
so file would not have a Material Adverse Effect. No "reportable event" as
defined at Section 4043 of ERISA, other than any such event for which the
thirty-day notice period has been waived, has occurred with respect to any
pension plan subject to Title IV of ERISA. With respect to all pension plans
subject to Title IV of ERISA, such plans have no unfunded benefit liabilities,
all contributions to such plans under the minimum funding requirements of
Section 412 of the Code have been made and all premium payments to the Pension
Benefit Guaranty Corporation with respect to such plans have been made. All
claims for welfare benefits incurred by employees on or before the Closing are
or will be fully covered by third-party insurance policies or programs. Except
for continuation of health coverage to the extent required under Section 4980B
of the Code or as otherwise set forth in this Agreement, there are no
obligations under any welfare plan providing benefits after termination of
employment.
2.21 Employee Relations. GPC has approximately 90 full-time equivalent
employees and generally enjoys good employer-employee relations. GPC is not
delinquent in payments to any of its employees or consultants for any wages,
salaries, commissions, bonuses or other direct compensation for any services
performed by them to the date hereof or amounts required to be reimbursed to
such employees. Except as set forth in the GPC Disclosure Schedule, upon
termination of the employment of any employees, neither GPC nor Helix or the
Surviving Corporation will by reason of the Merger or anything done prior to the
Effective Time be liable to any of such employees for severance pay or any other
payments (other than accrued salary, vacation or sick pay in accordance with
GPC's normal policies). True and complete information as to all current
directors, officers, employees or consultants of GPC, including, in each case,
name, current job title, base salary, bonus potential, commissions and
termination obligations has been previously furnished to Helix.
2.22 Employment Matters. GPC is in compliance in all material respects
with all applicable foreign, federal, state and local laws, rules and
regulations respecting employment, employment practices, terms and conditions of
employment and wages and hours, in each case, with respect to Employees. No work
stoppage or labor strike against GPC is pending or, to the knowledge of GPC,
threatened. GPC is not involved in or, to the knowledge of GPC, threatened with,
any labor dispute, grievance, or litigation relating to labor, safety or
discrimination matters involving any Employee, including, without limitation,
charges of unfair labor practices or discrimination complaints. GPC has not
engaged in any unfair labor practices within the meaning of the National Labor
Relationship Act. GPC is not presently, nor has it been in the past, a party to,
or bound by, (i) any collective bargaining agreement or union contract with
respect to Employees and no collective bargaining agreement is being negotiated
by GPC or (ii) any statutory works council or other agreement, statute, rule or
regulation that mandates employee approval, participation, consultation or
consent with regard to the transactions contemplated hereby.
2.23 Employee Conflicts. Except as set forth on the GPC Disclosure
Schedule, to GPC's knowledge, no employee or consultant of GPC (i) is in
violation of any term of any employment contract, patent disclosure agreement,
non-competition agreement, or any restrictive covenant to a former employer
relating to the right of any such employee or consultant to be employed by GPC
because of the nature of the business conducted or presently proposed to be
conducted by GPC or to the use of trade secrets or proprietary information of
others or (ii) has given notice to GPC nor is GPC otherwise aware, that any such
employee or consultant intends to terminate his or her employment with GPC.
2.24 Transactions with Management. Except as set forth on the GPC
Disclosure Schedule, no officer or director of GPC has (whether directly or
indirectly through another entity in which such person has an interest, other
than as the holder of less than 1% of a class of securities of a publicly traded
company) to the knowledge of GPC, any interest in (i) any property or assets of
GPC (except as a shareholder), (ii) any current competitor, customer or supplier
of GPC, or (iii) any person which is currently a party to any material contract
or agreement with GPC.
2.25 Insurance. The GPC Disclosure Schedule sets forth a list of all
policies or binders of fire, liability, product liability, workmen's
compensation, vehicular, directors' and officers' and other insurance held by or
on behalf of GPC. Such policies and binders are in full force and effect, are
reasonably believed to be adequate for the businesses engaged in by GPC, as
applicable, and are in conformity with the requirements of all leases or other
agreements to which GPC is a party and, to the knowledge of GPC, are valid and
enforceable in accordance with their terms. GPC is not in default with respect
to any provision contained in any such policy or binder nor has GPC failed to
give any notice or present any claim under any such policy or binder in due and
timely fashion. There are no outstanding unpaid claims under any such policy or
binder. GPC has not received notice of cancellation or non-renewal of any such
policy or binder.
2.26 Brokerage. Except for The Xxxxxxx Company, no broker, finder,
agent or similar intermediary has acted on behalf of GPC or any of the Principal
Stockholders in connection with this Agreement or the transactions contemplated
hereby, and other than the fee owed to The Xxxxxxx Company there are no
brokerage commissions, finders' fees or similar fees or commissions payable in
connection herewith based on any agreement, arrangement or understanding with
GPC or any of the Principal Stockholders, or any action taken by any of them.
2.27 Environmental Matters.
(a) Except as set forth on the GPC Disclosure Schedule, no
material amount of any substance that has been designated by an governmental
entity or by applicable federal, state or local law to be radioactive, hazardous
or otherwise to pose an unreasonable danger to human health or the environment,
including, without limitation, PCBs, friable asbestos, petroleum,
urea-formaldehyde and all substances listed as hazardous substances pursuant to
the Comprehensive Environmental Response, Compensation, and Liability Act of
1980, as amended, or defined as a hazardous waste pursuant to the United States
Resource Conservation and Recovery Act of 1976, as amended, and the regulations
promulgated pursuant to said laws, (a "Hazardous Material"), but excluding
office, maintenance, shipping and janitorial supplies, are present as a result
of the actions of GPC, or, to the best knowledge of GPC, as a result of any
actions of any third party or otherwise, in, on or under any property, including
the land and the improvements, ground water and surface water thereof, that GPC
has at any time owned, operated, occupied or leased. No underground storage
tanks are present under any property that GPC at any time owned or occupied. The
GPC Disclosure Schedule lists all locations that GPC formerly owned or leased
where, to the best knowledge of GPC, Hazardous Materials are present in a volume
or concentration that would reasonably be expected to have a Material Adverse
Effect.
(b) GPC has not transported, stored, used, manufactured,
disposed of, released or exposed its employees or others to Hazardous Materials
in violation of any applicable law, nor has GPC disposed of, transported, sold,
or manufactured any product containing a Hazardous Material (collectively
"Hazardous Materials Activities") in violation of any rule, regulation, treaty
or statute promulgated by any governmental entity authorized to prohibit,
regulate or control Hazardous Materials or any Hazardous Material Activity which
would reasonably be expected to have a Material Adverse Effect.
(c) GPC currently holds all environmental approvals, permits,
licenses, clearances and consents (the "Environmental Permits") necessary for
the conduct of GPC's Hazardous Material Activities and other business activities
as such activities are currently being conducted.
(d) No material action, proceeding, revocation proceeding,
amendment procedure, writ, injunction or claim is pending, or to GPC's
knowledge, threatened concerning any Environmental Permit, Hazardous Material
in, on or under any property owned or leased by GPC or any Hazardous Materials
Activity of GPC and there is no fact or circumstance that could involve GPC in
any environmental litigation that would reasonably be expected to have a
Material Adverse Effect or impose upon GPC any material environmental liability.
(e) GPC has previously furnished to Helix copies of any
environmental audits or risk assessments, site assessments, documentation
regarding off-site disposal of Hazardous Materials, spill control plans and
material correspondence with any governmental agency regarding the foregoing.
2.28 Year 2000 Compliance. Certain of GPC's internal computer systems
are not Year 2000 compliant, i.e., they may not function properly after December
31, 1999, because they cannot distinguish between the 20th and 21st centuries.
GPC has been taking actions intended to either correct such systems or replace
them with Year 2000 compliant systems and does not believe that the cost of such
actions will have a Material Adverse Effect. GPC has also taken steps to request
its key customers and suppliers to confirm that their systems are Year 2000
compliant. However, there can be no assurance at this time that either GPC or
its key customers and suppliers will achieve timely compliance, or that GPC's
costs of achieving compliance will not exceed its current estimates.
2.29 Disclosure. The representations and warranties and statements of
GPC contained in this Agreement do not contain any untrue statement of a
material fact, and do not omit to state any material fact necessary to make such
representations, warranties and statements, in light of the circumstances under
which they are made, not misleading. Without limiting the foregoing sentence,
there is no fact or circumstance known to GPC that has not been disclosed to
Helix in this Agreement that is reasonably likely to have a Material Adverse
Effect.
SECTION 3 - REPRESENTATIONS AND WARRANTIES OF THE PRINCIPAL STOCKHOLDERS
Except as set forth on the disclosure schedule delivered to Helix on
the date hereof (the "Stockholder Disclosure Schedule"), the section numbers of
which are numbered to correspond to the section numbers of this Agreement to
which they refer, each of the Principal Stockholders, severally, represents and
warrants to Helix and Acquisition as to itself only as follows:
3.1 Authority to Execute and Perform Agreements. Each Principal
Stockholder has the full legal right and power and all authority and approvals
required to enter into, execute and deliver this Agreement, the Stockholder
Voting Agreement (as defined in Section 5.11) and the Stockholder Letter (as
defined in Section 5.10) and to perform fully its or his obligations hereunder
and thereunder. This Agreement has been duly executed and delivered and is the
valid and binding obligation of each Principal Stockholder enforceable in
accordance with its terms. When executed and delivered pursuant hereto, the
Stockholder Voting Agreement and the Stockholder Letter will be the valid and
binding obligation of each Principal Stockholder enforceable in accordance with
its terms.
3.2 No Breach. The execution, delivery and performance of this
Agreement, the Stockholder Voting Agreement and the Stockholder Letter and the
consummation of the transactions contemplated hereby and thereby will not (i)
violate, conflict with or result in the breach of any of the terms or conditions
of, result in modification of the effect of, or otherwise give any other
contracting party the right to terminate, or constitute (or with notice or lapse
of time or both constitute) a default under, any instrument, contract or other
agreement to which the Principal Stockholder is a party or to which the
Principal Stockholder or its assets or properties may be bound or subject; (ii)
violate any order, judgment, injunction, award or decree of any court,
arbitrator or governmental or regulatory body against, or binding upon, the
Principal Stockholder or upon the securities, properties or assets of the
Principal Stockholder; (iii) violate any statute, law or regulation of any
jurisdiction as such statute, law or regulation relates to the Principal
Stockholder; or (iv) require the approval or consent of any foreign, federal,
state, local or other governmental or regulatory body or the approval or consent
of any other person.
3.3 Title to Shares. Each Principal Stockholder owns beneficially and
of record, free and clear of any lien, claim or encumbrance, the shares of GPC
Stock set forth opposite such stockholder's name on Schedule 1.6(d). There are
no shareholder agreements, voting trusts, proxies or other agreements or
understandings with respect to the outstanding shares of capital stock of GPC to
which any Principal Stockholder is a party.
3.4 Accuracy of GPC Representations and Warranties. To the knowledge of
each Principal Stockholder, the representations and warranties of GPC contained
herein do not contain any untrue statement of a material fact and do not omit to
state any material fact necessary to make such representations, warranties and
statements, in light of the circumstances under which they are made, not
misleading.
SECTION 4 - REPRESENTATIONS AND WARRANTIES OF
HELIX AND ACQUISITION
Except as set forth on the disclosure schedule delivered to GPC on the
date hereof (the "Helix Disclosure Schedule"), the section numbers of which are
numbered to correspond to the section numbers of this Agreement to which they
refer, Helix represents and warrants regarding itself and Acquisition, and
Acquisition represents and warrants regarding itself, to GPC and the Principal
Stockholders as follows:
4.1 Organization. Each of Helix and Acquisition is a corporation duly
organized, validly existing and in good standing under the laws of its state of
incorporation with full corporate power and authority to own, lease and operate
its assets and to carry on its business as now being and as heretofore
conducted.
4.2 Authority to Execute and Perform Agreement. Each of Helix and
Acquisition has the corporate power and authority to enter into, execute and
deliver this Agreement and to perform fully its respective obligations
hereunder. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by the Board of
Directors of Helix, which is the only required corporate action on the part of
Helix, and by all necessary corporate action on the part of Acquisition. This
Agreement has been duly executed and delivered by each of Helix and Acquisition
and constitutes a valid and binding obligation of each, enforceable in
accordance with its terms.
4.3 Capitalization.
(a) Helix is authorized to issue 30,000,000 shares of Helix
Common Stock, of which 19,830,206 shares were issued and outstanding as of
December 31, 1997, and 2,000,000 shares of preferred stock, $1.00 par value
("Helix Preferred Stock"), issuable in series, none of which are outstanding. As
of December 31, 1997, except for an aggregate of 1,313,774 shares of Helix
Common Stock reserved for issuance under various stock option and stock purchase
plans of Helix, there is no outstanding right, subscription, warrant, call,
preemptive right, option or other agreement of any kind to purchase or otherwise
to receive from Helix any shares of the capital stock or any other security of
Helix and there is no outstanding security of any kind convertible into or
exchangeable for such capital stock. When issued in accordance with the terms of
this Agreement, Helix Common Stock to be issued pursuant to the Merger will be
duly authorized, validly issued, fully paid, nonassessable and free of any
preemptive rights.
(b) All the issued and outstanding shares of capital stock of
Acquisition have been or, at the Closing, will be duly authorized and validly
issued, fully paid and nonassessable, will not have been issued in violation of
any preemptive rights and will be owned by Helix.
4.4 SEC Reports. Helix has previously delivered to GPC its (i) Annual
Report on Form 10-K for the year ended December 31, 1997 (the "Helix 10-K"), as
filed with the SEC, (ii) the proxy statements relating to Helix's meetings of
stockholders held since December 31, 1996 and to be held on April 29, 1998 and
(iii) all other periodic and current reports filed by Helix with the SEC under
the Securities Exchange Act of 1934 (the "Exchange Act") since March 31, 1997.
As of their respective dates, such reports complied in all material respects
with applicable SEC requirements and did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. Helix has timely filed with the SEC all
reports required to be filed under Sections 13, 14 or 15(d) of the Exchange Act
since March 31, 1997.
4.5 Financial Statements. The consolidated financial statements
contained in the Helix 10-K have been prepared from, and are in accordance with,
the books and records of Helix and present fairly the consolidated financial
condition and results of operations of Helix and its subsidiaries as of and for
the periods presented therein, all in conformity with GAAP applied on a
consistent basis, except as otherwise noted therein.
4.6 No Material Adverse Change. Since December 31, 1997, except as
described in a Helix Form 10-K or any Form 8-K filed prior to the date of this
Agreement, or changes in the general business of Helix that are public
knowledge, there has not been any material adverse change in the assets,
properties, results of operations or financial condition of Helix and its
subsidiaries taken as a whole (a "Helix Material Adverse Effect").
4.7 Actions and Proceedings. Except as set forth in the Helix 10-K,
there are no actions, suits or claims or legal, administrative or arbitration
proceedings pending or, to the best knowledge of Helix and Acquisition,
threatened against Helix, Acquisition or any other corporation or legal entity
of which Helix owns, directly or indirectly, 50% or more of the stock or other
equity interest entitled to vote for the election of directors that individually
or in the aggregate would affect materially and adversely the ability of Helix
or Acquisition to complete the transactions contemplated hereby or that would
have a Helix Material Adverse Effect.
4.8 No Breach. The execution, delivery and performance of this
Agreement by Helix and Acquisition and the Escrow Agreement by Helix and
consummation by such parties of the transactions contemplated hereby will not
(i) violate any provision of the Certificate of Incorporation or Bylaws of Helix
or the Articles of Incorporation or Bylaws of Acquisition; (ii) violate,
conflict with or result in the breach of any of the terms or conditions of,
result in modification of the effect of, or otherwise give any other contracting
party the right to terminate, or constitute (or with notice or lapse of time or
both constitute) a default under, any instrument, contract or other agreement to
which Helix or Acquisition is party or to which either of them or any of their
assets or properties is bound or subject; (iii) violate any law, ordinance or
regulation or any order, judgment, injunction, decree or requirement of any
court, arbitrator or governmental or regulatory body applicable to Helix or
Acquisition or by which any of their assets or properties is bound; (iv) require
any filing with, notice to, or permit, consent or approval of, any governmental
or regulatory body except for (a) the filing of a premerger notification form
pursuant to the HSR Act, (b) the filing of the Merger Certificate with the
Secretary of State of Washington, (c) filings with various state blue sky
authorities and (d) the filing with the Nasdaq National Market of an application
for listing of the shares of Helix Common Stock to be issued in the Merger, or
(v) result in the creation of any lien or other encumbrance on the assets or
properties of Helix or Acquisition.
SECTION 5 - COVENANTS AND AGREEMENTS
The parties covenant and agree as follows:
5.1 Conduct of Business. Except with the prior written consent of
Helix, which will not be unreasonably withheld, and except as otherwise
contemplated herein, during the period from the date hereof to the Effective
Time, GPC shall observe the following covenants:
(a) Affirmative Covenants Pending Closing. GPC will:
(i) Preservation of Personnel. Use all reasonable
efforts to preserve intact its business organization and keep available the
services of present employees and consultants, it being understood that
termination of employees with poor performance ratings shall not constitute a
violation of this covenant;
(ii) Insurance. Use all reasonable efforts to keep in
effect casualty, public liability, worker's compensation and other insurance
policies in coverage amounts not less than those in effect at the date of this
Agreement;
(iii) Preservation of the Business; Maintenance of
Properties, Contracts. Use commercially reasonable efforts to preserve its
businesses, advertise, promote and market its services, keep its properties
intact, preserve its goodwill, and maintain all physical properties in good
operating condition;
(iv) Intellectual Property Rights. Use its best
efforts to preserve and protect the Proprietary Rights; and
(v) Ordinary Course of Business. Operate its
business diligently and solely in the ordinary course.
(b) Negative Covenants Pending Closing. GPC will not:
(i) Disposition of Assets. Sell or transfer, or
mortgage, pledge or create or permit to be created any lien on, any of their
assets, other than sales or transfers in the ordinary course of business and
liens existing under arrangements disclosed herein or permitted under Section
2.14 or Section 2.16;
(ii) Liabilities. (A) Incur any obligation or
liability other than in the ordinary course of GPC's business, (B) incur any
indebtedness for borrowed money or (C) enter into any contracts or commitments
involving payments by GPC of $50,000 or more, other than purchase orders or
commitments for inventory materials and supplies in the ordinary course of
business;
(iii) Compensation. (A) Change the compensation or
fringe benefits of any officer, director, employee or consultant, except for
ordinary merit increases for employees other than officers based on periodic
reviews in accordance with past practices or (B) enter into or modify any Plan
or any employment, severance or other agreement with any officer, director,
employee or consultant of GPC;
(iv) Capital Stock. (A) Grant or accelerate the
exercisability of, any option, warrant or other right to purchase, or to convert
any obligation into, shares of its capital stock, (B) declare or pay any
dividend or other distribution with respect to any shares of its capital stock
except as permitted by Section 5.3 or (C) issue any shares of its capital stock,
except upon the exercise of options outstanding on the date hereof;
(v) Charter and Bylaws. Amend the Articles of
Incorporation or Bylaws of GPC;
(vi) Acquisitions. Make any acquisition of
property other than in the ordinary course of GPC's business;
(vii) License Agreements. Enter into or modify
any license, technology development or technology transfer agreement with any
other person or entity, other than license agreements entered into in the
ordinary course of business on GPC's standard form as previously delivered to
Helix;
(viii) Legal Action. Commence any legal action
outside the ordinary course of business that could expose Helix or the Surviving
Corporation directly or indirectly to any material liability as a result of any
counterclaim or cross-claim or otherwise;
(ix) Other Material Changes. Take any
affirmative action or fail to take any reasonable action within its control as a
result of which any of the changes or events listed in Section 2.7 is likely to
occur.
5.2 Corporate Examinations and Investigations. Prior to the Effective
Time, Helix shall be entitled, through its employees and representatives, to
have such access to the assets, properties, business, books, records and
operations of GPC as Helix shall reasonably request in connection with Helix's
investigation of GPC with respect to the transaction contemplated hereby. Any
such investigation and examination shall be conducted at reasonable times and
GPC shall cooperate fully therein. No investigation by Helix shall diminish or
obviate any of the representations, warranties, covenants or agreements of GPC
or the Principal Stockholders contained in this Agreement. In order that Helix
may have full opportunity to make such investigation, GPC shall furnish the
representatives of Helix during such period with all such information and copies
of such documents concerning the affairs of GPC as such representatives may
reasonably request and cause its officers, employees, consultants, agents,
accountants and attorneys to cooperate fully with such representatives in
connection with such investigation.
5.3 Taxes. GPC shall prepare and timely file, in a manner consistent
with prior years, all tax returns required to be filed with respect to all
periods ending on or before the Closing, and shall timely pay any Taxes and
estimated Taxes, including additions, interest and penalties, required to be
paid with respect to any period ending on or before the Closing. Helix
acknowledges and agrees that GPC shall be entitled to make a distribution to its
stockholders immediately prior to the Closing in an amount equal to the amount
of any federal, state, local and foreign taxes payable by such stockholders with
respect to any of GPC's tax items, income, or loss taken into account under
Section 1366 of the Code to determine the federal income tax liability of such
stockholders for the short S Corporation taxable year ending as of the Closing
as estimated by GPC and approved by Helix's accountants. GPC shall deliver to
Helix and its accountants not less than ten (10) days before the Closing its
good faith estimate of the amount of such distribution and the financial
statement information on which it is based.
5.4 Expenses. Each of GPC and Helix shall bear its respective expenses
incurred in connection with the preparation, execution and performance of this
Agreement and the transactions contemplated hereby, including without
limitation, all fees and expenses of agents, representatives, counsel and
accountants.
5.5 Authorization from Others. Prior to the Closing Date, the parties
shall use all reasonable efforts to obtain all authorizations, consents and
permits required to permit the consummation of the transactions contemplated by
this Agreement.
5.6 Consummation of Agreement. Each party shall use its best efforts to
perform and fulfill all conditions and obligations to be performed and fulfilled
by it under this Agreement and to ensure that to the extent within its control
or capable of influence by it, no breach of any of the respective
representations, warranties and agreements hereunder occurs or exists on or
prior to the Effective Time, all to the end that the transactions contemplated
by this Agreement shall be fully carried out in a timely fashion.
5.7 Public Announcements and Confidentiality. Any press release or
other information to the press or any third party with respect to this Agreement
or the transactions contemplated hereby shall require the prior approval of
Helix and GPC, which approval shall not be unreasonably withheld, provided that
a party shall not be prevented from making such disclosure as it shall be
advised by counsel is required by law or the rules of the Nasdaq National
Market. GPC and the Principal Stockholders shall also keep confidential and
shall not use in any manner any information or documents obtained from Helix or
its representatives concerning Helix's assets, properties, business and
operations, unless readily ascertainable from public information, already known
or subsequently developed by GPC or the Principal Stockholders independently,
received from a third party not under an obligation to keep such information
confidential or otherwise required by law. If this Agreement terminates all
copies of any documents obtained from Helix, GPC or their representatives will
be returned, except that one copy thereof may be retained by counsel to the
party returning such documents in order to evidence compliance hereunder. The
obligations set forth in the previous two sentences of this Section 5.7 shall
survive termination of this Agreement.
5.8 No Solicitation. GPC and the Principal Stockholders will not (i)
solicit, initiate or encourage discussions with any person, other than Helix,
relating to the possible acquisition of GPC or all or a material portion of the
assets or capital stock of GPC or any merger or other business combination with
GPC (an "Acquisition Transaction") or (ii) participate in any negotiations
regarding, or furnish to any other person information with respect to, any
effort or attempt by any other person to do or to seek any Acquisition
Transaction. GPC and the Principal Stockholders agree to inform Helix in
reasonable detail within one business day of their receipt of any offer,
proposal or inquiry relating to any Acquisition Transaction with an economic
value greater than fifty ($50,000,000) million.
5.9 Filings Under HSR Act. As soon as practicable, each of Helix and
GPC shall file with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the Department of Justice (the "Antitrust Division") a premerger
notification form and any supplemental information (other than privileged
information) which may be requested in connection therewith pursuant to the HSR
Act, which filings and supplemental information will comply in all material
respects with the requirements of the HSR Act. Each of GPC and Helix shall
cooperate fully with the other in connection with the preparation of such
filings and shall use best efforts to respond to any requests for supplemental
information from the FTC or the Antitrust Division and to obtain early
termination of any waiting period applicable to the Merger under the HSR Act.
Any and all filing fees required to be paid in connection with the premerger
notification pursuant to the HSR Act shall be borne by Helix.
5.10 Stockholder Letter. GPC shall use its best efforts to deliver to
Helix prior to the Closing Date a Stockholder Letter from each individual or
entity who will receive Merger Consideration in substantially the form attached
hereto as Exhibit B (a "Stockholder Letter"), and each Principal Stockholder
agrees to deliver to Helix prior to the Closing Date, a Stockholder Letter.
5.11 Voting of GPC Stock. GPC shall use its best efforts to deliver to
Helix not later than the execution of this Agreement and in all events prior to
the Effective Date from each individual or entity listed on Schedule 5.11: (i) a
Stockholder Voting Agreement in substantially the form attached hereto as
Exhibit C and (ii) an Irrevocable Proxy in substantially the form attached
hereto as Exhibit D. Each Principal Stockholder agrees to execute such a
Stockholder Voting Agreement and Irrevocable Proxy.
5.12 Noncompetition Agreements. GPC shall use all reasonable efforts to
deliver to Helix prior to the Closing Date a Non-Disclosure, Non-Competition and
Developments Agreement in substantially the form attached hereto as Exhibit E-1
from each major Stockholder who is an employee of GPC listed on Schedule 5.12
for a term of three years from the Effective Time and a Non-Disclosure,
Non-Competition and Developments Agreement in substantially the form attached
hereto as Exhibit E2 from each employee or consultant listed on Schedule 5.12
for a term of two years from the Effective Time. Each Principal Stockholder
listed on Schedule 5.12 agrees to execute the relevant non-competition
agreement.
5.13 Patent and Confidential Information Agreements. GPC shall deliver
to Helix prior to the Closing Date a Patent and Confidential Information
Agreement substantially in the form attached hereto as Exhibit F from each
employee of GPC and from each consultant of GPC identified on Schedule 5.13
attached hereto and shall use its best efforts to deliver to Helix prior to the
Closing Date a Patent and Confidential Information Agreement from each other
employee or consultant of Helix. In the event that any of the "other" employees
or consultants of GPC fails to execute and deliver said Patent and Confidential
Information Agreement prior to the Closing Date because such employee is
traveling or otherwise unavailable to execute such agreement or for other good
reason, then GPC agrees that all such employees and consultants shall execute
and deliver such Patent and Confidential Information Agreements within thirty
(30) days following the Closing Date.
5.14 Incentive Plans Termination and Release. GPC shall deliver to
Helix prior to the Closing Date an agreement of termination and release, in form
satisfactory to Helix, from each participant in the Incentive Plans, provided,
however, that each participant shall have received the independent compensation
consultant's calculation referred to in Section 1.6(b)(ii) prior to the Closing
Date.
5.15 Helix SEC Filings. Helix shall furnish GPC with a copy of each
document filed by it under the Exchange Act promptly after filing the same. All
filings made by Helix after the date hereof pursuant to the Exchange Act will be
made in a timely fashion, will comply as to form in all material respects with
the applicable provisions of the Exchange Act and the rules and regulations
thereunder and will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading.
5.16 Publishing of Combined Financial Results. As soon as practicable
after the end of the first month following the Effective Time covering at least
thirty (30) days of operations, Helix shall use all reasonable commercial
efforts to publish financial results covering at least thirty (30) days of
combined operations of Helix and GPC.
5.17 Form S-3 Registration. Helix shall file a Registration Statement
on Form S-3 (or any similar registration statement then in effect) covering
Helix Common Stock issuable in the Merger and seek to have such Registration
Statement declared and remain effective in accordance with the provisions of the
Registration Rights Agreement attached hereto as Exhibit G.
5.18 Disclosure Statements. Prior to the Closing, GPC promptly will
supplement or amend the GPC Disclosure Schedule delivered pursuant hereto with
respect to any matter hereafter arising which, if existing, occurring or known
at the date of this Agreement, would have been required to be set forth or
described in such Schedule or which is necessary to correct any information in
such Schedule which has been rendered inaccurate thereby. No supplement or
amendment to the GPC Disclosure Schedule shall be deemed to supplement or amend
the GPC Disclosure Schedule for purposes of (i) determining the accuracy of any
of the representations and warranties made by GPC in this Agreement or (ii)
determining whether any condition to Helix's obligations to consummate the
Merger has been satisfied.
5.19 Further Assurances. Each of the parties shall execute such
documents, further instruments of transfer and assignment and other papers and
take such further actions as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby.
SECTION 6 - CONDITIONS PRECEDENT TO THE OBLIGATIONS
OF EACH PARTY TO CONSUMMATE THE MERGER
The respective obligations of each party to consummate the Merger shall
be subject to the satisfaction or waiver, at or before the Effective Time, of
each of the following conditions:
6.1 Approvals. All required approvals of the stockholders of GPC and
all consents and approvals referred to in this Agreement shall have been
obtained.
6.2 HSR Act. Any waiting period applicable to the Merger under the HSR
Act shall have expired or terminated.
6.3 Absence of Order. No restraining order or injunction of any court
which prevents consummation of the Merger shall be in effect.
SECTION 7 - CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
HELIX AND ACQUISITION TO CONSUMMATE THE MERGER
The obligation of Helix and Acquisition to consummate the Merger is
subject to the satisfaction or waiver by Helix, at or before the Effective Time,
of the following conditions:
7.1 Representations, Warranties and Covenants. The representations and
warranties of GPC and the Principal Stockholders contained in this Agreement
shall be true and correct at the date of execution of this Agreement and on and
as of the Effective Time with the same force and effect as though made on and as
of the Effective Time (with such exceptions as may be permitted under or
contemplated by this Agreement) and there shall not have been any event or
circumstance resulting in a Material Adverse Effect relating to GPC since the
date hereof. GPC and the Principal Stockholders shall have performed and
complied with all covenants and agreements required by this Agreement to be
performed or complied with by them on or prior to the Effective Time.
7.2 Opinion of Counsel to GPC. Helix shall have received an opinion of
counsel to GPC, dated the Closing Date, in form and substance reasonably
acceptable to Helix.
7.3 Merger Documents. GPC shall have executed and delivered the
Merger Certificate referred to in Section 1.2.
7.4 Dissenting Shares. The Dissenting Shares shall not exceed five
percent (5%) of the shares of GPC Common Stock issued and outstanding or deemed
issued and outstanding on the Closing Date.
7.5 Tax Opinion. Helix shall have received an opinion of its counsel,
dated the Closing Date, substantially to the effect that, on the basis of the
facts and representations set forth in such opinion, or set forth in writing
elsewhere and referred to therein, for federal income tax purposes the Merger
will constitute a reorganization within the meaning of Section 368(a) of the
Code and that no gain or loss will be recognized by and there will be no
corporate income tax liability to Helix or GPC by reason of the Merger.
7.6 Pooling of Interest Opinions. Helix shall have received a letter
from its accountants, Coopers & Xxxxxxx LLP, expressing such accounting firm's
concurrence in management's assessment as to the appropriateness of the
treatment of the transactions contemplated herein under the pooling of interests
accounting methods. In addition, Helix should have received a letter from GPC's
accountants, Xxxxxx Xxxxxxxx LLP, expressing such accounting firm's concurrence
in GPC management's assessment that GPC qualifies as an entity that may be a
party to a business combination accounted for as a pooling of interests under
U.S. generally accepted accounting principles.
7.7 Title Insurance. Helix shall have received an owner's title
insurance policy (on the then-current ALTA form) from a nationally-recognized
title insurance company, which has been issued to GPC at normal title insurance
premium rates insuring fee simple title in GPC as of the Closing Date, free from
all Encumbrances and exceptions other than (i) the Permitted Liens and (ii) the
standard preprinted exclusions from coverage set forth in the then-current ALTA
form of owner's title insurance.
7.8 Escrow Agreement. The Escrow Agreement, substantially in the form
attached hereto as Exhibit A, shall have been executed and delivered by all
parties thereto.
7.9 Stockholder Letters. Helix shall have received from each
stockholder of GPC a Stockholder Letter in substantially the form attached
hereto as Exhibit B.
7.10 Noncompetition Agreements. Helix shall have received
Non-Disclosure, Non-Competition and Developments Agreements in substantially the
form attached hereto as Exhibit E-1 from each major Stockholder who is an
employee of GPC listed on Schedule 5.12 for a term of three years from the
Effective Time and Non-Disclosure, Non-Competition and Development Agreements in
substantially the form attached hereto as Exhibit E2 from each employee of GPC
listed on Schedule 5.12 for a term of two years from the Effective Time.
7.11 Patent and Confidential Information Agreements. Helix shall have
received Patent and Confidential Information Agreements in substantially the
form attached hereto as Exhibit F from each employee and consultant of GPC
identified on Schedule 5.13 attached hereto.
7.12 Incentive Plans Termination and Release. Helix shall have received
agreements of termination and release, in form satisfactory to Helix, from each
participant in the Incentive Plans, provided, however, that each participant
shall have previously received the independent compensation consultant's
calculation referred to in Section 1.6(b)(ii).
7.13 Officer's Certificate. Helix shall have received a certificate
dated the Closing Date from the President of GPC stating that (i) the
representations and warranties and agreements of GPC contained in this Agreement
are true and correct, individually and in the aggregate, as of the Closing Date,
(ii) GPC has performed and complied with its obligations and agreements
hereunder, (iii) there has not been any event or circumstance resulting in a
Material Adverse Effect relating to GPC since the date of this Agreement and
(iv) the conditions set forth in Section 7.10 and 7.11 have been satisfied.
7.14 Secretary's Certificate. Helix shall have received a certificate
in form reasonably satisfactory to Helix dated the Closing Date from the
Secretary of GPC attaching (i) GPC's Articles of Incorporation, (ii) GPC's
bylaws, (iii) all corporate action taken in connection herewith, and (iv)
certifying the incumbency of GPC's officers who execute documents in connection
herewith.
7.15 Additional Items. GPC and each Principal Stockholder shall have
furnished Helix with such other certificates and documents as have been
reasonably requested by Helix.
SECTION 8 - CONDITIONS PRECEDENT TO THE OBLIGATION OF THE
GPC AND THE PRINCIPAL STOCKHOLDERS TO CONSUMMATE THE MERGER
The obligation of GPC and the Principal Stockholders to consummate the
Merger is subject to the satisfaction or waiver by them, at or before the
Effective Time, of the following conditions:
8.1 Representations, Warranties and Covenants. The representations and
warranties of Helix and Acquisition contained in this Agreement shall be true
and correct at the date of execution of this Agreement and on and as of the
Effective Time with the same force and effect as though made on and as of the
Effective Time (with such exceptions as may be permitted under or contemplated
by this Agreement). Each of Helix and Acquisition shall have performed and
complied with all covenants and agreements required by this Agreement to be
performed or complied with by it on or prior to the Effective Time.
8.2 Officer's Certificate. GPC shall have received a certificate dated
the Closing Date from the President of Helix stating that (i) the
representations and warranties and agreements of Helix contained in this
Agreement are true and correct, individually and in the aggregate, as of the
Closing Date and (ii) Helix has performed and complied with its obligations and
agreement hereunder and (iii) there has not been any event or circumstance
resulting in a Material Adverse Effect relating to Helix since the date of this
Agreement.
8.3 Opinion of Counsel to Helix. GPC shall have received an opinion of
counsel to Helix and Acquisition, dated the Closing Date, in form and substance
reasonably acceptable to GPC.
8.4 Tax Opinion. GPC shall have received an opinion of its counsel,
addressed to GPC and its stockholders and dated the Closing Date, substantially
to the effect that, on the basis of facts and representations set forth in such
opinion, or set forth in writing elsewhere and referred to therein, for federal
income tax purposes the Merger will constitute a reorganization within the
meaning of Section 368(a) of the Code and no gain or loss will be recognized by
GPC or its stockholders by reason of the receipt of the shares of Helix Common
Stock in the Merger (it being understood that such opinion will not extend to
cash payments in lieu of fractional share interests and may not extend to shares
of Helix Common Stock received by holders of vested stock options to purchase
shares of GPC Stock; provided, however, that in the event that counsel is unable
or unwilling to deliver such opinion, then this condition shall be deemed
satisfied if such opinion is delivered by Helix's counsel.
8.5 Registration Rights Agreement. A registration rights agreement
substantially in the form attached hereto as Exhibit G shall have been executed
and delivered by Helix.
SECTION 9 - TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Agreement may be terminated at any time
prior to the Effective Time as follows:
(a) by either GPC or Helix, by written notice to the other, if the
Effective Time shall not have occurred on or before June 15, 1998, other than
due to issues with respect to the filing pursuant to the HSR Act; provided,
however, that the right to terminate this Agreement under this subsection shall
not be available to any party whose breach of a representation or warranty or
failure to fulfill any covenant or agreement under this Agreement has been the
cause of or resulted in the failure of the Merger to occur on or before such
date, with any such breach or failure by a Principal Stockholder being deemed a
breach or failure by GPC for this purpose.
(b) by GPC (provided that none of the Principal Stockholders nor GPC is
then in material breach of any representation, warranty, covenant or other
agreement contained herein), by written notice to Helix, if there shall have
been a material breach of any of the covenants or agreements or any of the
representations or warranties contained in this Agreement on the part of Helix,
which breach is either not cured within 20 days following written notice to
Helix or by its nature cannot be cured prior to the Closing; provided, however,
that GPC shall not have the right to terminate this Agreement pursuant to this
subsection because of the breach of any representation or warranty unless such
breach, together with all such other breaches, would entitle GPC not to
consummate the transactions contemplated hereby under Section 8.1;
(c) by Helix (provided that Helix is not then in material breach of any
representation, warranty, covenant or other agreement contained herein), by
written notice to GPC, if there shall have been a material breach of any of the
covenants or agreements or any of the representations or warranties contained in
this Agreement on the part of GPC or any Principal Stockholder, which breach is
either not cured within 20 days following written notice to GPC or by its nature
cannot be cured prior to the Closing; provided, however, that Helix shall not
have the right to terminate this Agreement pursuant to this subsection because
of the breach of any representation or warranty unless such breach, together
with all such other breaches, would entitle Helix not to consummate the
transactions contemplated hereby under Section 7.1;
(d) by either Helix or GPC, by written notice to the other, if any
governmental entity shall have issued any injunction or taken any other action
permanently restraining, enjoining or otherwise prohibiting the consummation of
the Merger and such injunction or other action shall have become final and
nonappealable; or
(e) at any time with the written consent of Helix and GPC.
9.2 Effect of Termination. If this Agreement is terminated as provided
in Section 9.1, this Agreement shall forthwith become void and have no effect,
without liability on the part of any party, its directors, officers or
stockholders, other than the provisions of this Section 9.2, Section 5.4
relating to expenses and Section 5.7 relating to publicity and confidentiality
to the extent provided therein. Nothing contained in this Section 9.2 shall
relieve any party from liability for any breach of this Agreement occurring
before such termination.
9.3 Amendment. This Agreement may not be amended except by an
instrument signed by each party hereto; provided, however, that after adoption
of this Agreement by the stockholders of GPC, without the further approval of
the stockholders of GPC, no amendment may be made that (a) alters or changes the
amount or kind of consideration to be received as provided herein or (b) alters
or changes any of the terms of this Agreement if such alteration or change would
materially adversely affect the stockholders of GPC.
9.4 Waiver. At any time prior to the Effective Time, any party hereto
may, (a) extend the time for the performance of any of the obligations or other
acts of any other party hereto or (b) waive compliance with any of the
agreements of any other party or any conditions to its own obligations, in each
case only to the extent such obligations, agreements and conditions are intended
for its benefit; provided that any such extension or waiver shall be binding
upon a party only if such extension or waiver is set forth in a writing executed
by such party.
SECTION 10 - INDEMNIFICATION
10.1 Survival. Notwithstanding any right of any party to fully
investigate the affairs of the other party and notwithstanding any knowledge of
facts determined or determinable by such party pursuant to such investigation or
right of investigation, each party has the right to rely fully upon the
representations, warranties, covenants and agreements of each other party in
this Agreement or in any certificate, financial statement or other document
delivered by any party pursuant hereto. All such representations, warranties,
covenants and agreements shall survive the execution and delivery hereof and the
Closing hereunder, subject to the limitations set forth in Section 10.4. No
person shall have a right to recovery against any party (or any officer,
director, employee or agent of a party) other than through the exercise of the
indemnification rights set forth in Section 10.2, which shall constitute the
sole and exclusive remedy after the Closing Date for any breach by a party of
any representation, warranty or covenant contained herein or in any certificate
or other instrument delivered pursuant hereto, other than a fraudulent or
intentional breach.
10.2 Obligation of GPC and the Stockholders to Indemnify.
(a) Subsequent to the Effective Time, the holders of GPC Stock
outstanding immediately prior to the Effective Time, shall solely, to the extent
of their interest in the Escrow Account held pursuant to the Escrow Agreement,
jointly and severally, indemnify and hold harmless Helix, Acquisition and the
Surviving Corporation (and their respective directors, officers, employees,
agents, affiliates and assigns) from and against all losses, liabilities,
damages, deficiencies, costs or expenses, including interest and penalties
imposed or assessed by any judicial or administrative body and reasonable
attorneys' fees, whether or not arising out of third-party claims and including
all amounts paid in investigation, defense or settlement of the foregoing
pursuant to this Section 10 ("Losses") based upon, arising out of or otherwise
in respect of any (i) inaccuracy in or breach of any representation, warranty or
covenant of GPC contained herein, (ii) adjustment based on the Closing Balance
Sheet per Section 1.6(b) or (iii) in any certificate delivered pursuant hereto.
(b) Subsequent to the Effective Time, each Principal
Stockholder shall solely to the extent of their proportionate interest in the
Escrow Account indemnify and hold harmless Helix, Acquisition and the Surviving
Corporation (and their respective directors, officers, employees, agents,
affiliates and assigns) from and against all Losses based upon, arising out of
or otherwise in respect of any inaccuracy in or breach of any representation,
warranty or covenant of such Principal Stockholder contained herein or in any
certificate delivered pursuant hereto.
10.3 Obligation of Helix and Acquisition to Indemnify. Subsequent to
the Effective Time, each of Helix and Acquisition severally agrees to indemnify
and hold harmless the holders of GPC Stock outstanding immediately prior to the
Effective Time (and their respective directors, officers, employees, agents,
affiliates and assigns) from and against any Losses based upon, arising out of
or otherwise in respect of any inaccuracy in or breach of any representation,
warranty covenant of Helix or Acquisition contained herein or in any certificate
delivered pursuant hereto.
10.4 Limitations on Indemnification. Notwithstanding the foregoing, the
right to indemnification under this Section 10 shall be subject to the following
terms:
(a) No indemnification shall be payable pursuant to Section
10.2 or Section 10.3 unless and to the extent that the amount of all claims for
indemnification pursuant to the applicable Section exceeds $500,000 in the
aggregate, whereupon indemnification pursuant to such sections shall be payable
for all such claims in excess of that amount.
(b) No indemnification shall be payable pursuant to Section
10.2 or Section 10.3 after the earlier of one year after the Effective Time or
the issuance of the first audited financial statements of the combined
corporation (the "Expiration Date"), except with respect to claims made prior to
the Expiration Date but not then resolved.
(c) Except for claims arising out of any inaccuracy in or
breach of a representation or warranty of a Principal Stockholder, all
indemnification claims under Section 10.2 shall be satisfied in full from the
Escrow Account held pursuant to the Escrow Agreement and no person shall have
any right to recovery from any person who was a holder of GPC Stock immediately
prior to the Effective Time. In the case of inaccuracy or breach of a Principal
Stockholder representation or warranty, Helix and Acquisition may recover from
the Escrow Account held pursuant to the Escrow Agreement only that portion
allocable to the Principal Stockholder responsible for the inaccuracy or breach.
(d) The limitations of Sections 10.4(a), (b) and (c) (other
than the last sentence of Section 10.4(c)) shall not apply in the case of a
fraudulent or intentional misrepresentation or breach by any party, but no
person shall be liable for any such misrepresentation or breach by any other
person (except to the extent of its share of the Escrow Account held pursuant to
the Escrow Agreement if such misrepresentation or breach is by GPC).
(e) In determining the amount of any indemnity, there shall be
taken into account any tax benefit, insurance proceeds or other similar recovery
or offset realized, directly or indirectly, by the party to be indemnified.
10.5 Notice and Defense of Claims. Promptly after receipt of notice of
any claim, liability or expense for which a party seeks indemnification
hereunder, such party shall give written notice thereof to the indemnifying
party, but such notification shall not be a condition to indemnification
hereunder except to the extent of actual prejudice to the indemnifying party.
The notice shall state the information then available regarding the amount and
nature of such claim, liability or expense and shall specify the provision or
provisions of this Agreement under which the liability or obligation is
asserted. If within 30 days after receiving such notice the indemnifying party
gives written notice to the indemnified party stating that it intends to defend
against such claim, liability or expense at its own cost and expense, then
defense of such matter, including selection of counsel (subject to the consent
of the indemnified party which consent shall not be unreasonably withheld),
shall be by the indemnifying party and the indemnified party shall make no
payment on such claim, liability or expense as long as the indemnifying party is
conducting a good faith and diligent defense. Notwithstanding the foregoing, the
indemnified party shall at all times have the right to fully participate in such
defense at its own expense directly or through counsel; provided, however, if
the named parties to the action or proceeding include both the indemnifying
party and the indemnified party and representation of both parties by the same
counsel would be inappropriate under applicable standards of professional
conduct, the expense of separate counsel for the indemnified party shall be paid
by the indemnifying party. If no such notice of intent to dispute and defend is
given by the indemnifying party, or if such diligent good faith defense is not
being or ceases to be conducted, the indemnified party shall, at the expense of
the indemnifying party, undertake the defense of such claim, liability or
expense with counsel selected by the indemnified party, and shall have the right
to compromise or settle the same exercising reasonable business judgment. The
indemnified party shall make available all information and assistance that the
indemnifying party may reasonably request and shall cooperate with the
indemnifying party in such defense.
SECTION 11 - MISCELLANEOUS
11.1 Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when so delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or two business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
(a) if to Helix, to:
Helix Technology Corporation
Mansfield Corporate Center
Nine Hampshire Street
Mansfield, MA 02048-9171
Attention: Xxxxxx X. Xxxxxxxx, Chief Executive
Officer
Telephone: 508/000-0000
Facsimile: 508/337-5175
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxx, II
Telephone: 617/000-0000
Facsimile: 617/227-4420
(b) if to GPC or the Principal Stockholders, to:
Xxxxxxxxx - Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx, Vice President
Strategic Projects
Telephone: 303/000-0000
Facsimile: 303/443-3835
with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telephone: 303/000-0000
Facsimile: 303/623-2062
Any party may by notice given in accordance with this Section 11.1 to the other
parties designate another address or person for receipt of notices hereunder.
11.2 Entire Agreement. This Agreement includes the exhibits and
schedules hereto, contains the entire agreement among the parties with respect
to the Merger and related transactions, and supersedes all prior agreements,
written or oral, with respect thereto.
11.3 Governing Law. This Agreement is governed by the laws of the
State of Delaware.
11.4 Binding Effect; No Assignment. This Agreement shall be binding
upon and inure to the benefit of the parties and their respective successors and
permitted assigns. This Agreement is not assignable without the prior written
consent of the other parties hereto.
11.5 Variations in Pronouns. All pronouns and any variations thereof
refer to the masculine, feminine or neuter, singular or plural, as the context
may require.
11.6 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
11.7 Disclosure Schedules. The Disclosure Schedules are a part of
this Agreement as if fully set forth herein.
11.8 Arbitration. If a dispute arises from or relates to this Agreement
or the breach thereof, whether of law or fact, of any nature whatsoever, and
such dispute cannot be settled through direct discussions between the parties,
the parties agree to settle the dispute by entering into binding arbitration
before the American Arbitration Association in accordance with the commercial
arbitration rules of the Association. Notice of demand for arbitration shall be
provided in writing to the other party. The arbitration shall be conducted
before a single arbitrator, selected jointly by the parties acting in good
faith. If the parties cannot agree on an arbitrator within 30 days of the giving
of the notice of demand for arbitration, each party shall select an arbitrator,
and the two selected arbitrators shall determine the final arbitrator. The
arbitrator shall be a person who is, or has served as, a senior officer for at
least three years of a company which is a supplier to the semi-conductor
industry. The arbitration shall be held in Denver, Colorado, if it is initiated
by Helix, or Boston, Massachusetts, if it is initiated by GPC. The parties agree
that facts and other information relating to any arbitration arising under this
Agreement shall be kept confidential to the fullest extent permitted by law. The
fees and expenses of any arbitration shall be borne by the parties in such
proportion as shall be determined by the arbitrator, or if there is no such
determination, then such fees and expenses shall be borne equally by the
parties.
IN WITNESS WHEREOF, the parties have executed this Agreement under seal
as of the date first stated above.
HELIX TECHNOLOGY CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
HELIX ACQUISITION CORPORATION
By:/s/ Xxxxxx X. Xxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President
XXXXXXXXX-XXXXXXXX COMPANY
By:/s/ Xx. Xxxxxx X. Xxxxx
------------------------------------------------
Name: Xx. Xxxxxx X. Xxxxx
Title: Chairman
THE PRINCIPAL STOCKHOLDERS:
Gold I Trust
By:/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
By:/s/ Xxxxx Xxxxx XxXxxxxx
Xxxxx Xxxxx XxXxxxxx, as Trustees
Gold II Trust
By:/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
By:/s/ Xxxxx Xxxxx XxXxxxxx
Xxxxx Xxxxx XxXxxxxx, as Trustees
Platinum I Trust
By:/s/ Xxxxx X. Xxxxxxxx, Trustee
Xxxxx X. Xxxxxxxx
By:/s/ Xxxxx Xxxxx XxXxxxxx, Trustee
Xxxxx Xxxxx XxXxxxxx
Platinum II Trust
By:/s/ Xxxxx X. Xxxxxxxx, Trustee
Xxxxx X. Xxxxxxxx
By:/s/ Xxxxx Xxxxx XxXxxxxx, Trustee
Xxxxx Xxxxx XxXxxxxx
Silver I Trust
By:/s/ Xxxxx X. Xxxxx, Trustee
Xxxxx X. Xxxxx
By:/s/ Xxxxx X. Xxxxxxxx, Trustee
Xxxxx X. Xxxxxxxx
Silver II Trust
By:/s/ Xxxxx X. Xxxxx, Trustee
Xxxxx X. Xxxxx
By:/s/ Xxxxx X. Xxxxxxxx, Trustee
Xxxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxx
Xxxxx X. Xxxxx
/s/ Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxxx
/s/ Xxxxx Xxxxx XxXxxxxx
Xxxxx Xxxxx XxXxxxxx
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxxxxxxxx
Xxxxxxx X. Xxxxxxxxxx
Schedule 1.6(d)
Shares Deemed Outstanding
XXXXXXXXX-XXXXXXXX COMPANY SHAREHOLDERS
Unvested
Voting Non-Voting Incentive
Shares Shares Total Shares
Xxxxx, Xxxxx X. 400 2,400 2,800 1,400
000 Xx. Xxxxxxxx Xxxxxx
X. Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxx Xxxxxx 2,300 13,800 16,100 4,200
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Bills, Xxxxx X. 13,781 82,686 96,467 2,100
00000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Bills, Xxxxxx X. 10,942 14,400 25,342 16,800
000 Xxxxx Xxx
Xxxxxxx, XX 00000
(000) 000-0000
Bills, June M. 8,542 0 8,542
000 Xxxxx Xxx
Xxxxxxx, XX 00000
(000) 000-0000
Black, Xxxxxx X. 825 4,950 5,775
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
SSN ###-##-####
(000) 000-0000
Xxxxxxxxxx, Xxxxxxx X. 7,449 44,694 52,143 16,800
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx X. Xxxxx 100 600 700
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(000)000-0000
Xxxxx, Xxxxxx X. & Xxxxxxx X. 310 1,860 2,170
as Joint Tenants & Not as
Tenants in Common
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxx, Xxxxx X. 500 3,000 3,500
0000 X. Xxxxx Xx., Xxx. 0000
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxxxx, Xxxxxx X. & Xxxxxxxx X. 2,500 15,000 17,500
as Joint Tenants with Right of
Survivorship not as Tenants
in Common
S.E. 000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. & Xxxxx X. 645 3,870 4,515
as Joint Tenants & Not as
Tenants in Common
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Fiduciary Trust Co. of N.Y.
X.X. Xxx 0000
Xxxxxx Xxxxxx Xxxxxxx
Xxx Xxxx, XX 00000
Xxxxxx & Co. 1,200 7,200 8,400
Xxxxxxx, Xxxxxx X. 240 1,440 1,680
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. 1,150 6,900 8,050
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxx X. 1,740 10,440 12,180 9,800
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Xxxxxxxxxx, Xxxxxxx X. 1,175 7,050 8,225
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
XxXxxxxx, Xxxxx Xxxxx (Bills) 15,803 94,818 110,621
00000 Xxxxxx Xx.
Xxxxxx, XX 00000
(000) 000-0000
Xxxxxxxxx, Xxxxxxx X. 2,120 12,720 14,840
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Menkick, Xxxxxx X. 12 72 84
00000 X. 00xx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. 1,400 8,400 9,800
Trustee of the Xxxxxxx X. Xxxxxx
Family Testamentary Trust
00000 00xx Xxxxxx Xxxxx
Xxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. 1,400 8,400 9,800
Trustee of the Xxxxxx X. Xxxxxx
Revocable Living Trust, Dated:
October 15, 1992
00000 00xx Xxxxxx Xxxxx
Xxxx, Xxxxxxxxxx 00000
X'Xxxxxxxx-Xxxxxx, Xxxxxx 640 3,840 4,480 1,400
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx, Xxxxxxx X. 3,071 18,426 21,497 4,200
000 00xx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxxx, Xxxxx X. (Bills) 13,864 83,184 97,048
0000 Xxx Xxxxx Xx.
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx, X. Xxxxxxxxx, Xx. 100 600 700
0000 X. 0000 X.
Xxxx Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. 180 1,080 1,260
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 000-0000 (H)
(000) 000-0000 (W)
Xxxxxx, Xxxxxxx X. 10,306 61,836 72,142 16,800
000 Xxxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxxx X. 1,368 8,208 9,576 5,600
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx, Xxxxxxx X. III &
Xxxxxxxxx X. 176 1,056 1,232
as Joint Tenants & Not as
Tenants in Common
0000 00xx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxx X. & Xxxxx X. 200 1,200 1,400
as Joint Tenants with Right
of Survivorship and Not as
Tenants in Common
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. 6,250 37,500 43,750 16,800
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Gold I Trust 0 17,084 17,084
Xxxxx X. Xxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Gold II Trust 0 17,084 17,084
Xxxxx X. Xxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Platinum I Trust 0 17,084 17,084
Xxxxx X. Xxxxxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Platinum II Trust 0 17,084 17,084
Xxxxx X. Xxxxxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Silver I Trust
Xxxxx X. Xxxxx and 0 17,084 17,084
Xxxxx X. Xxxxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Silver II Trust
Xxxxx X. Xxxxx and 0 17,084 17,084
Xxxxx X. Xxxxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
------ ------- ------- ------
110,689 664,134 774,823 95,900
Schedule 5.11
Stockholder Voting Agreement and Irrevocable Proxy
Gold I Trust
Gold II Trust
Platinum I Trust
Platinum II Trust
Silver I Trust
Silver II Trust
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
Xxxxx Xxxxx XxXxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxxx
Schedule 5.12
Non-Competition Agreements
A. Key Employees Executing Two-Year Non-Competition Agreements
Xxxxxx X'Xxxxxxxx-Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxxxxx
B. Major Stockholders Executing Three-Year Non-Competition Agreements
Xxxxxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxxx X. Xxxxx
Xxxxxxx X. Xxxxxxx
Xxxxx X. Xxxxxx
Xxxx X. Xxxxxx
Schedule 5.13
Patent and Confidential Information Agreements
Xxxx X. Xxxxxx
Xxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx Xxxxxxxxxx
Xxxxxx X. Xxxxxxxxxxx
Xxxxxx X. Xxxxxxxxxx
Xxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxx
Xxxxxx X. Xxxxxx
