EXHIBIT (d)(1)
EXECUTION COPY
MERGER AGREEMENT
BY AND AMONG
IRONBRIDGE HOLDING LLC,
IRONBRIDGE ACQUISITION CORP.
AND
PITT-DES MOINES, INC.
DATED AS OF FEBRUARY 1, 2002
TABLE OF CONTENTS
Page
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ARTICLE I THE OFFER...............................................................................................1
SECTION 1.1 The Offer.................................................................................1
SECTION 1.2 Company Action............................................................................4
SECTION 1.3 Closing...................................................................................5
ARTICLE II THE MERGER.............................................................................................5
SECTION 2.1 Agreement to Effectuate the Merger........................................................5
SECTION 2.2 Effective Time of the Merger..............................................................5
ARTICLE III REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER................................................6
SECTION 3.1 Organization and Qualification............................................................6
SECTION 3.2 Capitalization............................................................................6
SECTION 3.3 Authority; Non-Contravention; Approvals...................................................6
SECTION 3.4 Voting Requirements.......................................................................8
SECTION 3.5 Financing.................................................................................8
SECTION 3.6 No Violation of Law.......................................................................8
SECTION 3.7 Not an "Interested Shareholder."..........................................................8
SECTION 3.8 Going Concern; Solvency...................................................................9
ARTICLE IV REPRESENTATIONS AND WARRANTIES OF THE COMPANY..........................................................9
SECTION 4.1 Organization and Qualification............................................................9
SECTION 4.2 Capitalization............................................................................9
SECTION 4.3 Subsidiaries.............................................................................10
SECTION 4.4 Authority; Non-Contravention; Approvals..................................................10
SECTION 4.5 Reports and Financial Statements.........................................................11
SECTION 4.6 Absence of Undisclosed Liabilities.......................................................12
SECTION 4.7 Absence of Certain Changes or Events.....................................................12
SECTION 4.8 Litigation...............................................................................13
SECTION 4.9 No Violation of Law......................................................................13
SECTION 4.10 Compliance with Agreements...............................................................13
SECTION 4.11 Taxes....................................................................................14
SECTION 4.12 Employee Benefit Plan; ERISA.............................................................14
SECTION 4.13 Labor Controversies......................................................................16
SECTION 4.14 Environmental Matters....................................................................16
SECTION 4.15 Intellectual Property....................................................................17
SECTION 4.16 Title to Assets..........................................................................18
SECTION 4.17 Certain Relationships; Transactions with Management......................................19
SECTION 4.18 Material Contracts.......................................................................19
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SECTION 4.19 State Takeover Statutes..................................................................20
SECTION 4.20 Disclosure...............................................................................20
SECTION 4.21 Fairness Opinion of Financial Advisor....................................................20
SECTION 4.22 Acknowledgement of Assignment of Rights..................................................20
ARTICLE V CONDUCT OF BUSINESS PENDING THE MERGER.................................................................20
SECTION 5.1 Conduct of Business by the Company Pending the Merger....................................20
SECTION 5.2 Control of the Company's Operations......................................................22
SECTION 5.3 Acquisition Transactions.................................................................23
ARTICLE VI ADDITIONAL AGREEMENTS.................................................................................24
SECTION 6.1 Access to Information....................................................................24
SECTION 6.2 Expenses and Fees........................................................................25
SECTION 6.3 Agreement to Cooperate...................................................................26
SECTION 6.4 Public Statements........................................................................26
SECTION 6.5 Notification of Certain Matters..........................................................27
SECTION 6.6 Directors' and Officers' Indemnification and Insurance...................................27
SECTION 6.7 Financing................................................................................28
SECTION 6.8 Going Concern............................................................................28
SECTION 6.9 Employment Agreements....................................................................28
SECTION 6.10 State Takeover Statutes..................................................................29
SECTION 6.11 Closing Escrow...........................................................................29
SECTION 6.12 Pre-clearance of Articles of Merger......................................................29
SECTION 6.13 Tax Returns..............................................................................29
SECTION 6.14 Purchase and Sale Agreement..............................................................30
SECTION 6.15 Approval and Adoption of Plan of Merger..................................................30
ARTICLE VII CONDITIONS...........................................................................................30
SECTION 7.1 Conditions to Each Party's Obligation to Effect the Merger...............................30
SECTION 7.2 Conditions to Obligation of the Company to Effect the Merger.............................31
SECTION 7.3 Conditions to Obligations of Parent and Purchaser to Effect the Merger...................31
ARTICLE VIII TERMINATION, AMENDMENT AND WAIVER...................................................................31
SECTION 8.1 Termination..............................................................................31
SECTION 8.2 Effect of Termination....................................................................34
SECTION 8.3 Amendment................................................................................34
SECTION 8.4 Waiver...................................................................................34
ARTICLE IX GENERAL PROVISIONS....................................................................................34
SECTION 9.1 Non-Survival of Representations and Warranties...........................................34
SECTION 9.2 Brokers..................................................................................34
SECTION 9.3 Notices..................................................................................35
SECTION 9.4 Interpretation...........................................................................36
SECTION 9.5 Miscellaneous............................................................................36
SECTION 9.6 Governing Law/Jurisdiction and Venue.....................................................36
SECTION 9.7 Counterparts.............................................................................36
SECTION 9.8 Parties in Interest......................................................................37
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EXHIBITS
Exhibit A Conditions to the Offer
Exhibit B Plan of Merger
Exhibit C Articles of Merger
Exhibit D Form of Closing Certificate
Exhibit E Legal Opinion of Parent's Counsel
Exhibit F Legal Opinion of Company's Counsel
DISCLOSURE SCHEDULE
Section 4.2 Capitalization
Section 4.3 Subsidiaries
Section 4.4 Authority; Non-Contravention; Approvals
Section 4.6 Absence of Undisclosed Liabilities
Section 4.7 Absence of Certain Changes or Events
Section 4.8 Litigation
Section 4.9 No Violation of Law
Section 4.10 Compliance with Agreements
Section 4.11 Taxes
Section 4.12 Employee Benefit Plan; ERISA
Section 4.13 Labor Controversies
Section 4.14 Environmental Matters
Section 4.15 Intellectual Property
Section 4.16 Title to Assets
Section 4.17 Certain Relationships; Transactions with Management
Section 4.18 Material Contracts
Section 5.1 Conduct of Business by the Company Pending the Merger
Section 6.6 Directors' and Officers' Indemnification and Insurance
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MERGER AGREEMENT
MERGER AGREEMENT, dated as of February 1, 2002 (the "Agreement"), by
and among Ironbridge Holding LLC, a Delaware limited liability company
("Parent"), Ironbridge Acquisition Corp., a Pennsylvania corporation and a
wholly owned subsidiary of Parent ("Purchaser"), and Pitt-Des Moines, Inc., a
Pennsylvania corporation (the "Company").
WHEREAS, the Boards of Directors of Parent, Purchaser and the Company
have each determined that it is in the best interests of their respective
shareholders for Parent, through Purchaser, to acquire the Company upon the
terms and subject to the conditions set forth herein; and
WHEREAS, in furtherance of such acquisition, it is proposed that
Purchaser shall make a tender offer (the "Offer") to acquire all the issued and
outstanding shares of common stock, no par value, of the Company (the "Company
Common Stock"; shares of Company Common Stock being hereinafter collectively
referred to as the "Shares") for $33.90 per Share in cash (such consideration in
cash per Share paid pursuant to the Offer, being hereinafter referred to as the
"Per Share Amount") net to the seller, without interest thereon, upon the terms
and subject to the conditions of this Agreement and the Offer; and
WHEREAS, the Boards of Directors of Parent and Purchaser have
unanimously approved the making of the Offer and the transactions related
thereto; and
WHEREAS, the Board of Directors of the Company (the "Board") has
unanimously approved the making of the Offer and resolved and agreed, subject to
the terms and conditions contained herein, to recommend that holders of Shares
tender their Shares pursuant to the Offer; and
WHEREAS, also in furtherance of such acquisition, the Boards of
Directors of Parent, Purchaser and the Company have each approved this Agreement
and the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties, covenants and agreements contained herein, the
parties hereto, intending to be legally bound, agree as follows:
ARTICLE I
THE OFFER
SECTION 1.1 The Offer.
(a) Provided that this Agreement shall not have been terminated in
accordance with Section 8.1 and none of the events set forth in Exhibit A
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attached hereto and made a part hereof shall have occurred or be existing
(unless such event shall have been waived by Parent), Parent shall cause
Purchaser to commence, and Purchaser shall commence as promptly as practicable,
but in no event later than the fifth business day after the date of this
Agreement, the Offer at the Per Share Amount. The obligation of Purchaser to
accept for payment and pay for Shares tendered pursuant to the Offer shall be
subject only to (i) the condition (the "Minimum Condition") that the number of
Shares that, when combined with the Shares already owned by Purchaser and its
direct or indirect subsidiaries, constitute at least eighty percent (80%) of the
then outstanding Shares shall have been validly tendered and not withdrawn prior
to the expiration of the Offer, and (ii) the satisfaction or waiver of the other
conditions set forth in Exhibit A attached hereto. Purchaser expressly reserves
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the right to waive any such condition (other than the Minimum Condition), to
increase the Per Share Amount payable in the Offer, and to make any other
changes in the terms and conditions of the Offer (notwithstanding Section 8.3);
provided, however, that no change may be made which (i) decreases the Per Share
Amount payable in the Offer, (ii) reduces the maximum number of Shares to be
purchased in the Offer, (iii) imposes conditions to the Offer in addition to
those set forth in Exhibit A hereto, (iv) amends or changes the terms and
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conditions of the Offer in any manner materially adverse to the holders of
Shares (other than Parent and its subsidiaries) or (v) changes or waives the
Minimum Condition. The Per Share Amount shall, subject to applicable withholding
of taxes, be net to the seller, without interest thereon, upon the terms and
subject to the conditions of the Offer. Subject to the terms and conditions of
the Offer (including, without limitation, the Minimum Condition) and unless the
Company otherwise consents in writing, Purchaser shall accept for payment and
pay, as promptly as practicable after expiration of the Offer, for all Shares
validly tendered and not withdrawn.
(b) As soon as reasonably practicable on the date the Offer is
commenced, but in no event later than the fifth business day after the date of
this Agreement, Purchaser shall file with the Securities and Exchange Commission
("SEC") and disseminate to holders of Shares, to the extent required by law, a
Tender Offer Statement on Schedule TO (together with all amendments and
supplements thereto, the "Schedule TO") with respect to the Offer. The Schedule
TO shall contain or shall incorporate by reference an offer to purchase the
Shares, (the "Offer to Purchase") and forms of the related letter of transmittal
and any related summary advertisement (the Schedule TO, the Offer to Purchase
and such other documents, together with all supplements and amendments thereto,
being referred to herein collectively as the "Offer Documents"). Parent,
Purchaser and the Company agree to correct promptly any information provided by
any of them for use in the Offer Documents which shall have become false or
misleading, and Parent and Purchaser further agree to take all steps necessary
to cause the Schedule TO as so corrected to be filed with the SEC and the other
Offer Documents as so corrected to be disseminated to holders of Shares, in each
case as and to the extent required by applicable federal securities laws. The
Company and its counsel shall be given a reasonable opportunity to review and
comment on the Offer Documents and any amendments thereto prior to the filing
thereof with the SEC. The written information supplied or to be supplied by the
Company for inclusion in the Offer Documents will not contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made, in light of the circumstances under which
they were made, not misleading. Parent and Purchaser will provide the Company
and its counsel with a copy of any written comments or telephonic notification
of any oral comments Parent or Purchaser may receive from the SEC or its staff
with
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respect to the Offer Documents promptly after the receipt thereof and will
provide the Company and its counsel with a copy of any written response and
telephonic notification of any oral response of Parent, Purchaser or their
counsel. In the event that the Offer is terminated or withdrawn by Purchaser,
Parent and Purchaser shall cause all tendered Shares to be returned promptly
(and to the extent within their power, within five (5) business days) to the
registered holders of the Shares represented by the certificate or certificates
surrendered to the paying agent designated in the Offer Documents.
(c) Subject to the terms and conditions hereof, the Offer shall remain
open until midnight, New York City time, on the date that is twenty (20)
business days after the date the Offer is commenced (the initial "Expiration
Date," and any expiration time and date established pursuant to an authorized
extension of the Offer as so extended, also an "Expiration Date"); provided,
however, that without the consent of the Board, Purchaser may (and, at the
request of the Company, shall): (i) from time to time extend the Offer (each
such individual extension not to exceed ten (10) business days after the
previously scheduled Expiration Date), if at the scheduled Expiration Date any
of the conditions of the Offer shall not have been satisfied or waived, until
such time as such conditions are satisfied or waived to the extent permitted by
this Agreement; or (ii) extend the Offer for any period required by any rule,
regulation, interpretation or position of the SEC or the staff thereof
applicable to the Offer; provided, however, that, in no event shall the Offer be
extended beyond March 29, 2002. Parent agrees to cause Purchaser to extend the
Offer from time to time in accordance with this Section 1.1(c) for the shortest
time periods which it reasonably believes are necessary until the consummation
of the Offer if the conditions of the Offer shall not have been satisfied or
waived so long as this Agreement shall not have been terminated in accordance
with Article VIII hereof.
(d) Parent shall cause Purchaser to pay to Mellon Investor Services
LLC, or such other exchange agent as is reasonably satisfactory to Parent and
the Company (the "Paying Agent"), in immediately available United States funds
not later than 12:00 noon or such later time as the parties may agree on the
first business day immediately following the Expiration Date, an amount equal to
the product of the Per Share Amount and all issued and outstanding Shares on
such date excluding any treasury Shares and any Shares already owned by the
Parent or the Purchaser (the "Total Consideration"). The Total Consideration
shall be invested by the Paying Agent as directed by Parent in direct
obligations of the United States, obligations for which the full faith and
credit of the United States is pledged to provide for the payment of principal
and interest, commercial paper rated of the highest quality by Xxxxx'x Investors
Services, Inc. or Standard & Poor's Ratings Group or certificates of deposit,
bank repurchase agreements or bankers' acceptances of a commercial bank having
at least $1,000,000,000 in assets (collectively, "Permitted Investments") or in
money market funds which are invested in Permitted Investments, and any net
earnings with respect thereto shall be paid to Parent as and when requested by
Parent. The Paying Agent shall, promptly after the Expiration Date, pay the
applicable Per Share Amount to all holders of Shares duly tendered in the Offer.
Any of the Total Consideration not so paid pursuant to the Offer shall be
disbursed by the Paying Agent pursuant to the terms of the Plan of Merger (as
defined in Section 2.1). The Total Consideration shall not be used for any other
purpose except as otherwise agreed to by Parent.
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SECTION 1.2 Company Action.
(a) The Company hereby approves of and consents to the Offer and
represents that the Board, at a meeting duly called and duly held, has (A)
determined that this Agreement and the transactions contemplated hereby (the
"Transactions"), are fair to and in the best interests of the holders of Shares
other than Parent and its subsidiaries, (B) approved and adopted this Agreement
and the Transactions (which approval expressly included the approval of the
foregoing for the purposes of Sections 2538(b)(1) and 2555(1) of the
Pennsylvania Business Corporation Law of 1988, as amended (the "BCL") and
Section 8(a) of the Pennsylvania Takeover Disclosure Law but did not constitute
adoption or approval of the Plan of Merger (as defined in Section 2.1) for
purposes of Section 1924(b)(1)(ii) or Section 2539(1) of the BCL, which adoption
and approval shall be made by Purchaser and the Company, respectively, as
provided in Section 2.1 hereof) and (C) resolved to recommend, subject to the
conditions set forth herein, that the shareholders of the Company accept the
Offer. Subject to the fiduciary duties of the Board under applicable law as
advised by outside counsel, the Company hereby consents to the inclusion in the
Offer Documents of the recommendation of the Board described above.
(b) As soon as reasonably practicable after the date of commencement of
the Offer, the Company shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 (together with all amendments and supplements
thereto, the "Schedule 14D-9") containing, subject only to the fiduciary duties
of the Board under applicable law as advised in writing by outside counsel, the
recommendation of the Board described in Section 1.2(a) and shall disseminate
the Schedule 14D-9 to the extent required by Rule 14D-9 promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and any other
applicable federal securities laws. The Company, Parent and Purchaser agree to
correct promptly any information provided by any of them for use in the Schedule
14D-9 that shall have become materially false or misleading, and the Company
further agrees to take all steps necessary to cause the Schedule 14D-9 as so
corrected to be filed with the SEC and disseminated to holders of Shares, in
each case as and to the extent required by applicable federal securities laws.
Parent, Purchaser and their counsel shall be given a reasonable opportunity to
review and comment on the Schedule 14D-9 and any amendments thereto prior to the
filing thereof with the SEC. The Company will provide Parent and Purchaser and
their counsel with a copy of any written comments or telephonic notification of
any oral comments the Company may receive from the SEC or its staff with respect
to the Schedule 14D-9 promptly after the receipt thereof and will provide Parent
and Purchaser and their counsel with a copy of any written responses and
telephonic notification of any oral response of the Company or its counsel.
(c) The Company shall promptly after the execution and delivery of this
Agreement furnish Purchaser with mailing labels containing the names and
addresses of all record holders of Shares and with security position listings of
Shares held in stock depositories, each as of the most recent date reasonably
practicable, together with all other available listings and computer files
containing names, addresses and security position listings of record holders and
non-objecting beneficial owners of Shares as of the most recent date reasonably
practicable. The Company shall furnish Purchaser with such additional
information, including, without limitation, updated listings and computer files
of shareholders, mailing labels and security position listings,
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and such other assistance as Parent, Purchaser and their agents may reasonably
request. Subject to the requirements of applicable law and except for such steps
as are necessary to disseminate the Offer Documents and any other documents
necessary to consummate the Offer, Parent and Purchaser shall hold in confidence
the information contained in such labels, listings and files, shall use such
information only in connection with the Transactions, and, if this Agreement
shall be terminated in accordance with Section 8.1, shall deliver promptly to
the Company all copies of such information then in their possession.
SECTION 1.3 Closing.
The closing (the "Closing") of the transactions contemplated by this
Agreement shall take place at a location mutually agreeable to Parent and the
Company on the first business day immediately following the date on which the
last of the conditions set forth in Article VII is fulfilled or waived, or at
such other time and place as Parent and the Company shall agree (the date on
which the Closing occurs is referred to in this Agreement as the "Closing
Date").
ARTICLE II
THE MERGER
SECTION 2.1 Agreement to Effectuate the Merger.
(a) The Company's Board of Directors shall approve within the meaning
of Section 2539(1) of the BCL a plan of merger substantially in the form
attached hereto as Exhibit B (the "Plan of Merger") providing for the merger of
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Purchaser with and into the Company (the "Merger"). As soon as practicable on
the date of Purchaser's acceptance for payment for not less than 80% of all then
outstanding Shares in accordance with the Offer, and subject to the terms and
conditions of this Agreement, Parent shall cause Purchaser to adopt the Plan of
Merger on behalf of Purchaser pursuant to Section 1922(c) and 1924(a) of the BCL
and shall cause Purchaser's Board of Directors to adopt the Plan of Merger on
behalf of the Company in Purchaser's capacity as the owner of at least 80% of
the outstanding shares of each class of the Company.
(b) Upon effectiveness of the Merger at the Effective Time (as defined
in Section 2.2), the separate corporate existence of Purchaser shall cease and
the Company shall continue as the surviving corporation of the Merger (the
"Surviving Corporation").
(c) At the Effective Time, the Surviving Corporation shall succeed to
and assume all the rights and obligations of the Company and Purchaser in
accordance with the BCL and the Merger shall otherwise have the effects set
forth in Section 1929 of the BCL.
SECTION 2.2 Effective Time of the Merger.
As soon as practicable on the date of acceptance for payment for not
less than 80% of all the then outstanding Shares in accordance with the Offer,
Purchaser
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shall cause articles of merger in the form attached hereto and made a part
hereof as Exhibit C (the "Articles of Merger") to be filed with the Department
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of State of the Commonwealth of Pennsylvania in the manner required by Section
1927 of the BCL. The Merger shall become effective at such time (the "Effective
Time") as the Articles of Merger have been filed with the Department of State of
the Commonwealth of Pennsylvania in accordance with the BCL (the "Merger
Filing"). The parties acknowledge that it is their mutual desire and intent to
consummate the Merger as soon as practicable after the date hereof. Accordingly,
the parties shall use all reasonable efforts to consummate, as soon as
practicable, the transactions contemplated by this Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER
Parent and Purchaser each represent and warrant to the Company as
follows:
SECTION 3.1 Organization and Qualification.
Parent is a limited liability company duly organized, validly existing
and in good standing under the laws of the State of Delaware and has the
requisite power and authority to own, lease and operate its assets and
properties and to carry on its business as it is now being conducted. Purchaser
is a corporation duly organized, validly existing and in good standing under the
laws of the Commonwealth of Pennsylvania and has the requisite power and
authority to own, lease and operate its assets and properties and to carry on
its business as it is now being conducted. Each of Parent and Purchaser is
qualified to do business and is in good standing in each jurisdiction in which
the properties owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except where the failure to
be so qualified and in good standing will not, when taken together with all
other such failures, have a material adverse effect on the business, operations,
properties, assets, condition (financial or otherwise), results of operations or
prospects of Parent and its subsidiaries, taken as a whole, or Purchaser. True,
accurate and complete copies of each of Parent's and Purchaser's Articles of
Incorporation and By-laws or other similar organizational documents, in each
case as in effect on the date hereof, including all amendments thereto, have
heretofore been delivered to the Company.
SECTION 3.2 Capitalization.
The authorized capital stock of Purchaser consists of 1,000 shares of
common stock, par value $.01 per share, all of which are issued and outstanding
and are owned beneficially and of record by Parent.
SECTION 3.3 Authority; Non-Contravention; Approvals.
(a) Parent and Purchaser each have full corporate or similar power and
authority to enter into this Agreement and, subject to the Parent Required
Statutory Approvals (as defined in Section 3.3(c)), to consummate the
transactions contemplated hereby. This Agreement has been
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approved by the Boards of Directors of Purchaser and the manager of Parent, and
except for the adoption of the Plan of Merger by the Board of Directors of
Purchaser, no other corporate or company proceedings on the part of Parent or
Purchaser are necessary to authorize the execution and delivery of this
Agreement or the consummation by Parent and Purchaser of the transactions
contemplated hereby. This Agreement has been duly executed and delivered by each
of Parent and Purchaser, and, assuming the due authorization, execution and
delivery hereof by the Company, constitutes a valid and legally binding
agreement of each of Parent and Purchaser enforceable against each of them in
accordance with its terms, except that such enforcement may be subject to (i)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and (ii)
general equitable principles.
(b) The execution and delivery of this Agreement by each of Parent and
Purchaser do not violate, conflict with or result in a breach of any provision
of, or constitute a default (or an event which, with notice or lapse of time or
both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of Parent or any of
its subsidiaries under any of the terms, conditions or provisions of (i) the
respective organizational documents of Parent or any of its subsidiaries, (ii)
any statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any court or governmental authority
applicable to Parent or any of its subsidiaries or any of their respective
properties or assets or (iii) any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which Parent or any of its
subsidiaries is now a party or by which Parent or any of its subsidiaries or any
of their respective properties or assets may be bound or affected. The
consummation by Parent and Purchaser of the transactions contemplated hereby
will not result in any violation, conflict, breach, termination, acceleration or
creation of liens under any of the terms, conditions or provisions described in
clauses (i) through (iii) of the preceding sentence, subject in the case of the
terms, conditions or provisions described in clause (ii) above, to obtaining
(prior to the Effective Time) the Parent Required Statutory Approvals.
(c) Except for (i) the making of the Merger Filing with the Department
of State of the Commonwealth of Pennsylvania in connection with the Merger, (ii)
the filing of the Schedule TO with the SEC, and (iii) the filing with the
Pennsylvania Securities Commission of a notice pursuant to Section 8(A) of the
Pennsylvania Takeover Disclosure Law and any other "blue sky" filings required
by any other state securities commission (the filings and approvals referred to
in clauses (i), (ii) and (iii) are collectively referred to as the "Parent
Required Statutory Approvals"), no declaration, filing or registration with, or
notice to, or authorization, consent or approval of, any governmental or
regulatory body or authority is necessary for the execution and delivery of this
Agreement by Parent or Purchaser or the consummation by Parent or Purchaser of
the transactions contemplated hereby.
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SECTION 3.4 Voting Requirements.
No action by the members of Parent or the shareholders of the manager
of Parent is required to approve this Agreement and the transactions
contemplated hereby. Parent, as the sole shareholder of Purchaser, has approved
this Agreement except that, as set forth in Section 2.1(a), neither Parent nor
Purchaser has taken any action as of the date hereof that would constitute
adoption by the Board of Directors of Purchaser of the Plan of Merger within the
meaning of Section 1924(b)(1)(ii) and Section 1924(b)(3) of the BCL.
SECTION 3.5 Financing.
Parent and Purchaser have delivered to the Company true and complete
copies of the Credit Agreement, dated February 1, 2002 (the "Credit Agreement"),
by and among Utrecht-America Finance Co., a Delaware corporation, as initial
lender, Cooperatieve Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank
Nederland", New York Branch, as agent for the lenders (collectively, "Lender")
and Purchaser, pursuant to which Purchaser will have available the necessary
funds to consummate the transactions contemplated hereby. The Credit Agreement
constitutes a valid and legally binding agreement of Parent and Purchaser
enforceable against them in accordance with its terms. The Credit Agreement has
not been modified or supplemented in any way and is in full force and effect.
SECTION 3.6 No Violation of Law.
Neither the Parent nor any of its subsidiaries is in violation of or
has been given notice or been charged with any violation of, any law, statute,
order, rule, regulation, ordinance or judgment (including, without limitation,
any applicable environmental law, ordinance or regulation) of any governmental
or regulatory body or authority, except for violations which, in the aggregate,
could not reasonably be expected to have a material adverse effect on the
business, operations, properties, assets, condition (financial or otherwise) or
results of operations of the Parent and its subsidiaries, taken as a whole. As
of the date of this Agreement, to the knowledge of the Parent, no investigation
or review by any governmental or regulatory body or authority is pending or
threatened, nor has any governmental or regulatory body or authority indicated
an intention to conduct the same. The Parent and its subsidiaries have all
permits, licenses, franchises, variances, exemptions, orders and other
governmental authorizations, consents and approvals necessary to conduct their
businesses as presently conducted (collectively, the "Parent Permits"). The
Parent and its subsidiaries are not in violation of the terms of any Parent
Permit, except for delays in filing reports or violations which, alone or in the
aggregate, would not have a material adverse effect on the business, operations,
properties, assets, condition (financial or otherwise) or results of operations
of the Parent and its subsidiaries, taken as a whole.
SECTION 3.7 Not an "Interested Shareholder."
As of the date hereof, neither the Parent nor any of its subsidiaries
is: (i) an "interested shareholder" of the Company as that term is defined in
Section 2538 of the BCL; or (ii) an "Interested Shareholder" of the Company as
that term is defined in the Amended and Restated Articles of Incorporation of
the Company.
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SECTION 3.8 Going Concern; Solvency.
As of the date hereof and again as of the Effective Time, both before
and after giving effect to the transactions contemplated hereby, with respect to
each of Parent and Purchaser and, to the knowledge of Parent and Purchaser, with
respect to the Surviving Corporation, individually and collectively, (i) all of
such entity's known and estimated debts and obligations ("Debts") have been, or
will be in accordance with their terms, paid in full; (ii) the sum of such
entity's Debts is not greater than the fair market value of its assets; (iii)
such entity has and will pay its Debts as they become due; and (iv) such entity
has reasonably sufficient capital to conduct its business, to engage in the
transactions contemplated hereby, to satisfy its Debts, contingencies and
obligations (including, without limitation, federal, state and local income tax
obligations) in the ordinary course as they become due, and as it relates to the
Parent and the Surviving Corporation, to continue as a going concern from and
after the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and Purchaser as follows:
SECTION 4.1 Organization and Qualification.
The Company is a corporation duly organized, validly existing and in
good standing under the laws of the Commonwealth of Pennsylvania and has the
requisite corporate power and authority to own, lease and operate its assets and
properties and to carry on its business as it is now being conducted. The
Company is qualified to do business and is in good standing in each jurisdiction
in which the properties owned, leased or operated by it or the nature of the
business conducted by it makes such qualification necessary, except where the
failure to be so qualified and in good standing will not, when taken together
with all other such failures, have a material adverse effect on the business,
operations, properties, assets, condition (financial or otherwise), or results
of operations of the Company and its subsidiaries, taken as a whole, with the
determination of materiality being made, in each case, as if after giving effect
to all of the transactions contemplated by this Agreement, the Asset Sale Escrow
Agreement, and the Purchase and Sale Agreement (each as hereinafter defined) (a
"Material Adverse Effect"). True, accurate and complete copies of the Company's
Amended and Restated Articles of Incorporation and By-laws, in each case as in
effect on the date hereof, including all amendments thereto, have heretofore
been delivered to Parent.
SECTION 4.2 Capitalization.
(a) The authorized capital stock of the Company consists of (i)
15,000,000 Shares and (ii) 3,000,000 shares of Preferred Stock, par value $0.01
per share (the "Preferred Shares"). As of January 30, 2002, 8,946,468 Shares
were issued, of which 1,327,798 Shares were held in treasury, and no Preferred
Shares were issued or outstanding. All of such Shares are validly issued and are
fully paid, nonassessable and free of pre-emptive rights. No subsidiary of the
Company holds any Shares.
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(b) Except as set forth in Section 4.2 of the disclosure schedule that
has been provided by the Company to the Parent on or prior to the date hereof
that expressly relates to this Agreement (the "Disclosure Schedule"), as of the
date hereof there are, and at the Effective Time there will be, no outstanding
subscriptions, options, calls, contracts, commitments, understandings,
restrictions, arrangements, rights or warrants, including any right of
conversion, redemption or exchange under any outstanding security, instrument or
other agreement and also including any rights plan or other anti-takeover
agreement, obligating the Company or any subsidiary of the Company to issue,
deliver or sell, or cause to be issued, delivered or sold, additional shares of
the capital stock of the Company or obligating the Company or any subsidiary of
the Company to grant, extend or enter into any such agreement or commitment.
Except as set forth in Section 4.2 of the Disclosure Schedule, there are no
voting trusts, proxies or other agreements or understandings to which the
Company or any subsidiary of the Company is a party or is bound with respect to
the voting of any shares of capital stock of the Company.
SECTION 4.3 Subsidiaries.
Section 4.3 of the Disclosure Schedule lists all of the Company's
subsidiaries. Each direct and indirect corporate subsidiary of the Company is
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation and has the requisite power and authority to own,
lease and operate its assets and properties and to carry on its business as it
is now being conducted. Each subsidiary of the Company is qualified to do
business, and is in good standing, in each jurisdiction in which the properties
owned, leased or operated by it or the nature of the business conducted by it
makes such qualification necessary, except where the failure to be so qualified
and in good standing will not, when taken together with all such other failures,
have a material adverse effect on the business, operations, properties, assets,
condition (financial or otherwise) or results of operations of any of such
subsidiaries. All of the outstanding shares of capital stock of each corporate
subsidiary of the Company are validly issued, fully paid, nonassessable and free
of pre-emptive rights and are owned directly or indirectly by the Company free
and clear of any liens, claims, encumbrances, security interests, equities,
charges and options of any nature whatsoever. There are no subscriptions,
options, warrants, rights, calls, contracts, voting trusts, proxies or other
commitments, understandings, restrictions or arrangements relating to the
issuance, sale, voting, transfer, ownership or other rights with respect to any
shares of capital stock of any corporate subsidiary of the Company, including
any right of conversion or exchange under any outstanding security, instrument
or agreement.
SECTION 4.4 Authority; Non-Contravention; Approvals.
(a) The Company has full corporate power and authority to enter into
this Agreement and, subject to the Company Required Statutory Approval (as
defined in Section 4.4(c)), to consummate the transactions contemplated hereby.
Each of this Agreement, that certain Asset Purchase Agreement (the "Purchase and
Sale Agreement") by and among the Company, PDM Bridge Corp. and Steel Bridges,
LLC (the "Asset Buyer") and that certain escrow agreement, executed
simultaneously herewith, pursuant to which the Asset Buyer has agreed to deposit
certain funds with the escrow agent thereunder relating to the transactions
contemplated thereby (the "Asset Sale Escrow Agreement") has been approved by
the Board, and no other corporate
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proceedings on the part of the Company are necessary to authorize the execution
and delivery of each such agreement or the consummation by the Company of the
transactions contemplated hereby and thereby. Each of this Agreement, the
Purchase and Sale Agreement, and the Asset Sale Escrow Agreement has been duly
executed and delivered by the Company, and, assuming the due authorization,
execution and delivery hereof by Parent and Purchaser, constitutes a valid and
legally binding agreement of the Company, enforceable against the Company in
accordance with its terms, except that such enforcement may be subject to (a)
bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting or relating to enforcement of creditors' rights generally and (b)
general equitable principles.
(b) The execution and delivery of this Agreement by the Company do not
violate, conflict with or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company or any of its
subsidiaries under any of the terms, conditions or provisions of (i) the
respective charters or by-laws of the Company or any of its subsidiaries, (ii)
any statute, law, ordinance, rule, regulation, judgment, decree, order,
injunction, writ, permit or license of any court or governmental authority
applicable to the Company or any of its subsidiaries or any of their respective
properties or assets, or (iii) any note, bond, mortgage, indenture, deed of
trust, license, franchise, permit, concession, contract, lease or other
instrument, obligation or agreement of any kind to which the Company or any of
its subsidiaries is now a party or by which the Company or any of its
subsidiaries or any of their respective properties or assets may be bound or
affected. The consummation by the Company of the transactions contemplated
hereby will not result in any violation, conflict, breach, termination,
acceleration or creation of liens under any of the terms, conditions or
provisions described in clauses (i) through (iii) of the preceding sentence,
subject (x) in the case of the terms, conditions or provisions described in
clause (ii) above, to obtaining (prior to the Effective Time) the Company
Required Statutory Approval and (y) in the case of the terms, conditions or
provisions described in clause (iii) above, to obtaining (prior to the Effective
Time) consents required from commercial lenders, lessors or other third parties
each as listed in Section 4.4 of the Disclosure Schedule.
(c) Except for the filing of the Schedule 14D-9 with the SEC pursuant
to the Exchange Act (the "Company Required Statutory Approval"), no declaration,
recording or registration with, or notice to, or authorization, consent or
approval of, any governmental or regulatory body or authority is necessary for
the execution and delivery of this Agreement by the Company or the consummation
by the Company of the transactions contemplated hereby, other than such
declarations, filings, registrations, notices, authorizations, consents or
approvals which, if not made or obtained, as the case may be, would not, in the
aggregate, have a Material Adverse Effect.
SECTION 4.5 Reports and Financial Statements.
At least since January 1, 1996, the Company has filed with the SEC all
material forms, statements, reports and documents (including all exhibits,
amendments and supplements thereto)
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required to be filed by it under each of the Securities Act of 1933, as amended
(the "Securities Act"), the Exchange Act and the respective rules and
regulations thereunder, all of which, as amended if applicable, complied in all
material respects with all applicable requirements of the appropriate act and
the rules and regulations thereunder. The Company has previously made available
to Parent copies of its (a) Annual Reports on Form 10-K as filed with the SEC,
(b) proxy and information statements relating to (i) any meetings of its
shareholders (whether annual or special) and (ii) actions by written consent in
lieu of a shareholders' meeting, each from January 1, 1996 until the date
hereof, and (c) all other reports, including quarterly reports, or registration
statements filed by the Company with the SEC, in each case, since January 1,
1996 (the documents referred to in clauses (a), (b) and (c), together with any
exhibits, any amendments thereto, and any information incorporated by reference
therein, are collectively referred to as the "Company SEC Reports"). At the time
of filing, the Company SEC Reports 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. The audited consolidated financial
statements and unaudited interim consolidated financial statements of the
Company included in the Company SEC Reports (collectively, the "Company
Financial Statements") have been prepared in accordance with generally accepted
accounting principles applied on a consistent basis (except as may be indicated
therein or in the notes thereto) and fairly present in all material respects the
financial position of the Company and its subsidiaries as of the dates thereof
and the results of their operations and changes in financial position for the
periods then ended, subject, in the case of the unaudited interim financial
statements, to normal year-end audit adjustments and any other adjustments
described therein.
SECTION 4.6 Absence of Undisclosed Liabilities.
Except as set forth in Section 4.6 of the Disclosure Schedule, neither
the Company nor any of its subsidiaries had at September 30, 2001, or has
incurred since that date, any liabilities or obligations (whether absolute,
accrued, contingent or otherwise) of any nature, except (a) liabilities,
obligations or contingencies (i) which are accrued or reserved against in the
Company Financial Statements or reflected in the notes thereto or (ii) which
were incurred after September 30, 2001, and, other than with respect to any
liability, obligation or contingency for or relating to borrowed money, were
incurred in the ordinary course of business and consistent with past practices,
(b) liabilities, obligations or contingencies which (i) would not, in the
aggregate, have a Material Adverse Effect, or (ii) have been discharged or paid
in full prior to the date hereof, and (c) liabilities and obligations which are
of a nature not required to be reflected in the consolidated financial
statements of the Company and its subsidiaries prepared in accordance with
generally accepted accounting principles consistently applied and which were
incurred in the normal course of business.
SECTION 4.7 Absence of Certain Changes or Events.
Except as set forth in Section 4.7 of the Disclosure Schedule, since
the date of the most recent Company SEC Report, there has not been a Material
Adverse Effect.
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SECTION 4.8 Litigation.
Except as set forth in Section 4.8 of the Disclosure Schedule, there
are no claims, suits, actions or proceedings pending or, to the knowledge of the
Company, threatened against, relating to or affecting the Company or any of its
subsidiaries, before any court, governmental department, commission, agency,
instrumentality or authority, or any arbitrator that seek to restrain, or could
reasonably be expected to prevent or materially delay, the consummation of the
Merger or which could reasonably be expected, either alone or in the aggregate
with all such claims, actions or proceedings, to have a Material Adverse Effect.
Except as set forth in Section 4.8 of the Disclosure Schedule, neither the
Company nor any of its subsidiaries is subject to any judgment, decree,
injunction, rule or order of any court, governmental department, commission,
agency, instrumentality or authority, or any arbitrator which prohibits,
restricts or could reasonably be expected to materially delay, the consummation
of the transactions contemplated hereby or would have any Material Adverse
Effect.
SECTION 4.9 No Violation of Law.
Except as disclosed in Section 4.9 of the Disclosure Schedule, neither
the Company nor any of its subsidiaries is in violation of or has been given
notice or been charged with any violation of, any law, statute, order, rule,
regulation, ordinance or judgment (including, without limitation, any applicable
environmental law, ordinance or regulation) of any governmental or regulatory
body or authority, except for violations which, in the aggregate, could not
reasonably be expected to have a Material Adverse Effect. Except as disclosed in
Section 4.9 of the Disclosure Schedule, as of the date of this Agreement, to the
knowledge of the Company, no investigation or review by any governmental or
regulatory body or authority is pending or threatened, nor has any governmental
or regulatory body or authority indicated an intention to conduct the same. The
Company and its subsidiaries have all material permits, licenses, franchises,
variances, exemptions, orders and other material governmental authorizations,
consents and approvals necessary to conduct their businesses as presently
conducted (collectively, the "Company Permits"). The Company and its
subsidiaries are not in violation of the terms of any Company Permit, except for
delays in filing reports or violations which, alone or in the aggregate, would
not have a Material Adverse Effect. Except as disclosed in Section 4.9 of the
Disclosure Schedule, the Company and its subsidiaries have complied in all
material respects with all laws, statutes, orders, rules, regulations,
ordinances or judgments (including, without limitation, the Federal Worker
Adjustment Retraining Notification Act, 29 U.S.C. ss. 2101 et seq. ("WARN"), or
any state law equivalent) of any governmental or regulatory body or authority in
connection with each disposition of material assets of the Company or any of its
subsidiaries that has occurred prior to the date of this Agreement and neither
the Company nor any of its subsidiaries has been notified of any claim or
threatened claim for indemnification or other relief made by any person
resulting from or arising in connection with any such asset sale.
SECTION 4.10 Compliance with Agreements.
Except as disclosed in Section 4.10 of the Disclosure Schedule, neither
the Company nor any of its subsidiaries is in breach or violation of or in
default in the performance or observance
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of any term or provision of, and no event has occurred which, with lapse of time
or action by a third party, could result in a default under, (a) the respective
charters, by-laws or similar organizational instruments of the Company or any of
its subsidiaries or (b) any contract, commitment, agreement, indenture,
mortgage, loan agreement, note, lease, bond, license, approval or other
instrument to which the Company or any of its subsidiaries is a party or by
which any of them is bound or to which any of their property is subject, which
breaches, violations and defaults, would have, in the aggregate, a Material
Adverse Effect.
SECTION 4.11 Taxes.
The Company and its subsidiaries have (i) duly filed with the
appropriate governmental authorities all tax returns required to be filed by
them for all periods ending on or prior to the Effective Time and (ii) duly paid
in full or made adequate provision for the payment of all taxes for all periods
ending at or prior to the date hereof (including, without limitation, all
withholding and other employee related taxes), except in the case of both
clauses (i) and (ii), for failures that would not have a Material Adverse
Effect. All such tax returns are true, correct and complete in all material
respects. The liabilities and reserves for taxes reflected in the Company
balance sheet included in the latest Company SEC Report are adequate to cover
all material taxes for all periods ending at or prior to the date hereof and
there are no material liens for taxes upon any property or asset of the Company
or any subsidiary thereof, except for liens for taxes not yet due. There are no
unresolved issues of law or fact arising out of a notice of deficiency, proposed
deficiency or assessment from the Internal Revenue Service or any other
governmental taxing authority with respect to taxes of the Company or any of its
subsidiaries which, if decided adversely, singly or in the aggregate, would have
a Material Adverse Effect. Neither the Company nor any of its subsidiaries is a
party to any agreement providing for the allocation or sharing of taxes with any
entity that is not, directly or indirectly, a wholly owned corporate subsidiary
of the Company.
SECTION 4.12 Employee Benefit Plan; ERISA.
(a) Section 4.12 of the Disclosure Schedule identifies all employee
benefit plans as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974, as amended, and any successor statute thereto, and the
rules and regulations promulgated thereunder ("ERISA"), that (i) is subject to
any provision of ERISA, (ii) is maintained, administered, or contributed to by
the Company or any entity which, together with the Company, is treated as a
single employer under Section 414 of the Internal Revenue Code of 1986, as
amended (the "Code") ("ERISA Affiliate"), (iii) covers any employee or former
employee of the Company or any subsidiary ("Employee Plan") or (iv) with respect
to which the Company or any ERISA Affiliate has any unpaid liability or could
reasonably be expected to incur any liability. Section 4.12 of the Disclosure
Schedule identifies all Employee Plans which are Multi-Employer Plans within the
meaning of Section 3(37) of ERISA or Multiple Employer Plans within the meaning
of Section 413(c) of the Code. Section 4.12 of the Disclosure Schedule
identifies all material employment, severance and similar contracts,
arrangements and policies, and all material plans and arrangements (whether or
not written) providing for severance benefits, insurance coverage (including any
self-insured arrangements), workers' compensation, disability benefits,
supplemental unemployment benefits, vacation benefits, retirement, stock
options, stock
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appreciation rights or other forms of equity and non-equity based incentive
benefits that (a) are not Employee Plans, (b) has maintained, administered, or
contributed to by the Company or any subsidiary, (c) covers or covered any
United States employee or former employee of the Company or any subsidiary or
(d) with respect to which the Company or any subsidiary has any unpaid liability
or could reasonably be expected to incur any liability (each of the foregoing a
"Benefit Arrangement"). Copies of Employee Plans and Benefit Arrangements have
been furnished or made available to the Parent (together with the three (3) most
recent annual reports and actuarial valuations prepared in connection with each
Employee Plan, to the extent applicable). Except as disclosed in Section 4.12 of
the Disclosure Schedule, each Employee Plan and Benefit Arrangement has been
maintained in compliance with its terms and with the requirements prescribed by
any and all statutes, orders, rules and regulations, including but not limited
to ERISA and the Code, that are applicable to such Employee Plan or Benefit
Arrangement.
(b) Except as disclosed in Section 4.12 of the Disclosure Schedule, (i)
there have been no prohibited transactions within the meaning of Section 406 or
407 of ERISA or Section 4975 of the Code with respect to any of the Benefit
Arrangements or Employee Plans that could result in penalties, taxes or
liabilities, (ii) except for premiums due, none of the Company or any of its
ERISA Affiliates has any outstanding liability, whether measured alone or in the
aggregate, under Title IV of ERISA nor has any event occurred or could any event
reasonably be expected to occur nor does any condition exist or could any
condition reasonably be expected to exist which could reasonably be expected to
result in any such liability, (iii) neither the Pension Benefit Guaranty
Corporation nor any plan administrator has instituted proceedings to terminate
any of the Benefit Arrangements or Employee Plans subject to Title IV of ERISA
other than in a "standard termination" described in Section 404(b) of ERISA,
(iv) none of the Benefit Arrangements or Employee Plans has incurred any
"accumulated funding deficiency" (as defined in Section 302 of ERISA and Section
412 of the Code), whether or not waived, (v) each of the Benefit Arrangements
and Employee Plans has been operated and administered in all material respects
in accordance with applicable laws during the period of time covered by the
applicable statute of limitations, (vi) each of the Benefit Arrangements and
Employee Plans which is intended to be "qualified" within the meaning of Section
401(a) of the Code has been determined by the Internal Revenue Service to be so
qualified, such determination has not been modified, revoked or limited by
failure to satisfy any condition thereof or by a subsequent amendment thereto or
a failure to amend, except that it may be necessary to make additional
amendments retroactively to maintain the "qualified" status of such Benefit
Arrangements or Employee Plans, and the period for making any such necessary
retroactive amendments has not expired, and no event has occurred or could
reasonably be expected to occur nor does any condition exist or could reasonably
be expected to exist which could reasonably be expected to result in any such
revocation or limitation, (vii) with respect to Employee Plans which are
Multi-Employer Plans, neither the Company nor any of its subsidiaries has, made
or suffered a "complete withdrawal" or a "partial withdrawal", as such terms are
respectively defined in Sections 4203, 4204 and 4205 of ERISA and, to the best
knowledge of the Company and its subsidiaries, no event has occurred or is
expected to occur which presents a material risk of a complete or partial
withdrawal under said Sections 4203, 4204 and 4205, (viii) to the best knowledge
of the Company and its subsidiaries, there are no material pending, threatened
or anticipated claims involving any of the Benefit Arrangements or Employee
Plans other than
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claims for benefits in the ordinary course, and (ix) the Company and its
subsidiaries have no current material liability, whether measured alone or in
the aggregate, for plan termination or withdrawal (complete or partial) under
Title IV of ERISA based on any plan to which any entity that would be deemed one
employer with the Company and its subsidiaries under Section 4001 of ERISA or
Section 414 of the Code contributed during the period of time covered by the
applicable statute of limitations (the "Company Controlled Group Plans"), and
the Company and its subsidiaries do not reasonably anticipate that any such
liability will be asserted against the Company or any of its subsidiaries. None
of the Company Controlled Group Plans has an "accumulated funding deficiency"
(as defined in Section 302 of ERISA and 412 of the Code).
(c) Section 4.12 of the Disclosure Schedule contains a true and
complete summary or list of or otherwise describes all Employee Plans, Benefit
Arrangements, material employment contracts and other employee benefit
arrangements with "change of control" or similar provisions and all severance
agreements with executive officers. Except as disclosed on Section 4.12 of the
Disclosure Schedule, there are no payments due or other obligations owing to any
employees or any other persons as the result of any "change of control" or
similar provision in any agreement to which the Company or any of its
subsidiaries is a party.
(d) Except as disclosed on Section 4.12 of the Disclosure Schedule, no
Employee Plan which is a Welfare Plan within the meaning of Section 3(1) of
ERISA provides for retiree benefits.
SECTION 4.13 Labor Controversies.
Except as set forth in Section 4.13 of the Disclosure Schedule, (a)
there are no significant controversies pending or, to the knowledge of the
Company, threatened between the Company or its subsidiaries and any
representatives of any of their employees, (b) to the knowledge of the Company,
there are no organizational efforts presently being made involving any of the
presently unorganized employees of the Company or any of its subsidiaries, (c)
the Company and its subsidiaries have, to the knowledge of the Company, complied
in all material respects with respect to all employees, with all laws relating
to the employment of labor, including, without limitation, any provisions
thereof relating to wages, hours, collective bargaining, and the payment of
social security and similar taxes except for failures to comply which, alone or
in the aggregate, would not have a Material Adverse Effect, and (d) no person
has, to the knowledge of the Company, asserted that the Company or any of its
subsidiaries is liable in any amount for any arrears of wages or any taxes or
penalties for failure to comply with any of the foregoing. Except as set forth
in Section 4.13 of the Disclosure Schedule, there are no proceedings now pending
or threatened against the Company before the National Labor Relations Board, any
state department of labor, any state commission on human rights, the Equal
Employment Opportunity Commission or any other local, state or federal agencies
having jurisdiction over employee rights nor have there been any such
proceedings since January 1, 2001.
SECTION 4.14 Environmental Matters.
(a) Except as set forth in Section 4.14 of the Disclosure Schedule, (i)
the Company and its subsidiaries have conducted their respective businesses in
compliance with all applicable Environmental Laws (as hereinafter defined),
including, without limitation, having all permits,
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licenses and other approvals and authorizations necessary for the operation of
their respective businesses as presently conducted, (ii) neither the Company nor
any of its subsidiaries has received any notices, demand letters or requests for
information from any federal, state, local or foreign governmental entity or
third party indicating that the Company or any of its subsidiaries may be in
violation of, or liable under, any Environmental Law in connection with the
ownership or operation of their businesses, (iii) there are no civil, criminal
or administrative actions, suits, demands, claims, hearings, investigations or
proceedings pending or to Company's knowledge threatened, against the Company or
any of its subsidiaries relating to any violation, or alleged violation, of any
Environmental Law, (iv) no reports have been filed, or are required to be filed,
by the Company or any of its subsidiaries concerning the release in violation of
any applicable Environmental Law of any Hazardous Substance (as hereinafter
defined), or the threatened or actual violation of any Environmental Law, (v)
there have been no environmental assessments or tests which are in the
possession of the Company or any of its subsidiaries relating to the activities
of the Company or its subsidiaries which have not been delivered to Parent prior
to the date hereof, and (vi) neither the Company, its subsidiaries nor any of
their respective properties are subject to any material liabilities or
expenditures relating to any suit, settlement, court order, administrative
order, regulatory requirement, judgment or claim asserted or arising under any
Environmental Law, except for such matters covered in foregoing clauses (i)
through (vi) that, singly or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
(b) As used herein, "Environmental Law" means any federal, state, local
or foreign law, statute, ordinance, rule, regulation, code, license, permit,
authorization, approval, consent, order, judgment, decree, injunction,
requirement or agreement with any governmental entity relating to (i) the
protection, preservation or restoration of the environment including, without
limitation, air, surface water, groundwater, surface land, subsurface land, or
the protection of human health from exposure to Hazardous Substances or
protection of employees in the workplace (exclusive of any xxxxxxx'x
compensation laws) or (ii) the exposure to, or the use, storage, treatment,
generation, transportation, processing, handling, release or disposal of
Hazardous Substances, in each case as amended and as in effect on the date
hereof.
(c) As used herein, "Hazardous Substance" means any substance presently
listed, deemed, designated or classified as hazardous, toxic, radioactive,
caustic or otherwise hazardous including petroleum, its derivatives, byproducts
and other hydrocarbons regulated under any Environmental Law.
SECTION 4.15 Intellectual Property.
(a) Section 4.15(a) of the Disclosure Schedule sets forth a true and
complete list and a brief description, including a complete identification of
each patent and patent application and each trademark or copyright registration
or application for registration thereof, of all Intellectual Property (as herein
defined) owned or licensed by the Company and its subsidiaries. Except as
otherwise described in Section 4.15(a) of the Disclosure Schedule, in each case
where a registration or patent or application for registration or patent listed
in Section 4.15(a) of the Disclosure Schedule is held by assignment, the
assignment has been duly recorded with the United States Patent Office,
Trademark Office or Copyright Office or state trademark office from which the
original patent or registration issued or before which the application for
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trademark or copyright registration is pending. Except as disclosed in Section
4.15(a) of the Disclosure Schedule, to the knowledge of the Company, the rights
of the Company or any subsidiary, as the case may be, in or to such Intellectual
Property do not conflict with or infringe on the rights of any other person, and
neither the Company nor any subsidiary has received any claim or written notice
from any person, to such effect.
(b) Except as disclosed in Section 4.15(b) of the Disclosure Schedule:
(i) all the Intellectual Property that is owned by the Company and its
subsidiaries is free and clear of any mortgages, liens, pledges, charges or
encumbrances of any nature whatsoever and (ii) no actions have been made or
asserted or are pending (nor, to the best knowledge of the Company, has any such
action been threatened) against the Company or any subsidiary either (A) based
upon or challenging or seeking to deny or restrict the use by the Company or any
subsidiary of any of its Intellectual Property or (B) alleging that any services
provided, or products manufactured or sold by the Company or any subsidiary are
being provided, manufactured or sold in violation of any patents or trademarks,
or any other rights of any person. To the best knowledge of the Company and
except as disclosed in Section 4.15(b) of the Disclosure Schedule, no person is
using any patents, copyrights, trademarks, service marks, or trade names owned
by the Company and its subsidiaries or that infringe upon the Intellectual
Property or upon the rights of the Company or any subsidiary therein. Except as
disclosed in Section 4.15(b) of the Disclosure Schedule, neither the Company nor
any subsidiary has granted any license or other right to any other person with
respect to the Intellectual Property owned by the Company and its subsidiaries.
The consummation of the transactions contemplated by this Agreement will not
result in the termination or impairment of any of the Intellectual Property
owned by the Company and its subsidiaries.
(c) For purposes hereof, the term "Intellectual Property" shall mean
all material computer software, patent and registrations for trademarks, trade
names, service marks and copyrights which are unexpired as of the date of this
Agreement and which are used in connection with the operation of the Company's
and its subsidiaries' businesses, as well as all applications pending on said
date for patents or for trademarks, trade name, service xxxx or copyright
registrations.
SECTION 4.16 Title to Assets.
Except as set forth in Section 4.16 of the Disclosure Schedule, the
Company and each of its subsidiaries has marketable title in fee simple to all
its real property and marketable title to all its leasehold interests and other
properties, as reflected in the most recent balance sheet included in the
Company Financial Statements, except for properties and assets that have been
disposed since the date of such balance sheet, free and clear of all mortgages,
liens, pledges, charges or encumbrances of any nature whatsoever, except (a) the
lien of current taxes, payments of which are not yet delinquent, (b) such
imperfections in title and easements and encumbrances, if any, as are not
substantial in character, amount or extent and do not materially detract from
the value, or interfere with the present use of the property subject thereto or
affected thereby, or otherwise materially impair the Company's business
operations (in the manner presently carried on by the Company), or (c) for such
matters which, singly or in the aggregate, could not reasonably be expected to
have a Material Adverse Effect. All leases under which the Company or any of its
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subsidiaries leases any real or personal property have been delivered to Parent
and are in full force and effect and valid and binding obligations of the
Company or the relevant subsidiary and each other party thereto effective in
accordance with their respective terms, and, to the knowledge of the Company,
there is not, under any of such leases, any existing default or event which with
notice or lapse of time or both would become a default other than defaults under
such leases which in the aggregate will not have a Material Adverse Effect.
SECTION 4.17 Certain Relationships; Transactions with Management.
(a) Section 4.17 of the Disclosure Schedule, taken together with the
documents listed as exhibits to the Company's Form 10-K filed with the SEC on
April 2, 2001, accurately describe all relationships between or among the
Company, its directors, its officers or its significant shareholders.
(b) Except as described in Section 4.17 of the Disclosure Schedule, or
in the documents listed as exhibits to the Company's Form 10-K filed with the
SEC on April 2, 2001, the Company is not a party to any contract, lease or
commitment with any officer, director or significant shareholder (or any
affiliate of any such officer, director or shareholder) of the Company.
(c) Neither the Company nor any of the directors, officers or
significant shareholders of the Company (and/or any member of their respective
families) has a financial interest (direct or indirect) in any competitor,
supplier or customer of the Company.
SECTION 4.18 Material Contracts.
Except as set forth in Section 4.18 of the Disclosure Schedule and
except for (i) the Purchase and Sale Agreement, (ii) the Contracts (as defined
in the Purchase and Sale Agreement), (iii) any agreements, contracts and
commitments that are to be fully performed by the Company or any subsidiary of
the Company at or prior to the Effective Time, and (iv) any agreements or
contracts that have previously been validly assigned to or duly assumed by a
third party in connection with the sale or divestiture by the Company of a
business unit of the Company, neither the Company nor any subsidiary of the
Company is bound by any agreement, contract or commitment that involves base
payments or the performance of services by it of an amount or value (as measured
by the revenue derived therefrom during fiscal year 2000) in excess of $20,000
annually or $1,500,000 in the aggregate. Except as otherwise set forth in
Section 4.18 of the Disclosure Schedule, each contract or agreement set forth in
the Disclosure Schedule that has not been fully performed is in full force and
effect and (A) there exists no default or event of default or event, occurrence,
condition or act (including the consummation of the Offer or the Merger) on the
part of the Company or any of its subsidiaries which, with the giving of notice,
the lapse of time or the happening of any other event or condition, would become
a default or event of default thereunder, except for such default or event of
default which would not have a Material Adverse Effect, and (B) no approval or
consent of, or notice to, any person is needed in order that each such contract
or agreement that has not been fully performed shall continue in full force and
effect in accordance with its terms without penalty, acceleration or rights of
early termination by reason of the consummation of the transactions contemplated
by this Agreement.
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SECTION 4.19 State Takeover Statutes.
The Board of Directors of the Company has approved the Offer and this
Agreement within the meaning of Sections 2538(b)(1) and 2555(1) of the BCL and
Section 2538 (a) (presuming that the representation of Parent and Purchaser set
forth in Section 3.8 is true and correct) of the BCL is inapplicable to the
Offer and this Agreement and the other transactions contemplated by this
Agreement.
SECTION 4.20 Disclosure.
The information contained in the Disclosure Schedule as it relates to
the representations and warranties made by the Company in this Agreement does
not contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made, in light of the
circumstances under which they were made, not misleading.
SECTION 4.21 Fairness Opinion of Financial Advisor.
The Company has received the opinion of Xxxxxx & Co. Inc. to the effect
that, as of the date of this Agreement, the consideration to be received in the
Offer and the Merger by the Company's shareholders is fair to the Company's
shareholders from a financial point of view, and a complete and correct signed
copy of such opinion has been, or will be, delivered to Parent.
SECTION 4.22 Acknowledgement of Assignment of Rights.
The Company hereby consents, agrees and acknowledges that (a) as a
condition to obtaining the debt financing contemplated by Section 3.5, Parent
and Purchaser have agreed to pledge and assign to Lender, and to grant a
security interest to Lender in and to, their respective rights and privileges
under this Agreement and the Asset Sale Escrow Agreement and (b) the Company
will execute and deliver to Purchaser such acknowledgements or other consents
with respect to such pledge and assignment as Lender may reasonably request.
ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER
SECTION 5.1 Conduct of Business by the Company Pending the Merger.
Except as otherwise contemplated by this Agreement or described in
Section 5.1 of the Disclosure Schedule, after the date hereof and prior to the
Closing Date or earlier termination of this Agreement, unless Parent shall
otherwise agree in writing, the Company shall, and shall cause its subsidiaries,
to:
(a) conduct its business in the ordinary and usual course of business
and consistent with past practice, except as contemplated by this Agreement or
the Purchase and Sale Agreement;
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(b) not (i) amend or propose to amend its charter or by-laws, (ii)
split, combine or reclassify its outstanding capital stock or (iii) declare, set
aside or pay any dividend or distribution payable in cash, stock, property or
otherwise;
(c) not issue, sell or pledge, or agree to issue, sell or pledge any
additional shares of, or any options, warrants or rights of any kind to acquire
any shares of its capital stock of any class or any debt or equity securities
convertible into or exchangeable for such capital stock;
(d) use all reasonable efforts to preserve intact its business
organizations and goodwill, keep available the services of its officers and key
employees, and preserve the goodwill and business relationships with customers
and others having business relationships with the Company and not engage in any
action, directly or indirectly, with the intent to adversely impact the
transactions contemplated by this Agreement;
(e) confer on a regular and frequent basis with one or more designated
representatives of Parent to report operational matters of materiality and the
general status of ongoing operations;
(f) not enter into or amend any employment, severance, special pay
arrangement with respect to termination of employment or other similar
arrangements or agreements with any directors, officers or key employees, except
in the ordinary course and consistent with past practice;
(g) not adopt, enter into or amend any bonus, profit sharing,
compensation, stock option, pension, retirement, deferred compensation, health
care, employment or other employee benefit plan, agreement, trust, fund or
arrangement for the benefit or welfare of any employee or retiree, except as
required to comply with changes in applicable law;
(h) not sell or pledge or agree to sell or pledge any stock owned by it
in any of its subsidiaries or any other entity in which it has an equity
interest;
(i) not enter into any contract or commitment with respect to any
capital expenditure in an amount in excess of $50,000;
(j) not acquire (by merger, consolidation, or acquisition of stock or
assets or otherwise) any corporation, partnership or other business or division
thereof (or any interest therein); provided, that any subsidiary of the Company
may be merged with and into the Company or any other subsidiary of the Company;
(k) not cancel, amend or modify, in any material respect, any contract
disclosed in the Disclosure Schedule or enter into any contract that, if in
effect on the date hereof, would be required to be set forth in the Disclosure
Schedule;
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(l) not amend or modify the Purchase and Sale Agreement or the Asset
Sale Escrow Agreement;
(m) except in the ordinary course of business, not acquire any assets
or securities;
(n) except in the ordinary course of business or as permitted by the
Purchase and Sale Agreement, not transfer, lease, license, guarantee, sell,
mortgage, pledge, dispose of, encumber or subject to any lien, any material
assets or incur or modify any indebtedness for borrowed money (other than for
borrowings under existing lines of credit and indebtedness for working capital
in the ordinary course of business);
(o) not make any tax election or settle or compromise any tax
liability;
(p) except as required by applicable law or generally accepted
accounting principles, not make any change in its method of accounting;
(q) not adopt a plan of complete or partial liquidation, dissolution,
merger, consolidation, restructuring, recapitalization or other reorganization
of the Company or any of its subsidiaries (other than in connection with (A) the
Merger or (B) any merger of a subsidiary of the Company with and into the
Company or any other subsidiary of the Company);
(r) not make any loans, advances or capital contributions to, or
investment in, any other Person, other than to any direct or indirect subsidiary
of the Company;
(s) not split, combine or reclassify any of its capital stock or issue
or authorize the issuance of any other securities in respect of, in lieu of or
in substitution for shares of its capital stock;
(t) not enter into any agreement providing for the acceleration of
payment or performance or other consequence as a result of the transactions
contemplated hereby or any other change of control of the Company;
(u) not purchase, redeem or otherwise acquire any shares of capital
stock of the Company or any subsidiary or any rights, warrants or options to
acquire any such shares or other securities;
(v) not take any action, engage in any transaction or enter into any
agreement which would cause any of the representations or warranties set forth
Article IV of this Agreement to be untrue as of the Effective Date; and
(w) not agree, in writing or otherwise, to take any of the foregoing
actions.
SECTION 5.2 Control of the Company's Operations.
Nothing contained in this Agreement shall give to Parent, directly or
indirectly, rights to control or direct the Company's operations prior to the
Effective Time. Prior to the Effective
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Time, the Company shall exercise, consistent with the terms and conditions of
this Agreement, complete control and supervision of its operations.
SECTION 5.3 Acquisition Transactions.
(a) After the date hereof and prior to the Effective Time or earlier
termination of this Agreement, the Company shall not, and shall not permit any
of its subsidiaries to, initiate, solicit, negotiate, encourage or provide
confidential information to facilitate, and the Company shall, and shall cause
its subsidiaries to, (i) cause any officer, director or employee of, or any
attorney, accountant or other agent retained by it and (ii) use its reasonable
best efforts to cause any financial advisor or investment banker retained by it,
not to initiate, solicit, negotiate, encourage or provide non-public or
confidential information to facilitate, any proposal or offer to acquire all or
any substantial part of the business and properties of the Company or any
capital stock of the Company, whether by merger, purchase of, tender offer or
otherwise, whether for cash, securities or any other consideration or
combination thereof, other than with respect to the sale of its Bridge Division
pursuant to the terms and conditions of the Purchase and Sale Agreement (any
such transactions being referred to herein as "Acquisition Transactions").
(b) Notwithstanding the provisions of paragraph (a) above, the Company
may, in response to an unsolicited written proposal with respect to an
Acquisition Transaction furnish (subject to a confidentiality agreement
reasonably acceptable to the Company) confidential or non-public information
concerning its business, properties or assets to a financially capable
corporation, partnership, person or other entity or group (a "Potential
Acquirer") or negotiate with such Potential Acquirer if (i) it has in connection
therewith complied with subsection (c) of this Section, and (ii) based upon
advice of outside legal counsel to the Board or any special committee of the
Board formed to review and evaluate the transactions contemplated by this
Agreement, the Board and/or special committee determines in good faith that
there is a risk that the failure to provide such confidential or non-public
information to such Potential Acquirer would constitute a breach of its
fiduciary duty to its shareholders.
(c) In the event the Company shall determine to provide any information
or negotiate as described in paragraph (b) above, or shall receive any offer of
the type referred to in paragraph (b) above, it shall promptly (and in any
event, at least prior to providing information or commencing negotiations)
inform Parent that information is to be provided, that negotiations are to take
place or that an offer has been received and shall furnish to Parent the
identity of the person receiving such information or the proponent of such
offer, if applicable, and, if an offer has been received, a description of the
material terms thereof.
(d) The Company may enter into a definitive agreement for an
Acquisition Transaction which meets the requirements set forth above with a
Potential Acquirer with which it is permitted to negotiate pursuant to paragraph
(b) above, but only if (i) the Board shall have duly determined that such
Acquisition Transaction would yield a higher per share value to the Company's
shareholders than the Per Share Amount and that the execution of such definitive
agreement is in the best interests of the Company's shareholders, (ii) at least
five (5) business days prior to the execution of such definitive agreement, the
Company shall have furnished the Parent with a copy of such definitive
agreement, and (iii) the Parent shall have failed within such
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five (5) business day period to offer to amend the terms of this Agreement in
order that the Merger would yield a value to the Company's shareholders at least
equal in the good faith judgment of the Board to the Acquisition Transaction. In
the event the Company enters into a definitive agreement for an Acquisition
Transaction, the Board may change its recommendation as contemplated in Section
1.2 hereof.
(e) The Company (i) acknowledges that a breach of any of its covenants
contained in this Section 5.3 will result in irreparable harm to the other party
which will not be compensable in money damage and (ii) agrees that such covenant
shall be specifically enforceable and that specific performance and injunctive
relief shall be a remedy properly available to the Parent for a breach of such
covenant.
ARTICLE VI
ADDITIONAL AGREEMENTS
SECTION 6.1 Access to Information.
(a) The Company and its subsidiaries shall afford to Parent and
Purchaser and, on a need to know basis, their respective accountants, counsel,
financial advisors and other representatives (the "Parent Representatives") full
access during normal business hours throughout the period prior to the Effective
Time to all of their respective properties, books, contracts, commitments and
records (including, but not limited to, tax returns) and, during such period,
shall furnish promptly to the Parent or Parent Representatives (i) a copy of
each report, schedule and other document filed by any of them with the SEC in
connection with the transactions contemplated by this Agreement or which may
have a material effect on their respective businesses, properties or personnel
and (ii) such other information concerning the Company's business as Parent or
Purchaser shall reasonably request including, without limitation, access to
customers of the Company; provided that no investigation pursuant to this
Section 6.1 shall amend or modify any representations or warranties made herein
or the conditions to the obligations of the respective parties to consummate the
Merger. Parent and its subsidiaries shall hold and shall use their reasonable
best efforts to cause the Parent Representatives to hold in strict confidence
all non-public documents and information furnished to Parent and Purchaser in
connection with the transactions contemplated by this Agreement, except that (i)
Parent and Purchaser may disclose such information as may be necessary in
connection with seeking the Parent Required Statutory Approvals and (ii) each of
Parent and Purchaser may disclose any information that it is required by law or
judicial or administrative order to disclose.
(b) The Parent and Purchaser shall afford to the Company and its
subsidiaries and, on a need to know basis, their respective accountants,
counsel, financial advisors and other representatives (the "Company
Representatives") full access during normal business hours throughout the period
prior to the Effective Time to all of their respective properties, books,
contracts, commitments and records (including, but not limited to, tax returns)
and, during such period, shall furnish promptly to the Company and its
subsidiaries or the Company Representatives (i) a copy of each report, schedule
and other document filed by any of them with
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the SEC in connection with the transactions contemplated by this Agreement or
which may have a material effect on their respective businesses, properties or
personnel and (ii) such other information concerning the Parent's and/or
Purchaser's business as the Company or its subsidiaries shall reasonably
request; provided that no investigation pursuant to this Section 6.1 shall amend
or modify any representations or warranties made herein or the conditions to the
obligations of the respective parties to consummate the Merger. The Company and
its subsidiaries shall hold and shall use their reasonable best efforts to cause
the Company Representatives to hold in strict confidence all non-public
documents and information furnished to the Company and its subsidiaries in
connection with the transactions contemplated by this Agreement, except that (i)
the Company and its subsidiaries may disclose such information as may be
necessary in connection with seeking the Company Required Statutory Approval and
(ii) the Company may disclose any information that it is required by law or
judicial or administrative order to disclose.
(c) In the event that this Agreement is terminated in accordance with
its terms, each party shall promptly redeliver to the other all non-public
written material provided by the other pursuant to this Section 6.1 and shall
not retain any copies, extracts or other reproductions in whole or in part of
such written material. In such event, all documents, memoranda, notes and other
writings prepared by Parent or Parent Representatives or the Company or Company
Representatives based on the information in such material shall be destroyed
(and Parent and Parent Representatives and Company and Company Representatives
shall use their best efforts to cause their advisors and representatives to
similarly destroy their documents, memoranda and notes), and such destruction
(and best efforts) shall be certified in writing by an authorized officer
supervising such destruction.
SECTION 6.2 Expenses and Fees.
(a) Except as provided in Section 6.2(b), all costs and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses.
(b) The Company agrees to pay to Parent a fee equal to One Million Five
Hundred Thousand Dollars ($1,500,000.00):
(i) if the Company terminates this Agreement pursuant to
clause (iv) or (v) of Section 8.1(a);
(ii) if Parent terminates this Agreement pursuant to clause
(iv), clause (v), or clause (vii) of Section 8.1(b);
(iii) if Parent terminates this Agreement pursuant to clause
(vi) of Section 8.1(b) and, within six months after the date of this
Agreement, the Company consummates, or signs an agreement contemplating
the consummation of, a transaction for the sale of all of the Shares;
or
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(iv) if Parent terminates this Agreement pursuant to clause
(ii) of Section 8.1(b) as a result of the existence of the condition
described in clause (d) of the conditions to the Offer set forth in
Exhibit A attached hereto.
---------
(c) The Parent agrees to pay the Company a fee equal to One Million
Five Hundred Thousand Dollars ($1,500,000.00) if Parent terminates or is unable
to consummate the Offer because the debt financing source contemplated by
Section 3.5 of this Agreement shall not have provided to the Parent and to the
Purchaser the applicable debt financing in an amount sufficient to pay the
aggregate Per Share Amount for all outstanding Shares.
SECTION 6.3 Agreement to Cooperate.
(a) Subject to the terms and conditions herein provided, each of the
parties hereto shall use all reasonable efforts to take, or cause to be taken,
all action and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations to consummate and make effective
the transactions contemplated by this Agreement, including using its reasonable
efforts to obtain all necessary or appropriate waivers, consents and approvals
to effect all necessary filings and submissions, and including, if appropriate,
agreeing to amend any specific provisions of this Agreement if the parties agree
that such amendment would be beneficial to the parties and not adversely affect
the economic terms hereof.
(b) Without limitation of the foregoing, each of Parent and the Company
agrees that if a Notification and Report Form is required to be filed under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
with the Federal Trade Commission (the "FTC") and the Antitrust Division of the
Department of Justice (the "Antitrust Division") then each of Parent and the
Company shall (i) file such Notification and Report Form with the FTC and the
Antitrust Division, (ii) use its best efforts to comply as expeditiously as
possible with all lawful requests of the FTC or the Antitrust Division for
additional information and documents and (iii) not extend any waiting period
under the HSR Act or enter into any agreement with the FTC or the Antitrust
Division not to consummate the transactions contemplated by this Agreement,
except with the prior consent of the other parties hereto. The Company
undertakes and agrees to file as soon as practicable after the date hereof a
Notification and Report Form under the HSR Act with the FTC and the Antitrust
Division with respect to the transactions contemplated by the Purchase and Sale
Agreement and shall cause the Asset Buyer to covenant in the Purchase and Sale
Agreement that such purchaser will file as soon as practicable after the date
hereof a Notification and Report Form under the HSR Act with the FTC and the
Antitrust Division with respect to the transactions contemplated by the Purchase
and Sale Agreement.
SECTION 6.4 Public Statements.
The parties shall use reasonable efforts to consult with each other
prior to issuing any press release or any written public statement with respect
to this Agreement or the transactions contemplated hereby and shall not issue
any such press release or written public statement prior to such reasonable
efforts; provided, that a party may, without the prior consent of any other
party, issue a press release or make such public statement as may be required by
law or any rule
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of or agreement with any national securities exchange or automated quotation
system to which Parent or the Company is subject.
SECTION 6.5 Notification of Certain Matters.
Each of the Company, Parent and Purchaser agree to give prompt notice
to each other of, and to use their respective reasonable best efforts to prevent
or promptly remedy, (a) the occurrence or failure to occur or the impending or
threatened occurrence or failure to occur, of any event which occurrence or
failure to occur would be likely to cause any of its representations or
warranties in this Agreement to be untrue or inaccurate in any material respect
at the date hereof or the Effective Time and (b) any material failure on its
part to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; provided, however, that the delivery
of any notice pursuant to this Section 6.5 shall not limit or otherwise affect
the remedies available hereunder to the party receiving such notice.
SECTION 6.6 Directors' and Officers' Indemnification and Insurance.
(a) After the Effective Time, Parent and the Surviving Corporation
shall, to the fullest extent permitted under applicable law, jointly and
severally indemnify and hold harmless, each present and former director,
officer, employee and agent of the Company or any of its subsidiaries (each,
together with such person's heirs, executors or administrators, an "Indemnified
Party" and collectively, the "Indemnified Parties" against any costs or expenses
(including attorneys fees), judgments, fines, losses, claims, damages,
liabilities and amounts paid in settlement in connection with any claim, action,
suit, proceeding or investigation, whether civil, criminal, administrative or
investigative, arising out of, relating to or in connection with any action or
omission occurring prior to the Effective Time (including, without limitation,
acts or omissions in connection with such persons serving as an officer,
director or other fiduciary in any entity if such service was at the request or
for the benefit of the Company) or arising out of or pertaining to the
transactions contemplated by this Agreement. In furtherance of the foregoing
agreement, the Surviving Corporation hereby affirms its obligations as the
surviving corporation of the Merger after the Effective Time under the
Indemnification Agreements between the Company and its officers and directors
which are identified in Schedule 6.6 of the Disclosure Schedule, true, correct
and complete copies of which have been made available to the Parent or its
counsel. In the event of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) Parent
and the Surviving Corporation shall pay the reasonable fees and expenses of
counsel selected by the Indemnified Parties; which counsel shall be reasonably
satisfactory to Parent and the Surviving Corporation, promptly after statements
therefor are received, (ii) Parent and the Surviving Corporation will cooperate
in the defense of any such matter, and (iii) any determination required to be
made with respect to whether an Indemnified Party's conduct complies with the
standards set forth under the BCL shall be made by outside legal counsel
acceptable to the Parent, the Surviving Corporation and the Indemnified Party;
provided, however, that neither Parent nor the Surviving Corporation shall be
liable for any settlement effected without its written consent (which consent
shall not be unreasonably withheld).
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(b) Prior to the Effective Time, the Company shall purchase, and pay in
advance, all premiums therefor, a policy of directors and officers liability
insurance in an amount which is not less than the coverage presently maintained
by the Company and covering each individual who served as an officer or director
of the Company prior to the Effective Time which policy shall cover any claims
that may be brought within a period of not less than six (6) years following the
Effective Time.
(c) In the event the Surviving Corporation or Parent or any of their
successors or assigns (i) consolidates with or merges into any other person and
shall not be the continuing or surviving corporation or entity of such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any person, then and in each such case, proper
provisions shall be made so that the successors and assigns of the Surviving
Corporation or Parent shall assume the obligations set forth in this Section
6.6.
(d) It is understood and agreed that the Indemnified Parties shall be
third party beneficiaries of this Section 6.6.
SECTION 6.7 Financing.
Parent and Purchaser shall use their best efforts to obtain the debt
financing contemplated by Section 3.5. In connection therewith, neither Parent
nor Purchaser shall engage in any conduct or actions intended to forestall or
impede the financing. Neither Parent nor Purchaser shall amend, modify or
supplement the terms or conditions of the Credit Agreement, or cancel or waive
any rights under the Credit Agreement in any manner that would result in Parent
or Purchaser not obtaining sufficient funds to consummate the transactions
contemplated hereby.
SECTION 6.8 Going Concern.
The Surviving Corporation will, and Parent will cause the Surviving
Corporation to, (i) maintain its existence as a validly existing corporation
under the laws of the Commonwealth of Pennsylvania for not less than three years
after the Effective Date and (ii) continue to manage any assets of the Surviving
Corporation, including real estate assets of the Company.
SECTION 6.9 Employment Agreements.
Immediately following the consummation of the Merger, the Company shall
pay any and all amounts, to the extent then due and payable (including as a
result of the consummation of the Merger), under the employment agreements
between the Company and its employees (including, without limitation, the senior
officers) subject to no conditions other than the prior or concurrent delivery
by each such employee of a written statement to the Company terminating his or
her employment agreement with the Company effective upon consummation of the
Merger. It is understood and agreed that the employees (including, without
limitation, the senior officers) party to the employment agreements with the
Company shall be third party beneficiaries of this Section 6.9.
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SECTION 6.10 State Takeover Statutes.
If any "fair price", "control share acquisition", "moratorium",
"interested shareholder" or other anti-takeover statute, or similar statute or
regulation, shall become applicable to this Agreement or any of the transactions
contemplated hereby (including, without limitation, the Offer), the Company and
its Board of Directors shall (subject always to applicable law and the fiduciary
duties of the Board of Directors) take all action necessary to ensure that the
Offer and the other transactions contemplated hereby and thereby may be
consummated as promptly as practicable on the terms contemplated hereby and
otherwise to minimize the effect of such statute or regulation on the Offer and
the other transactions contemplated hereby and thereby.
SECTION 6.11 Closing Escrow.
(a) On the date which is one Business Day prior to the Closing Date
(the "Escrow Closing Date"), the Company shall deliver to Parent a certificate
of the Chief Financial Officer of the Company in the form attached hereto as
Exhibit D (the "Closing Certificate"), which shall certify that as of such date,
---------
the Company possesses unrestricted cash in an amount of at least One Hundred
Thirty-Two Million Dollars ($132,000,000.00) (the "Minimum Cash Amount"). On the
Escrow Closing Date, the Company shall transfer cash in an amount equal to the
Minimum Cash Amount to a Company account established for that purpose at a
financial institution designated by Parent.
(b) The Escrow Closing Date under this Agreement shall be the same date
as the Escrow Closing Date under the Purchase and Sale Agreement. The Company
shall not deliver the Escrow Closing Date Notification Certificate (as defined
in the Purchase and Sale Agreement) pursuant to Section 4.2 of the Purchase and
Sale Agreement without the prior written consent of Purchaser, and shall provide
Purchaser with a copy of such certificate simultaneously with the delivery of
such certificate under the Purchase and Sale Agreement.
SECTION 6.12 Pre-clearance of Articles of Merger.
Purchaser shall, as soon as reasonably practicable and in any event not
later than five business days prior to the initial expiration date of the Offer,
submit to the Department of State of the Commonwealth of Pennsylvania draft
Articles of Merger for the purpose of pre-clearing such Articles of Merger for
filing with the Department of State of the Commonwealth of Pennsylvania and
shall use its reasonable best efforts to respond as promptly as practicable to
all inquiries or comments of the Department of State of the Commonwealth of
Pennsylvania with respect thereto and shall make all such changes to the
Articles of Merger as shall be necessary to effect the Merger Filing pursuant to
Section 2.2 hereof.
SECTION 6.13 Tax Returns.
Parent shall cause the Surviving Corporation to prepare and file all
required income tax returns and pay all income taxes due for the years 2001 and
2002.
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SECTION 6.14 Purchase and Sale Agreement.
Parent shall cause the Surviving Corporation to satisfy all of the
conditions necessary to consummate the transactions contemplated by the Purchase
and Sale Agreement including, but not limited to, obtaining any required
approval from the shareholders of the Surviving Corporation.
SECTION 6.15 Approval and Adoption of Plan of Merger.
The Company will approve the Plan of Merger pursuant to and within the
meaning of Section 2539(1). As soon as practicable after Purchaser's acceptance
for payment for not less than 80% of all then outstanding Shares in accordance
with the Offer, the Purchaser will adopt the Plan of Merger pursuant to and
within the meaning of Section 1924(a) and will cause the Company to be deemed to
have adopted the Plan of Merger pursuant to and within the meaning of Section
1924(b)(3) of the BCL.
ARTICLE VII
CONDITIONS
SECTION 7.1 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligations of each party to effect the Merger shall be
subject to the fulfillment at or prior to the Closing Date of the following
conditions:
(a) the waiting periods under the HSR Act applicable to the
consummation of the Merger and/or, to the extent applicable, to the consummation
of the transactions contemplated by the Purchase and Sale Agreement shall have
expired without a request for further information by the relevant federal
authorities under such Act, or in the event of such a request for further
information, the expiration of all applicable time limitations under the Act
shall have occurred without the objection of such federal authorities;
(b) no preliminary or permanent injunction or other order or decree by
any federal or state court which prevents the consummation of the Merger shall
have been issued and remain in effect (each party agreeing to use its reasonable
efforts to have any such injunction, order or decree lifted);
(c) no action shall have been taken, and no statute, rule or regulation
shall have been enacted, by any state or federal government or governmental
agency in the United States which would prevent the consummation of the Merger
or make the consummation of the Merger illegal; and
(d) all material governmental waivers, consents, orders and approvals
required for the consummation of the Merger and the transactions contemplated
hereby, and all material consents from lenders or other third parties required
to consummate the Merger, shall have been obtained and be in effect at the
Effective Time.
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SECTION 7.2 Conditions to Obligation of the Company to Effect the
Merger.
Unless waived by the Company, the obligation of the Company to effect
the Merger shall be subject to the fulfillment at or prior to the Closing Date
of the following additional conditions:
(a) Parent and Purchaser shall have performed in all material respects
their agreements contained in this Agreement required to be performed on or
prior to the Closing Date and the representations and warranties of Parent and
Purchaser contained in this Agreement shall be true and correct in all material
respects on and as of the date made and on and as of the Closing Date as if made
at and as of such date, and the Company shall have received a certificate of an
officer of Parent and of Purchaser to that effect.
(b) The Company shall have received a legal opinion of counsel to
Parent substantially in the form attached hereto as Exhibit E.
---------
SECTION 7.3 Conditions to Obligations of Parent and Purchaser to Effect
the Merger.
Unless waived by Parent and Purchaser, the obligations of Parent and
Purchaser to effect the Merger shall be subject to the fulfillment at or prior
to the Effective Time of the additional following condition:
(a) The Company shall have performed in all material respects its
agreements contained in this Agreement required to be performed on or prior to
the Closing Date and the representations and warranties of the Company contained
in this Agreement shall be true and correct in all material respects on and as
of the date made and on and as of the Closing Date as if made at and as of such
date, and Parent shall have received a Certificate from an officer of the
Company to that effect.
(b) Parent shall have received a legal opinion of counsel to the
Company substantially in the form attached hereto as Exhibit F.
---------
ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER
SECTION 8.1 Termination.
This Agreement may be terminated at any time prior to the Closing Date
by mutual consent or as follows:
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(a) The Company shall have the right to terminate this Agreement:
(i) if the Company's Board of Directors:
(A) reasonably determines that the
representations and warranties of Parent and
Purchaser contained in this Agreement are
not true and correct in any material respect
on and as of the date made and on and as of
the date of the Board's determination;
(B) reasonably determines that the condition set
forth in Section 7.1(d) above cannot be
satisfied in all material respects on or
prior to the Closing Date;
(ii) if the Merger is not completed by March 29, 2002
otherwise than on account of delay or default on the part of the
Company or any of its affiliates or associates;
(iii) if the Merger is enjoined by a final, unappealable court
order not entered at the request or with the support of the Company or
any of its affiliates or associates;
(iv) if (A) the Company receives an offer from any third party
(excluding any affiliate of the Company or any group of which any
affiliate of the Company is a member) with respect to a merger, sale of
substantial assets or other business combination involving the Company,
(B) the Company's Board of Directors determines, in good faith and
after consultation with an independent financial advisor, that such
offer would yield a higher value to the Company or its shareholders
than the Merger and (C) Parent or Purchaser fails, within five (5)
business days after Parent is notified of such determination and of the
terms and conditions of such offer, to make an offer which is
substantially equivalent to, or more favorable than, such offer;
(v) if (A) a tender/exchange offer is commenced by a third
party (excluding any affiliate of the Company or any group of which any
affiliate of the Company is a member) for all outstanding shares of
Company Common Stock, (B) the Company's Board of Directors determines,
in good faith and after consultation with an independent financial
advisor, that such offer would yield a higher value to the Company or
its shareholders than the Merger and (C) Parent or Purchaser fails,
within five (5) business days after Parent is notified of such
determination, to make an offer which is substantially equivalent to,
or more favorable than, such tender/exchange offer; or
(vi) if Parent (A) fails to perform in any material respect
any of its material covenants in this Agreement and (B) does not cure
such default in all material respects within thirty (30) days after
notice of such default is given to Parent by the Company.
(b) Parent shall have the right to terminate this Agreement:
(i) if Parent:
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(A) reasonably determines that the
representations and warranties of Company
contained in this Agreement are not true and
correct in any material respect on and as of
the date made and on and as of the date of
such determination; or
(B) reasonably determines that the conditions
set forth in Section 7.l(d) above cannot be
satisfied in all material respects on or
prior to the Closing Date,
(ii) if the Merger is not completed by March 29, 2002
otherwise than on account of delay or default on the part of the Parent
or any of its affiliates or associates;
(iii) if the Merger is enjoined by a final, unappealable court
order not entered at the request or with the support of the Parent or
any of its affiliates or associates;
(iv) if the Company (A) fails to perform in any material
respect any of its covenants in this Agreement and (B) does not cure
such default in all material respects within ten (10) days after notice
of such default is given to the Company by Parent;
(v) if, prior to the Purchaser having accepted Shares for
payment pursuant to the Offer, the Purchase and Sale Agreement or the
Asset Sale Escrow Agreement shall have been terminated;
(vi) if, after the date of this Agreement and prior to the
Purchaser having accepted Shares for payment pursuant to the Offer, any
Person (other than Parent or Purchaser) shall have acquired beneficial
ownership (as defined in Rule 13d-3 promulgated under the Exchange Act)
of more than 20% of the outstanding voting securities of the Company,
and such person fails to tender such shares such that the Minimum
Condition cannot be obtained by such failure to tender, or is granted
an option or right to acquire more than 20% of such voting securities
of the Company; or
(vii) if the Company shall have received an offer with respect
to any Acquisition Transaction, and (A) the Board of Directors of the
Company shall have withdrawn or modified (including by amendment of the
Schedule 14D-9) in a manner adverse to Parent or Purchaser its approval
or recommendation of the Offer, (B) the Company or its Board of
Directors shall have approved, recommended or entered into an agreement
with respect to, or consummated the transactions contemplated by any
such Acquisition Transaction or (C) the Board of Directors of the
Company shall have resolved to do any of the foregoing.
(c) As used in this Section 8.1, (i) "affiliate" has the meaning set
forth in Rule 144 promulgated by the SEC pursuant to the Securities Act (ii)
"associate" has the meaning set forth in Rule 12b-2 promulgated by the SEC
pursuant to the Exchange Act and (iii) "group" has the meaning set forth in
Section 13(d) of the Exchange Act and the rules and regulations thereunder.
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SECTION 8.2 Effect of Termination.
In the event of termination of this Agreement by either Parent or the
Company, as provided in Section 8.1, (a) this Agreement shall forthwith become
void and there shall be no further obligation on the part of the Company,
Parent, Purchaser or their respective officers or directors (except as set forth
in this Section 8.2 and in Sections 6.1(c), 6.2, and 6.4 all of which shall
survive the termination) and (b) each party's sole remedy shall be to receive
the amounts provided for in Section 6.2 of this Agreement as agreed and
liquidated damages, it being agreed that in such event each party's actual
damages would be incapable of precise ascertainment and that the amounts set
forth in Section 6.2 of this Agreement are reasonable estimates of such damages
and none of Parent, Purchaser, the Company or any of their respective
subsidiaries shall have any further liability to any other party hereto. Nothing
in this Section 8.2 shall relieve any party from liability for any breach of
this Agreement.
SECTION 8.3 Amendment.
This Agreement may not be amended except by action taken by the
respective Boards of Directors of each of the parties hereto or duly authorized
committee thereof and then only by an instrument in writing signed on behalf of
each of the parties hereto and in compliance with applicable law.
SECTION 8.4 Waiver.
At any time prior to the Effective Time, the parties hereto may (a)
extend the time for the performance of any of the obligations or other acts of
the other parties hereto, (b) waive any inaccuracies in the representations and
warranties contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid if set forth in an instrument in writing signed on behalf of such party.
ARTICLE IX
GENERAL PROVISIONS
SECTION 9.1 Non-Survival of Representations and Warranties.
All representations and warranties in this Agreement shall not survive
the Merger, and after the Effective Time of the Merger neither the Company,
Parent, Purchaser or their respective officers or directors shall have any
further obligation with respect thereto. Notwithstanding the immediately
preceding sentence, the Surviving Corporation's obligations set forth in Section
6.6 shall continue in full force and effect following the Effective Time.
SECTION 9.2 Brokers.
The Company represents and warrants that no broker, finder or
investment banker other than Xxxxxx & Co., Inc. is entitled to any brokerage,
finder's or other fee or commission in
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connection with the Merger or the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of the Company. Parent and
Purchaser jointly and severally represent and warrant that no broker, finder or
investment banker is entitled to any brokerage, finder's or other fee or
commission in connection with the Merger or the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of Parent or
Purchaser.
SECTION 9.3 Notices.
All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, mailed by registered or certified
mail (return receipt requested) or sent via overnight courier or facsimile to
the parties at the following addresses (or at such other address for a party as
shall be specified by like notice):
(a) If to Parent or Purchaser to:
Ironbridge Acquisition Corp.
Ironbridge Holding LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxx
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
Xxxxx Raysman Xxxxxxxxx Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
(b) If to the Company, to:
Pitt-Des Moines, Inc.
Town Xxxxxx Xxx, Xxxxx 000
0000 Xxxx Xxxxxxx Xxxxx
The Woodlands, Texas 77380
Attention: President
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
with a copy to:
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Xxxxxxxx Ingersoll Professional Corporation
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Esq.
Telephone No.: (000) 000-0000
Fax No.: (000) 000-0000
SECTION 9.4 Interpretation.
The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. In this Agreement, unless a contrary intention appears, (a) the words
"herein", "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision and (b) reference to any Article or Section means such Article or
Section hereof. No provision of this Agreement shall be interpreted or construed
against any party hereto solely because such party or its legal representative
drafted such provision.
SECTION 9.5 Miscellaneous.
This Agreement (including the documents and instruments referred to
herein) constitutes the entire agreement and supersedes all other prior
agreements and understandings, both written and oral, among the parties, or any
of them, with respect to the subject matter hereof.
SECTION 9.6 Governing Law/Jurisdiction and Venue.
(a) THIS AGREEMENT SHALL BE GOVERNED IN ALL RESPECTS, INCLUDING
VALIDITY, INTERPRETATION AND EFFECT, BY THE LAWS OF THE COMMONWEALTH OF
PENNSYLVANIA APPLICABLE TO CONTRACTS AND TO BE EXECUTED AND TO BE PERFORMED
WHOLLY WITHIN SUCH COMMONWEALTH.
(b) EACH PARTY CONSENTS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR
FEDERAL COURT LOCATED IN ALLEGHENY COUNTY, PENNSYLVANIA. EACH PARTY CONSENTS AND
AGREES THAT VENUE OF ANY ACTION INSTITUTED UNDER THIS AGREEMENT SHALL BE PROPER
ONLY IN THE COMMONWEALTH OF PENNSYLVANIA AND WAIVES ANY OBJECTION TO SUCH VENUE.
SECTION 9.7 Counterparts.
This Agreement may be executed in two or more counterparts, each of
which shall be deemed to be an original, but all of which shall constitute one
and the same agreement.
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SECTION 9.8 Parties in Interest.
This Agreement shall be binding upon and inure solely to the benefit of
each party hereto, and except for the rights of indemnified Parties under
Section 8.6, nothing in this Agreement, express or implied, is intended to
confer upon any other person any rights or remedies of any nature whatsoever
under or by reason of this Agreement.
-37-
IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this
Agreement to be signed by their respective officers as of the date first written
above.
IRONBRIDGE ACQUISITION CORP.
By:
-----------------------------------------------
Xxxxx Xxxxx, President
IRONBRIDGE HOLDING LLC
By: Ironbridge Holding Corp., its Manager
By:
-----------------------------------------------
Xxxxx Xxxxx, President
PITT-DES MOINES, INC.
By:
-----------------------------------------------
X.X. XxXxx,
President and Chief Executive Officer
EXHIBIT A
CONDITIONS TO THE OFFER
Notwithstanding any other provision of the Offer, Purchaser shall not
be required to accept for payment or pay for any Shares tendered pursuant to the
Offer, and may terminate or amend the Offer and may postpone the acceptance for
payment of and payment for Shares tendered, if (i) the Minimum Condition shall
not have been satisfied, (ii) any applicable waiting period to the consummation
of the transactions contemplated by the Purchase and Sale Agreement shall not
have expired or been terminated prior to the expiration of the Offer, (iii)
Parent shall not have received a legal opinion of counsel to the Company
substantially in the form attached hereto as Exhibit F, or (iv) at any time on
or after the date of this Agreement, and prior to the acceptance for payment of
Shares, any of the following conditions shall exist:
(a) there shall have been issued any injunction, order or decree by any
court or governmental, administrative or regulatory authority or agency,
domestic or foreign, resulting from any action or proceeding brought by any
person other than any governmental, administrative or regulatory authority or
agency, domestic or foreign, which (i) makes illegal, impedes, delays or
otherwise directly or indirectly restrains or prohibits the making of the Offer
or the consummation of any other Transaction or seeks to obtain material
damages; (ii) prohibits or limits ownership or operation by the Company, Parent
or Purchaser of all or any material portion of the business or assets of the
Company, Parent or any of their subsidiaries, in each case as a result of the
Transactions, or seeks to impose any material limitation on the ability of
Parent or Purchaser to conduct its business, own such assets, or consummate the
transactions contemplated by the Purchase and Sale Agreement, or the Asset Sale
Escrow Agreement; (iii) imposes limitations on the ability of Parent or
Purchaser to exercise effectively full rights of ownership of any Shares,
including, without limitation, the right to vote any Shares acquired by
Purchaser or Parent pursuant to the Offer or otherwise on all matters properly
presented to the Company's shareholders, including, without limitation, the
approval and adoption of this Agreement and the Transactions, except as
specifically provided in Subchapter 25(G) of the BCL provided that such
Subchapter 25(G) does not prohibit the consummation of the Merger without the
approval of the Company's Shareholders pursuant to Section 1924(b)(1)(ii) of the
BCL; (iv) requires divestiture by Parent or Purchaser of any Shares, or (v) has
a Material Adverse Effect;
(b) there shall have been any action taken, or any law, statute, rule,
regulation, order or injunction enacted, entered, enforced, promulgated,
amended, issued or deemed applicable to (i) Parent, the Company or any
subsidiary or affiliate of Parent or the Company or (ii) any Transaction, by any
legislative body, court, government or governmental, administrative or
regulatory authority or agency, domestic or foreign, in the case of both (i) and
(ii), other than the routine application of the waiting period provisions of the
HSR Act to the Offer and the Merger, which results in any of the consequences
referred to in clauses (i) through (v) of paragraph (a) above;
(c) any change (other than any change (x) arising in the ordinary
course of business, (y) arising out of changes in general economic, regulatory
or political conditions or (z) arising out of changes which affect the markets
in which the Company operates in general) shall have occurred that would have a
Material Adverse Effect;
(d) the net assets of the Company, determined by Parent using the
methodologies agreed to by the parties as of the date of the Merger Agreement
are less then Two Hundred Fifty-Seven Million Dollars ($257,000,000.00);
(e) any of the representations or warranties made by the Company in the
Merger Agreement shall be untrue or incorrect, in each case as of the date of
the Merger Agreement and the expiration date of the Offer, except (i) for
changes specifically permitted by the Merger Agreement and (ii) that those
representations and warranties which address matters only as of a particular
date shall remain true and correct in all material respects, as of such date;
(f) the Company's Board of Directors shall have withdrawn, modified or
amended in any respect adverse to Parent or Purchaser its recommendation of the
Offer and the Company shall have entered into an agreement providing for or
implementing an Acquisition Transaction, or shall have resolved to do any of the
foregoing;
(g) the Company shall have failed to perform in any material respect
any obligation or to comply in any material respect with any agreement or
covenant of the Company to be performed or complied with by it under this
Agreement, or any party thereto shall have failed to perform in any material
respect any material obligation or to comply in any material respect with any
agreement or covenant of such party to be performed or complied with by it under
the Purchase and Sale Agreement or the Asset Sale Escrow Agreement;
(h) the Company, PDM Bridge Corp. or the Asset Buyer shall have failed
to deliver an irrevocable certificate to the escrow agent under the Asset Sale
Escrow Agreement confirming that all conditions precedent to the closing of the
transactions contemplated by the Purchase and Sale Agreement have been satisfied
or waived or any closing document to be delivered on or prior to the closing of
the transactions contemplated thereby shall not have been irrevocably delivered,
together with the full amount of the purchase price paid in accordance with the
terms of the Purchase and Sale Agreement, to be held in escrow pending the
consummation of the Offer and the Merger;
(i) this Agreement, the Purchase and Sale Agreement or the Asset Sale
Escrow Agreement shall have been terminated in accordance with its terms;
(j) Parent, Purchaser and the Company shall have agreed that Purchaser
shall terminate the Offer or postpone the acceptance for payment of or payment
for Shares thereunder;
(k) (i) any proceeding shall have been instituted by or against the
Company, PDM Bridge Corp., or the Asset Buyer seeking to adjudicate such party a
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief, or composition of such party or its
debts under any law relating to bankruptcy, insolvency or reorganization or
relief of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for such party or
for any substantial part of such party's property, (ii) the Company, PDM Bridge
Corp., or the Asset Buyer shall have failed to pay its debts as such debts
become due or shall have admitted in writing its inability to pay its debts
generally, or (iii) the Company, PDM Bridge Corp., or the Asset Buyer shall have
made a general assignment for the benefit of creditors.
The foregoing conditions are for the sole benefit of Purchaser and
Parent and may be asserted by Purchaser or Parent regardless of the
circumstances giving rise to any such condition or may be waived by Purchaser or
Parent in whole or in part at any time and from time to time in their sole
discretion. The failure by Parent or Purchaser at any time to exercise any of
the foregoing rights shall not be deemed a waiver of any such right; the waiver
of any such right with respect to particular facts and other circumstances shall
not be deemed a waiver with respect to any other facts and circumstances; and
each such right shall be deemed an ongoing right that may be asserted at any
time and from time to time.
EXHIBIT B
PLAN OF MERGER
(See Exhibit (d)(2) to the Schedule TO)
EXHIBIT C
ARTICLES OF MERGER
Microfilm Number Filed with the Department of State on
------------------------ ---------------------------
Entity Number
--------------------------- ------------------------------------------------------------------
Secretary of the Commonwealth
ARTICLES OF MERGER-DOMESTIC BUSINESS CORPORATION
DSCB:15-1926 (Rev 91)
In compliance with the requirements of 15 Pa.C.S. ss. 1926 (relating to articles of merger or consolidation), the
undersigned business corporations, desiring to effect a merger, hereby state that:
1. The name of the corporation surviving the merger is: Pitt-Des Moines, Inc.
---------------------------------------------------------------------
---------------------------------------------------------------------------------------------------------------------------
2. (Check and complete one of the following):
X The surviving corporation is a domestic business corporation and the (a) address of its current registered office in
----- this Commonwealth or (b) name of its commercial registered office provider and the county of venue is (the
Department is hereby authorized to correct the following information to conform to the records of the
Department):
(a) 0000 Xxxxx Xxxxxx Xxxxxxxxxx XX 00000 Allegheny
----------------------------------------------------------------------------------------------------------------------
Number and Street City State Zip County
(b)
c/o:
-----------------------------------------------------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and official publication purposes.
___ The surviving corporation is a qualified foreign business corporation incorporated under the laws of _________________
_________________________________________ and the (a) address of its current registered office in this Commonwealth or
(b) name of its commercial registered office provider and the county of venue is (the Department is hereby authorized
to correct the following information to conform to the records of the Department):
(a)
---------------------------------------------------------------------------------------------------------------------
Number and Street City State Zip County
(b) c/o:
----------------------------------------------------------------------------------------------------------------
Name of Commercial Registered Office Provider County
For a corporation represented by a commercial registered office provider, the county in (b) shall be deemed the
county in which the corporation is located for venue and official publication purposes.
___ The surviving corporation is a nonqualified foreign business corporation incorporated under the laws of ____________
_________________________________________ and the address of its principal office under the laws of such domicillary
Jurisdiction is:
---------------------------------------------------------------------------------------------------------------------------
Number and Street City State Zip County
3. The name and address of the registered office in this Commonwealth or name of its commercial registered office
provider and the county of venue of each other domestic business corporation and qualified foreign business
corporation which is a party to the plan of merger are as follows:
Name of Corporation Address of Registered Office or Name of Commercial Registered Office Provider County
Ironbridge Acquisition Corp. Corporation Service Company Dauphin
4. (Check, and if appropriate complete, one of the following):
X The plan of merger shall be effective upon filing these Articles of Merger in the Department of State.
-----
The plan of merger shall be effective on at
----- --------------------------------- --------------------------------------
Date Hour
5. The manner in which the plan of merger was adopted by each domestic corporation is as follows:
Name of Corporation Manner of Adoption
Ironbridge Acquisition Corp. By its Board of Directors and Sole Shareholder pursuant to 15 Xx.X.X.xx. 1922(c)
and 1924(a)
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Pitt-Des Moines, Inc. Deemed to be adopted by it pursuant to 15 Xx.X.X.xx. 1924(b)(3) and approved by its
Board of Directors pursuant to ss.2539(1)
---------------------------------------------------------------------------------------------------------------------------
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6. (Strike out this paragraph if no foreign corporation is a party to the merger).
7. (Check, and if appropriate complete, one of the following):
X The plan of merger is set forth in full in Exhibit A attached hereto and made a party hereof.
-----
Pursuant to 15 Xx.X.X.xx. 1901 (relating to omission of certain provisions from filed plans) the provisions, if any, of
----- the Plan of Merger that amend or constitute the operative Articles of Incorporation of the Surviving
Corporation as in effect subsequent to the Effective Date of the plan are set forth in full in Exhibit 1
attached hereto and made a part hereof. The full text of the Plan of Merger is on file at the principal
place of business of the surviving corporation, the address of which is:
---------------------------------------------------------------------------------------------------------------------------
Number and Street City State Zip
IN TESTIMONY WHEREOF, the undersigned corporation or each undersigned corporation has caused these Articles of
Merger to be signed by a duly authorized officer thereof this day of , 2002.
------- -----------------------
Ironbridge Acquisition Corp. Pitt-Des Moines, Inc.
------------------------------------------------------------------ ----------------------------------------------------------
(Name of Corporation) (Name of Corporation)
By:
----------------------------------------------------------- ----------------------------------------------------------
(Signature) (Signature)
Title:
--------------------------------------------------------- ----------------------------------------------------------
Exhibit A to Articles of Merger
Plan of Merger
(See Exhibit (d)(2) to the Schedule TO)
EXHIBIT D
FORM OF CLOSING CERTIFICATE
PITT DES-MOINES, INC.
CLOSING CERTIFICATE
I, the undersigned, Chief Financial Officer of Pitt Des-Moines, Inc.
(the "Company"), do hereby certify, solely in my capacity as an officer of the
Company and not in my individual capacity, on behalf of the Company, to the best
of my knowledge, that there is, as of the Effective Date, One Hundred Thirty-Two
Million Dollars ($132,000,000.00) of unrestricted cash in the Company and such
amount has been transferred to an account at an institution designated by
Ironbridge Acquisition Corp.
Pitt Des-Moines, Inc.
By: __________________________
Chief Financial Officer
EXHIBIT E
FORM OF OPINION OF COUNSEL TO PARENT
[Date of Closing]
Pitt-Des Moines, Inc.
Town Xxxxxx Xxx, Xxxxx 000
0000 Xxxx Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxx 00000
Attention: President
Re: Ironbridge Holding LLC (2269/71)
-------------------------------
Ladies and Gentlemen:
We have acted as counsel to Ironbridge Holding LLC, a Delaware limited
liability company ("Parent") and Ironbridge Acquisition Corp., a Pennsylvania
corporation and a wholly owned subsidiary of Parent ("Purchaser"), in connection
with the transactions contemplated by that certain Merger Agreement, dated as of
February 1, 2002 (the "Merger Agreement"), by and among Parent, Purchaser and
Pitt-Des Moines, Inc. ("PDM"). Except as otherwise defined herein, capitalized
terms used in this opinion letter are defined as set forth in the Merger
Agreement.
In connection with the opinions set forth below, we have examined, and
are familiar with, executed originals or copies, certified or otherwise
identified to our satisfaction, of the Merger Agreement, together with originals
or copies of such corporate records, documents, instruments, and agreements as
we have deemed necessary or appropriate as a basis for the opinions set forth
below.
We have also reviewed the organizational documents of Parent and
Purchaser, and such other documents and records including, among other things,
the documents delivered on the date hereof pursuant to the Merger Agreement and
we have made such examinations of law, as we have deemed necessary or
appropriate for purposes of this opinion.
In rendering the opinions set forth below, we have assumed that (i) all
signatures on any executed documents are genuine and that each of the parties
signatory thereto (other than Parent and Purchaser) has all requisite legal
capacity, and the individuals representing such parties have all requisite
authority and legal capacity necessary thereto; (ii) all documents and
certificates submitted to us as originals are authentic; (iii) all documents
submitted to us as photostatic or facsimile copies conform with the originals;
and (iv) there exists no agreement (written or oral), instrument, or document to
which PDM, Parent or Purchaser is a party modifying or in any manner affecting
their respective rights, remedies, duties, obligations, covenants or agreements
provided by the Merger Agreement.
We have further assumed, with respect to all of the documents referred
to in this letter, that (except to the extent set forth in the opinions
expressed below as to Parent and Purchaser): (i) such documents have been duly
authorized by, have been duly executed and
delivered by, and constitute enforceable obligations of, each of the parties to
such documents; (ii) all signatories to such documents have been duly
authorized; (iii) all of the parties to such documents are duly organized and
validly existing and have such corporate or other power and authority to
execute, deliver and perform their respective obligations under each of such
documents; (iv) all necessary consents, approvals, authorizations,
registrations, declarations and filings (governmental or otherwise) and all
other conditions precedent with respect to the legal and valid execution and
delivery of, and performance under, the Merger Agreement by each party thereto
other than Parent and Purchaser, have been made or satisfied or have occurred
and are in full force and effect.
In making our examination of documents which call for execution by
parties other than Parent or Purchaser ("Other Parties"), we have further
assumed the enforceability thereof against all the Other Parties; and we have
assumed that each of the Other Parties (i) has satisfied those legal
requirements that are applicable to it to the extent necessary to make the
Merger Agreement enforceable against it, and (ii) has complied with all legal
requirements pertaining to its status as such status relates to its rights to
enforce the Merger Agreement against Parent and Purchaser.
As to all other matters of fact material to the opinions expressed
below, we have relied upon (i) certificates and the representations set forth
therein, obtained from a duly authorized officer of Parent and Purchaser, (ii)
the accuracy of the representations and warranties of Parent and Purchaser
contained in the Merger Agreement, (iii) a good standing certificate of the
Secretary of State of the State of Delaware dated __________ issued on behalf of
Parent, and (iv) a subsistence certificate of the Secretary of State of the
Commonwealth of Pennsylvania dated ____________ issued on behalf of Purchaser.
With regard to the "good standing" or "subsistence" of Parent or Purchaser,
respectively, our opinions in numbered paragraphs 1 and 2 below are qualified in
that no opinion is expressed respecting any arrearage in the payment of any
state or local taxes, which arrearage, if any, could adversely affect Parent's
or Purchaser's good standing or subsistence, as the case may be; however, to our
knowledge, there are no such arrearages outstanding. In connection with any and
all such certificates, representations and warranties dated or made prior to the
date hereof, with your permission, we have assumed that each and every matter
certified, represented or warranted thereby is true, effective and accurate as
of the date hereof. Furthermore, to the extent that any of our opinions herein
rely on or are based in whole or in part upon the existence of such facts, we
call your attention to the fact that our opinions are limited to such facts as
they exist on the date hereof, and we disclaim any undertakings to advise you of
changes which hereafter may be brought to our attention.
For purposes of rendering the opinions set forth in numbered paragraphs
2, 4, 6, and 7 of this opinion, we have relied exclusively, with your
permission, upon the opinion of even date herewith of Xxxxx Xxxxxx LLP, special
Pennsylvania counsel to Parent and Purchaser addressed to Purchaser (the "Xxxxx
Xxxxxx Opinion"), a copy of which is attached hereto as Exhibit A.
Whenever our opinion herein is qualified by the phrase `to the best of
our knowledge", "known to us" or similar language, such language means the
actual knowledge of the attorneys of this firm who have had active involvement
in negotiating, reviewing or preparing the Merger Agreement. We have not,
however, examined any public records or undertaken any other
special or independent investigation in connection with any such opinion. Based
upon the foregoing and subject to the qualifications hereinafter set forth, we
are of the opinion that:
1. Parent is a Delaware limited liability company, duly
organized and in good standing under the laws of the State of Delaware.
2. Purchaser is a Pennsylvania business corporation duly
organized and presently subsisting under the laws of the Commonwealth
of Pennsylvania.
3. Parent has the power and authority to execute, deliver and
perform all of its obligations under the Merger Agreement.
4. Purchaser has the corporate power and authority to execute,
deliver and perform all of its obligations under the Merger Agreement.
5. Parent has taken all necessary action to authorize the
execution, delivery and performance by Parent of the Merger Agreement,
and has duly executed and delivered the Merger Agreement.
6. Purchaser has taken all corporate action necessary to
authorize the execution, delivery and performance of the Merger
Agreement, and has duly executed and delivered the Merger Agreement.
7. The Merger Agreement is a valid and binding obligation of
each of Parent and Purchaser, enforceable against each of Parent and
Purchaser in accordance with its terms, except as may be limited by (a)
bankruptcy, insolvency, reorganization, moratorium, fraudulent transfer
or other similar laws affecting the rights and remedies of creditors
generally, and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
including (without limitation) concepts of materiality, reasonableness,
good faith and fair dealing.
The foregoing opinions are further qualified to the extent that we
express no opinion as to: (i) the enforceability of any provisions of the Merger
Agreement that purport to waive any rights or remedies otherwise available under
applicable law; and (ii) the enforceability of any provisions of the Merger
Agreement that purport to waive or change any rules of civil procedure
(including, without limitation, the consent to jurisdiction of courts located in
a forum other than that in which any party is located). Our opinion is further
subject, in its entirety, to limitations imposed by bankruptcy, insolvency,
reorganization, marshalling, moratorium, equity of redemption or similar laws of
general application affecting the enforceability of the rights of creditors, and
to limitations imposed by the application of equitable principles (whether
enforcement is sought in equity or at law), including, by way of example,
equitable principles that (i) require that the parties to the transaction act
with reasonableness or good faith or (ii) might not require Purchaser or Parent
to perform restrictive or other covenants if enforcement of same against such
party would be deemed unreasonable under the circumstances.
As used in paragraph 7 of this opinion letter, the term "fraudulent
transfer laws" is understood to include laws relating to restrictions on the
ability of a corporation to declare or pay dividends, reacquire shares of its
own stock, or make other distributions on or with respect to its
capital stock (such as ss. 1551 of the Pennsylvania Business Corporation Law),
as well as the Pennsylvania Fraudulent Transfer Act and similar laws.
The opinions set forth herein are limited to the matters specifically
addressed herein (subject to all of the qualifications and limitations provided
herein), and no other opinions are expressed or may be implied or inferred.
Specifically, we call to your attention that we have relied upon the Xxxxx
Xxxxxx Opinion as to each of the matters addressed in paragraphs 2, 4, 6, and 7
of such opinion and, except in reliance on such paragraphs of the Xxxxx Xxxxxx
Opinion, we express no opinion as to the organizational status of Purchaser or
the power and authority of Purchaser to enter into the Merger Agreement. The
foregoing opinions are made as of the date hereof and are expressly subject to
there being no material change in the law and there being no additional facts
which would materially affect the validity of the assumptions and conclusions
set forth herein or upon which these opinions are based. We undertake no
obligation to update such opinions at any time subsequent to the date hereof
We call your attention to the fact that the attorneys of this firm
involved in the representation of Parent and Purchaser are admitted to practice
law in the State of New York. Accordingly, we express no opinion with respect to
the effect of any law other than the laws of the State of New York, the Limited
Liability Company Act of the State of Delaware and the federal laws of the
United States of America. We express no opinion with respect to any laws of the
Commonwealth of Pennsylvania or with respect to the application of any antitrust
or securities laws to, or the effect of any such laws on, the transactions
contemplated by the Merger Agreement.
This opinion is furnished for your sole benefit in connection with the
transactions described herein and may not be relied upon for any other purpose
or by any other party without the prior written consent of this firm.
Very truly yours,
Exhibit A to Form of Opinion of Counsel to Parent
Form of Opinion of Special Pennsylvania Counsel
to Parent and Purchaser
[Date of Closing]
Ironbridge Acquisition Corp.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as special Pennsylvania counsel for Ironbridge
Acquisition Corp., a Pennsylvania corporation (the "Purchaser") in connection
with the preparation, execution and delivery of that certain Merger Agreement
(the "Merger Agreement") dated as of January [31], 2002 by and among Purchaser,
Ironbridge Holdings LLC, a Delaware limited liability company ("Parent") and
Pitt-Des Moines, Inc., a Pennsylvania corporation (the "Company"). All
capitalized terms used herein but not defined herein shall have the same
respective meanings set forth in the Merger Agreement.
As such counsel, we have examined an executed copy of the Merger
Agreement; the Articles of Incorporation and bylaws of the Purchaser as amended
through the date hereof and as made available to us by an officer of the
Purchaser; certified copies of resolutions adopted by the Board of Directors and
shareholder of Purchaser; and such other agreements, documents and matters as we
have deemed necessary in connection with delivering this opinion.
In the course of such examination, we have assumed the genuineness of
all signatures, the authenticity of all documents submitted to us as originals
and the conformity with the original documents of all documents submitted to us
as copies. In rendering the opinion set forth below, we have assumed the due
authorization, execution and delivery by Parent and the Company of the Merger
Agreement and all other agreements and documents to be executed and delivered by
either of them pursuant to the Merger Agreement, that no further corporate or
limited liability company action is required for either of them to perform their
respective obligations thereunder and that the Merger Agreement and any such
other agreements are the enforceable obligations of the parties thereto other
than Purchaser. We have also assumed without investigation that Parent is the
sole shareholder of Purchaser. As to certain factual matters, we have relied
upon certificates of public officials.
Based upon the foregoing, and solely in reliance thereon, it is our
opinion that:
1. Purchaser is a Pennsylvania corporation duly organized and presently
subsisting under the laws of the Commonwealth of Pennsylvania.
2. Purchaser has the corporate power and authority to execute and
deliver the Merger Agreement and to perform all of its obligations thereunder.
3. Purchaser has taken all necessary corporate actions to authorize the
execution and delivery by Purchaser of the Merger Agreement and the performance
by Purchaser of its obligations thereunder. Purchaser has duly executed and
delivered the Merger Agreement.
4. The Merger Agreement constitutes the valid and binding obligation of
Purchaser enforceable against Purchaser in accordance with its terms, except as
such enforceability may be limited by: (a) bankruptcy, insolvency, moratorium,
reorganization, fraudulent transfer of other similar laws affecting the rights
and remedies of creditor generally and (b) general principles of equity
(including the availability of specific performance as a remedy and regardless
of whether such enforceability is considered in a proceeding in equity or at
law), including, without limitation, concepts of materiality, reasonableness,
good faith and fair dealing.
This opinion is limited to the laws of the Commonwealth of
Pennsylvania. We expressly disclaim any opinion as to the applicability or
effect of any securities or antitrust laws, and we express no opinion with
respect to the effectiveness of the Merger.
As used in numbered paragraph 4 above, the term "fraudulent transfer
laws" is understood to include laws relating to restrictions on the ability of a
corporation to declare or pay dividends, reacquire shares of its own stock or
make other distributions on or with respect to its capital stock (such as
Section 1551 of the Pennsylvania Business Corporation Law), as well as the
Pennsylvania Fraudulent Transfer Act and similar laws.
The opinions given herein are as of the date hereof, and we assume no
obligations to update or supplement this letter to reflect any facts or
circumstances that may hereafter come to our attention or any change in law that
may hereafter occur.
This opinion is delivered to you at your request and may not be
utilized or relied upon, quoted, referred to or circulated by any other person
without our prior written consent. We understand that Xxxxx Raysman Xxxxxxxxx
Xxxxxx & Xxxxxxx LLP will be relying upon this opinion in delivering its opinion
to the Company, and we hereby consent to such reliance.
Sincerely,
EXHIBIT F
FORM OF OPINION OF COUNSEL TO COMPANY
[Date of Closing]
Ironbridge Acquisition Corp.
Ironbridge Holding LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Rabobank Nederland, New York Branch, as Agent
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Ladies and Gentlemen:
We have acted as counsel for Pitt-Des Moines, Inc., a Pennsylvania
corporation (the "Company"), in connection with the preparation, negotiation,
execution and delivery of a certain Merger Agreement, dated as of February 1,
2002, by and among Ironbridge Holding LLC, Ironbridge Acquisition Corp. and the
Company (the "Merger Agreement").
We are delivering this opinion letter to you pursuant to Section 7.3 of
the Merger Agreement. Unless otherwise defined herein, capitalized terms shall
have the respective meanings set forth in the Merger Agreement.
On the basis of and subject to the assumptions, qualifications,
exceptions and limitations set forth below, we express the following opinions:
1. The Company is a Pennsylvania business corporation duly organized
and presently subsisting under the laws of the Commonwealth of Pennsylvania.
2. The Company has the corporate power and authority to execute,
deliver and perform all of its obligations under the Merger Agreement.
3. The Company has taken all corporate action necessary to authorize
the execution, delivery and performance of the Merger Agreement, and has duly
executed and delivered it.
4. The Merger Agreement is a valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms except as
may be limited by (a) bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer or other similar laws affecting the rights and remedies of
creditors generally, and (b) general principles of equity (regardless of whether
such enforceability is considered in a proceeding in equity or at law),
including (without limitation) concepts of materiality, reasonableness, good
faith and fair dealing.
5. Assuming that as soon as practicable after Purchaser's acceptance
for payment of not less than 80% of all then outstanding Shares in accordance
with the Offer, the Board of Directors of the Purchaser has executed and
delivered the written consent attached hereto, then immediately upon filing of
the Articles of Merger with the Department of State of the Commonwealth of
Pennsylvania, the Merger shall be effective without any further action on the
part of the shareholders of the Company or otherwise and upon effectiveness of
the Merger all obligations of the Company will become legal, valid and binding
obligations of the Surviving Corporation in the Merger.
For purposes of this opinion letter, we have among other things
examined the following:
(i) the Merger Agreement;
(ii) the Articles of Incorporation and all amendments thereto of
the Company (the "Charter");
(iii) the Bylaws of the Company;
(iv) certified copies of resolutions of the Board of Directors of
the Company relating to the Merger Agreement;
(v) various certificates of public officials, and certificates of
officers of the Company as to factual matters; and
(vi) such other agreements, documents and records as we have deemed
necessary as a basis for the opinions expressed above;
and we have made such other investigation as we have deemed appropriate.
As to certain matters of fact material to the opinions expressed
herein, we have relied upon certificates of public officials and of officers of
the Company with respect to the accuracy of factual matters contained therein,
which we have not independently established.
The law covered by the opinions expressed herein is limited to the law
of the Commonwealth of Pennsylvania and the federal law of the United States of
America.
Our opinions above are subject to the proviso that no opinion is given
as to the application of any antitrust or securities laws. We affirm that the
Pennsylvania Business Corporation Law of 1988, as amended, is not a securities
law excluded from our opinion by the preceding sentence.
In rendering the opinions hereinbefore expressed, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals, the conformity to authentic, original documents of all documents
submitted to us as copies, the due authority of the parties executing such
documents (other than those executing on behalf of the Company), and the legal
capacity of natural persons.
In making our examination of documents which call for execution by
parties other than the Company ("Other Parties"), we have assumed the
enforceability thereof against all the Other Parties; and we have assumed that
each of the Other Parties (i) has satisfied those legal requirements that are
applicable to it to the extent necessary to make the Merger Agreement
enforceable against it, and (ii) has complied with all legal requirements
pertaining to its status as such status relates to its rights to enforce the
Merger Agreement against the Company.
As used in paragraph 4 of this opinion letter, the term "fraudulent
transfer laws" is understood to include laws relating to restrictions on the
ability of a corporation to declare or pay dividends, reacquire shares of its
own stock, or make other distributions on or with respect to its capital stock
(such as ss. 1551 of the Pennsylvania Business Corporation Law), as well as the
Pennsylvania Fraudulent Transfer Act and similar laws.
We express no opinion on the validity, binding effect or enforceability
under certain circumstances of provisions of the Merger Agreement (i) which
waive any rights afforded to any party thereto under any statute or
constitutional provision; (ii) which waive broadly or vaguely stated rights or
future rights, or waive certain rights or defenses to obligations where such
waivers are against statutes, laws or public policy; or (iii) the breach of
which a court concludes is not material or does not adversely affect Ironbridge
Holding LLC or Ironbridge Acquisition Corp. We express no opinion on the
enforceability of any provisions in the Merger Agreement relating to conflicts
of law or choice of law or jurisdiction or venue. We also express no opinion on
compliance with fiduciary duty requirements.
The opinions in this letter are limited to the matters set forth
herein; no Opinion may be inferred or implied beyond the matters expressly
stated in this letter; and the opinions must be read in conjunction with the
assumptions, limitations, exceptions and qualifications set forth in this
letter. We assume no obligation to update this opinion to advise you of any
changes in facts or laws subsequent to the date hereof.
This opinion letter may be relied upon only by you in connection with
the execution and delivery of the Merger Agreement and the transactions
contemplated thereby. You may not rely upon this opinion letter for any other
purpose, and no other person or entity may rely upon this opinion letter for any
purpose without our prior written consent. This opinion letter may not be
referred to, or described, furnished or quoted to, any other person, firm or
entity, without in each instance our prior written consent.
Yours truly,
XXXXXXXX XXXXXXXXX
PROFESSIONAL CORPORATION
By:
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