EXHIBIT 2.1
AGREEMENT TO MERGE
This AGREEMENT TO MERGE (the "Agreement") is made and entered into this
day of April, 1997 by VERSAR, lNC., a Delaware Corporation (the "Company"),
in favor and for the benefit of each of the plaintiffs in Xxxxx X. Xxxxxxxx,
Xx., et al. v. Imperial Capital, et al., Docket No. MON-C-278-96, pending
before the Superior Court of New Jersey, Monmouth County, Chancery Division
(the "Plaintiffs").
WHEREAS, the Company wishes to enter into a certain Stock Purchase
Agreement between the Company as purchaser and Imperial Capital Worldwide
Partners, L.P., Imperial Capital Investors Corp., Xxxxxxxx Xxxxxx and Xxxxxx
Xxxxxx as sellers (the "Stock Purchase Agreement"), and then to consummate
the transaction contemplated thereby, pursuant to which the Company would
acquire a majority of the common stock of Science Management Corp., a Delaware
corporation ("SMC") from the other parties to the Stock Purchase Agreement
(the "Imperial Parties"); and
WHEREAS, as a condition to the obligations of the Imperial Parties to
consummate such transaction, the Company is required to obtain from each of
the Plaintiffs and deliver to the Imperial Parties a general release of all
claims of such Plaintiff against the Imperial Parties; and
WHEREAS, in consideration for such releases, the Company has agreed to
enter into this Agreement, pursuant to which the shares of SMC common stock
held by the Plaintiffs, and all other shares of SMC common stock except those
held by the Company, will be converted, through a merger, into shares of the
Company' s common stock in the ratio hereinafter set forth;
NOW THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Company hereby agrees with each of the Plaintiffs as follows:
1. The Merger. As soon as practicable following the consummation of
the transactions contemplated by the Stock Purchase Agreement (the "Imperial
Closing"), the Company will cause SMC to be merged with a newly formed wholly
owned subsidiary of the Company ("Acquisition Sub"), with Acquisition Sub
being the surviving corporation (the "Merger"). The Company will cause the
Merger to be effected in accordance with all applicable corporation laws,
securities laws and other laws and regulations. Pursuant to the Merger, each
share of capital stock of SMC, other than the shares owned by the Company and
shares owned by shareholders who validly exercise their dissenters' rights
under the Delaware General Corporation Law, will be converted into .573584
shares of common stock of the Company; provided that the number of shares
received by each SMC shareholder will be rounded so that each shareholder
receives a whole number of shares of common stock of the Company.
2. Approvals. (a) The Company will use its best efforts to cause
(i) the Board of Directors of SMC to approve the Merger and to recommend
approval of the Merger to the stockholders of SMC and (ii) a proxy statement
to be prepared and submitted to the stockholders of SMC for a vote on the
Merger. The Company will vote its shares of SMC common stock in favor of the
Merger.
(b) Two of the Plaintiffs, Xxxxx X. Xxxxxxxx, Xx. and Xxxxxx X.
Xxxxxxxx, will enter into a Lock-Up Agreement with the Company pursuant to
which they will agree to vote their shares of SMC common stock in favor of
the Merger, and the Plaintiffs will so vote their shares.
3. Registration Statement. The Company shall prepare and file with
the SEC as soon as reasonably practicable after the Imperial Closing a
registration statement on Form S-4 under the Securities Act of 1933 (the
"Securities Act") for purposes of registering the Company common stock to be
issued in the Merger and the resale thereof. Such registration statement on
Form S-4 and any amendment or supplements thereto are referred to herein as
the "Registration Statement." The Company shall use commercially reasonable
efforts to have the Registration Statement declared effective under the
Securities Act as promptly as practicable after its filing. The Company shall
also take such action as may be reasonably required to cause the shares covered
by the Registration Statement to be registered or to obtain an exemption from
registration under applicable state "blue sky" or securities laws. The
Company covenants that the Registration Statement (i) will comply in all
material respects with the applicable provisions of the Securities Act and the
rules and regulations promulgated thereunder and (ii) will not at the time such
document is filed with the SEC or at any time after it becomes effective under
the Securities Act contain any untrue statement of any material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading, or necessary to correct any statement in any earlier
filing with the SEC of the Registration Statement.
4. Stock Exchange Listing. The Company shall prepare and file an
application with the American Stock Exchange to list on such exchange the
Company common stock issuable pursuant to the Merger effective as of the
consummation of the Merger and will use commercially reasonable efforts to
cause such application to be approved by such time.
5. Resale of Shares. The Company represents that the shares of common
stock of the Company issued pursuant to the Merger may be resold following the
Merger pursuant to Rule 145(d) under the Securities Act and are not subject to
any holding period under such Rule or under Rule 144 under the Securities Act
but affiliates of SMC will be required to trade the Versar stock in accordance
with the volume and manner of sale limitations of Rule 144 and comply with
rules relating to the ruling of Versar stock when in the possession of non-
public information.
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6. Call Option; Escrow Release. The call option issued to Imperial
Capital Worldwide Partners, L.P., as provided in Article IV(A)(iii) of the
Fifth Modified Plan of Reorganization, as amended, of SMC's bankruptcy
proceedings, Case No. 93-34553 (SAS), shall be deemed cancelled immediately
upon the acquisition of such call option by the Company pursuant to the Stock
Purchase Agreement, and such call option shall not be exercised by the Company.
As soon as practicable following the Imperial Closing, and in any event prior
to the Merger, the Company shall cause the certificates representing the shares
of SMC common stock held by the plaintiffs that are subject to the call option
to be released from escrow by the escrow agent who is currently holding such
certificates.
7. Representations.
Corporate Acts and Proceedings. All corporate acts and proceedings
required for the authorization, execution and delivery of this Agreement have
been lawfully and validly taken. All corporate acts and proceedings required
for the offer, issuance and delivery of the Company common stock pursuant to
the Merger and the performance of the other obligations of the Company under
this Agreement will have been so taken prior to the Merger or, if earlier, the
performance of such other obligation.
Changes. As of the date hereof, since December 31, 1996, no
material event of the type that would be required to be disclosed in a
Registration Statement under the Securities Act, a Form 10-K under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"),
or applicable state securities laws that has not been disclosed in
documents filed with the SEC or otherwise disclosed to the Plaintiffs in
writing, has occurred.
No Consents. Neither the execution nor the delivery by the Company
of this Agreement nor the performance of its obligations hereunder require the
consent, approval or action of, or any filing with or notice to, any
corporation, person or firm or any public, governmental or judicial authority.
No Violation. Neither the execution nor the delivery by the Company
of this Agreement nor the performance of its obligations hereunder will: (i)
result in a material breach of any term or provision of, or constitute a
default under, any indenture, mortgage, lease, deed of trust of other material
agreement to which the Company is a party or to which its business, properties
or assets are subject; (ii) conflict with, or result in a breach of, the
Certificate of Incorporation or Bylaws of the Company; or (iii) violate any
statute, rule, regulations, judgment, order, writ, injunction or decree, or
award of any court, administrative agency or governmental body applicable to
the Company, or any of its properties, assets or outstanding shares.
No Litigation. To the actual knowledge of the corporate officers of
the Company, there is no action or proceeding which has been instituted or
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threatened before any court or other governmental body by any person or public
authority seeking to restrain or prohibit or to obtain damages with respect to
the execution and delivery of this Agreement or the performance of the
Company's obligations hereunder.
Broker's Commissions. No broker's or finder's fees or commission
will be payable by the Company, or by the Plaintiffs as a result of acts of the
Company, with respect to the transactions contemplated hereunder.
8. Remedies. This Agreement is intended for the benefit of and to
confer rights upon the Plaintiffs, and it shall be enforceable by them, or any
of them, and their respective successors, assigns, heirs, executors,
administrators and other personal and legal representatives. The Company
acknowledges and agrees that it would be impossible to determine money damages
for violations of this Agreement and that such violations will cause
irreparable injury for which adequate remedy at law is not available and,
therefore, this Agreement may be enforced by specific performance or injunctive
relief. The Company agrees that any Plaintiff may, in his, her or its sole
discretion, apply to any court of competent jurisdiction for specific
performance or injunctive or such other relief as such court may deem just and
proper in order to enforce this Agreement or prevent any violation hereof and,
to the extent permitted by applicable law, the Company waives any objection or
defense to the imposition of such relief. Nothing herein shall be construed to
prohibit any Plaintiff from bringing any action for damages in addition to an
action for specific performance or an injunction for a breach of this
Agreement.
9. Miscellaneous.
Entire Agreement. This Agreement, together with the "Term Sheet"
executed by the Company contemporaneously herewith, constitutes the entire
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
Assignment; Amendment. This Agreement shall not be assigned by the
Company by operation of law or otherwise without the prior written consent of
Plaintiffs holding a majority in interest of the SMC common stock held by the
Plaintiffs. This Agreement shall not be amended, altered or modified in any
manner whatsoever, except by a written instrument executed by the Company and,
if such change is adverse to the Plaintiffs, by Plaintiffs holding a majority
in interest of the SMC common stock held by the Plaintiffs.
Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware (without giving effect to the provisions thereof relating to conflicts
of law).
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Survival. The representations, warranties and covenants contained
herein shall survive the Merger.
Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, the Company has caused this Agreement to be executed
by its duly authorized representatives as of the date first above written.
VERSAR, INC.
By:/s/ Xxxxx Xxxxxxx Xxxxx
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Its: Vice President
The undersigned are executing this Agreement solely for the purpose of
agreeing to be bound by their respective obligations under Section 2(b) of
this Agreement.
/s/ Xxxxx X. Xxxxxxxx, Xx.
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Xxxxx X. Xxxxxxxx, Xx.
/s/ Xxxxxx X. Xxxxxxxx
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Xxxxxx X. Xxxxxxxx
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