Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
among
NEWPARK RESOURCES, INC.
JPI ACQUISITION CORP.
X. XXXXXX INTERESTS, INC.
UNI-MAT INTERNATIONAL, INC.
and
XXXXXX X. XXXXXX
April 8, 1996
AGREEMENT AND PLAN OF REORGANIZATION
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THIS AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of the 8th day of April, 1996, by and among Newpark Resources,
Inc., a Delaware corporation ("Newpark"), JPI Acquisition Corp., a Texas
corporation and a wholly-owned subsidiary of Newpark ("Newco"), X. Xxxxxx
Interests, Inc., a Texas corporation (the "Company"), Uni-Mat International,
Inc., a Texas corporation ("Uni-Mat"), and Xxxxxx X. Xxxxxx, an individual (the
"Shareholder"), with reference to the facts set forth below. The Company, Uni-
Mat and the Shareholder are sometimes hereinafter collectively referred to as
the "Pouyer Group".
A. The Company owns or, prior to the Closing, will own the exclusive right
to use certain patents and other intellectual property rights in connection with
the use, sale and lease in the United States of prefabricated mats for the site
preparation industry (other than for sale or lease to any department, bureau or
agency of the United States) and for certain other purposes. The Shareholder
owns beneficially and of record all of the outstanding capital stock of the
Company and Uni-Mat.
B. The parties intend that this Agreement shall constitute a plan of
reorganization (the "Plan") by a transaction of a type described in Section
368(a)(1)(A) and Section 368(a)(2)(D) of the Internal Revenue Code of 1986, as
amended (the "Code"). The Plan comprises (i) the merger (the "Merger") of the
Company into Newco, with Newco continuing as the surviving corporation, pursuant
to this Agreement and the Agreement of Merger in the form attached hereto as
Exhibit "A" (the "Agreement of Merger"), on the terms contained herein and in
accordance with the applicable provisions of the Texas Business Corporation Act
(the "BCA"), and (ii) the conversion of all the outstanding shares of capital
stock of the Company into 68,611 newly issued shares of Newpark Common Stock
(the "Newpark Shares") and $500,000 in cash.
C. The parties believe that it is in their best interests to adopt and
consummate the Plan.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
and agreements set forth herein, the parties agree as follows:
1. The Merger.
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1.1 Adoption of Plan of Reorganization.
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Newpark, Newco, the Company and the Shareholder hereby adopt the plan
of reorganization set forth herein.
1.2 Merger of the Company into Newco.
--------------------------------
Subject to the provisions of this Agreement and the BCA, at the "Effective
Time" (as defined in paragraph 1.3), the Company shall be merged with and into
Newco, and the separate corporate existence of the Company shall cease. Newco
shall be the surviving corporation in the Merger (hereinafter sometimes called
the "Surviving Corporation") and shall continue its corporate existence under
the laws of the State of Texas. The Merger shall have the effects set forth in
Article 5.06 of the BCA.
1.3 Effective Time.
--------------
If all of the conditions precedent to the parties' obligations to
consummate the Merger under this Agreement are satisfied or waived and this
Agreement has not been terminated, the parties shall cause the Agreement of
Merger to be duly executed and filed with the Secretary of State of Texas. The
Merger shall become effective as of the time the Agreement of Merger is accepted
for filing and officially filed. The date and time when the Merger becomes
effective is referred to herein as the "Effective Time". This Agreement and the
Agreement of Merger are hereinafter collectively referred to as the "Merger
Agreements".
1.4 Conversion of Shares.
--------------------
As of the Effective Time, by virtue of the Merger and without any action on
the part of any holder thereof:
(a) The shares of Common Stock of Newco which are issued and outstanding
immediately prior to the Effective Time shall not be changed or converted as a
result of the Merger, but shall remain outstanding as shares of the Surviving
Corporation.
(b) All of the outstanding shares of capital stock of the Company issued
and outstanding immediately prior to the Effective Time (the "Company Shares")
shall be converted (in the aggregate) into the right to receive the sum of
$500,000 and 68,611 shares of Newpark Common Stock.
1.5 Surrender of Shares.
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(a) The Shareholder, as the holder of all of the Company Shares, upon the
surrender to Newpark of the certificate or certificates which, immediately prior
to the Effective Time, represented the Company Shares, shall be entitled to
receive in exchange therefor the sum of $500,000, payable, in the discretion of
Newpark, by check or by the wire transfer of immediately available funds, and
certificates representing the number of shares of Newpark Common Stock into
which the shares of capital stock of the Company theretofor represented by the
certificate or certificates so surrendered shall have been converted pursuant to
the provisions of paragraph 1.4(b).
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(b) Until surrendered and exchanged as herein provided, each outstanding
certificate which, prior to the Effective Time, represented capital stock of the
Company shall represent for all purposes only the right to receive the
consideration provided in paragraph 1.4(b). Certificates representing the
Newpark Shares shall be delivered to the Shareholder as soon as practicable
following the Effective Time.
2. Ancillary Agreements.
--------------------
2.1 License Agreement.
-----------------
In order to clarify the rights of the Company to use the "Technology" (as
defined in paragraph 15.8), prior to the Closing, the Shareholder and the
Company shall execute and deliver an Amended and Restated License Agreement (the
"License Agreement") substantially in the form of Schedule 2.1.
2.2 Registration Rights Agreement.
-----------------------------
On the Closing Date, Newpark and the Shareholder shall execute and deliver
a registration rights agreement (the "Registration Rights Agreement")
substantially in the form of Schedule 2.2.
2.3 Noncompetition Agreement.
------------------------
On the Closing Date, Newpark and the Shareholder shall execute and deliver
a noncompetition agreement (the "Shareholder Noncompetition Agreement")
substantially in the form of Schedule 2.3(a), and Newpark and Uni-Mat shall
execute and deliver a noncompetition agreement (the "Uni-Mat Noncompetition
Agreement") substantially in the form of Schedule 2.3(b). In consideration of
the execution and delivery of the Uni-Mat Noncompetition Agreement, at the
Closing, Newpark shall pay to Uni-Mat or its nominee the sum of $300,000 by
check or by the wire transfer of immediately available funds. No additional
consideration shall be payable in connection with the execution and delivery of
the Shareholder Noncompetition Agreement.
2.4 Manufacturing Agreement.
-----------------------
On the Closing Date, Newpark, Uni-Mat and the Shareholder shall execute and
deliver a manufacturing agreement (the "Manufacturing Agreement") substantially
in the form of Schedule 2.4, pursuant to which Uni-Mat and the Shareholder shall
be granted a right of first refusal, on an order by order basis, to manufacture
the products used, sold or leased by Newpark and its "Affiliates" (as defined in
paragraph 15.8) after the Closing that incorporate inventions, discoveries or
processes covered by patents included in the Technology.
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3. Representations and Warranties of the Pouyer Group.
--------------------------------------------------
Except as otherwise specifically set forth in a letter (the "Disclosure
Letter") delivered by the Shareholder to Newpark prior to the execution hereof,
the Company, Uni-Mat and the Shareholder hereby jointly and severally represent
and warrant to Newpark and Newco as follows:
3.1 Organization and Good Standing.
------------------------------
(a) The Company is a corporation duly organized and in good standing under
the laws of the State of Texas, has full corporate power and authority to carry
on its business as now conducted by it and is entitled to own or lease and
operate its properties and assets now owned or leased and operated by it. The
Company is duly qualified and in good standing as a foreign corporation in each
jurisdiction where the character or location of the assets owned by the Company
or the nature of the business transacted by the Company requires such
qualification, except where the failure to be so qualified would not have a
material adverse effect on the financial condition, results of operations,
business or prospects of the Company. Schedule 3.1(a) sets forth a list of the
jurisdictions in which the Company is qualified to do business.
(b) The Company has furnished to Newpark complete and correct copies of the
Company's Articles of Incorporation and Bylaws, as in effect on the date hereof.
(c) The Company has heretofore delivered to Newpark for its examination
copies of the minute books, stock certificate books and corporate seal of the
Company. Said minute books are accurate in all material respects and reflect
all resolutions adopted and all material actions expressly authorized or
ratified by the shareholders and directors of the Company. The stock
certificate books reflect all issuances, transfers and cancellations of capital
stock of the Company.
3.2 Capitalization.
--------------
(a) The authorized capital stock of the Company consists of 1,000 shares of
Common Stock, no par value, of which 1,000 shares (i.e., the "Company Shares")
are issued and outstanding as of the date hereof. The Company Shares are
validly issued, fully paid and nonassessable and have been issued in full
compliance with all state and federal securities laws.
(b) The Shareholder owns, and immediately prior to the Effective Time will
own, all right, title and interest in and to all of the Company Shares, free and
clear of any claims, liens, encumbrances, charges, restrictions or adverse
rights of any kind whatsoever. Without limiting the generality of the
foregoing, no current or former spouse of the Shareholder owns any interest in
the Company Shares.
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(c) There are no options, warrants, subscriptions or other rights
outstanding for the purchase of, nor any securities convertible into, capital
stock of the Company. No shares of the Company are held as treasury stock.
3.3 Investment in Other Entities.
----------------------------
(a) The Company does not have any debt interest (other than trade accounts
receivable) or equity interest or right or option to acquire any debt or equity
interest in any other entity.
(b) Schedule 3.3 sets forth a true and complete list of all corporations,
partnerships and other entities in which Uni-Mat, the Shareholder or any of
their Affiliates owns, directly or indirectly, any equity interest (each a
"Related Entity"), the jurisdiction in which each Related Entity is incorporated
or organized, all shares of capital stock or other ownership interests that each
Related Entity has authorized and outstanding and a brief description of the
business conducted by each Related Entity. Except as set forth on Schedule 3.3,
neither the Shareholder, Uni-Mat or any Related Entity nor any Affiliate of the
Shareholder, Uni-Mat or any Related Entity is engaged in the business of
providing site preparation services, regardless of whether such business
involves the use of the Technology, or has any rights to use the Technology.
3.4 Authority.
---------
The Company has the full corporate power and authority to execute and
deliver the Merger Agreements, to perform the obligations and covenants set
forth therein and to consummate the Merger and the other transactions
contemplated thereby. The execution and delivery of the Merger Agreements by
the Company and the consummation of the transactions contemplated thereby have
been duly authorized by the Board of Directors of the Company and by the
Shareholder in his capacity as the sole shareholder of the Company, and no
further corporate action is necessary on the part of the Company to make the
Merger Agreements binding upon the Company in accordance with their terms. Uni-
Mat has the full corporate power and authority to execute and deliver this
Agreement, to perform the obligations and covenants set forth herein and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement by Uni-Mat and the consummation of the transactions contemplated
hereby have been duly authorized by the Board of Directors of Uni-Mat, and no
further corporate action is necessary on the part of Uni-Mat to make this
Agreement binding upon Uni-Mat in accordance with its terms. This Agreement has
been duly executed and delivered by the Company, Uni-Mat and the Shareholder and
constitutes the valid and binding agreement of each of them, enforceable against
them in accordance with its terms, and, when the Agreement of Merger has been
duly executed and delivered, it will constitute the valid and binding Agreement
of the Company, enforceable against the Company in accordance with its terms, in
each case subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforceability of
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creditors' rights generally, general equitable principles and the discretion of
courts in granting equitable remedies.
3.5 No Conflicts or Violations.
--------------------------
Except as set forth on Schedule 3.5, neither the execution and delivery of
the Merger Agreements by the Company, the execution and delivery of this
Agreement by Uni-Mat and the Shareholder nor the consummation of the Merger and
the other transactions contemplated hereby will violate or conflict with,
constitute a breach of or default under, result in the loss of any material
benefit under, permit the acceleration of any obligation under or result in the
creation of a "Lien" (as defined in paragraph 15.8) under: (a) any term or
provision of the Articles of Incorporation or Bylaws of the Company or Uni-Mat;
(b) any judgment, decree or order of any "Governmental Entity" (as defined in
paragraph 15.8) or any "Company Contract" (as defined in paragraph 3.10) or any
other agreement, contract or instrument to which the Company, Uni-Mat or the
Shareholder is a party or by which any of them or any of their properties is
bound; or (c) any "Legal Requirement" (as defined in paragraph 15.8) applicable
to the Company, Uni-Mat or the Shareholder. Except for the filing and
recordation of the Agreement of Merger as required by the BCA, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any governmental agency or regulatory authority is required with respect
to the Company, Uni-Mat or the Shareholder in connection with the execution,
delivery and performance of the Merger Agreements and the consummation of the
Merger and the other transactions contemplated thereby.
3.6 Financial Statements.
--------------------
Schedule 3.6 includes the unaudited financial statements of the Company for
the three fiscal years ended December 31, 1995. (All of the financial
statements referred to in this paragraph 3.6 are hereinafter collectively
referred to as the "Company Financial Statements", and the balance sheet of the
Company as of December 31, 1995 included in the Company Financial Statements is
hereinafter referred to as the "Balance Sheet".) The Company Financial
Statements, and all other financial statements and schedules previously
delivered by the Pouyer Group to Newpark, are in accordance with the books and
records of the Company and set forth fairly the financial condition and results
of operations of the Company as at and for the periods therein specified, all
prepared in accordance with generally accepted accounting principles applied on
a basis consistent with the financial statements of prior periods.
3.7 Absence of Certain Changes.
--------------------------
Except as disclosed in Schedule 3.7 and except for changes, events or
occurrences permitted or contemplated by this Agreement, since the date of the
Balance Sheet there has not been:
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(a) Any material adverse change in the properties and assets (tangible or
intangible) of the Company or in their condition or value, or any sale, transfer
or other disposition by the Company of any of the properties and assets
reflected on the Balance Sheet;
(b) The incurrence by the Company of any indebtedness, liabilities or other
obligations, other than obligations relating to routine operating expenses
incurred in the ordinary course of business; or
(c) Any transaction entered into by the Company, Uni-Mat or the Shareholder
which is material to the business of the Company or which could materially and
adversely effect the right of Newpark to use the Technology following the
Closing.
3.8 Properties.
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(a) Except for the Liens described on Schedule 3.8(a) (which shall be
released at or before the Closing), the Company has, and on the Closing Date
will have, good and marketable title to the assets and properties shown in the
Balance Sheet or acquired since the date thereof, free and clear of all Liens.
The Company does not own or lease any real property and is not a party to any
equipment leases or other personal property leases.
(b) Subject to the further provisions of this paragraph, at the Closing,
the assets of the Company shall include (i) the "Intellectual Property Assets"
(as defined in paragraph 15.8) referred to in the first sentence of paragraph
3.9(a), and (ii) all books and records of the Company as of the date hereof.
Newpark acknowledges and agrees that the intellectual property rights owned by
the Company as of the Closing will not include any right to sell or lease
prefabricated mats under the Technology to any department, bureau or agency of
the United States or for use by any other person outside of the United States
(the "Excluded Rights"); provided, however, anything herein to the contrary
notwithstanding, the rights owned by the Company as of the Closing shall include
the right to sell or lease prefabricated mats to any state or local government
and to any non-governmental person providing products or services to any
department, bureau or agency of the United States. Prior to the Closing, the
Company may transfer to the Shareholder the rights of the Company under the
contracts described on Schedule 3.8(b) and the accounts receivable and any other
assets of the Company, other than the assets described in the first sentence of
this paragraph.
3.9 Intellectual Property.
---------------------
(a) Except for the Excluded Rights (the ownership of which shall be
retained by the Shareholder) and subject to the provisions of paragraph 11.6 and
the rights of the parties to the agreements listed on Schedule 3.8(b) and
Schedule 3.9(a), at the Closing, the Intellectual Property Assets of the Company
shall include: (i) the absolute and
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exclusive right to practice the Technology in connection with the use, sale and
lease of any and all products and services in the United States, including,
without limitation, prefabricated mats for the site preparation industry; (ii)
all "Trade Secrets" (as defined in paragraph 15.8), trademarks, trade names,
service marks and other intellectual property rights owned by the Company, Uni-
Mat or the Shareholder as of the date hereof and relating to the use, sale or
lease in the United States of prefabricated mats for the site preparation
industry; and (iii) all right, title and interest of the Pouyer Group under any
agreements (other than the agreements listed on Schedule 3.8(b)) pursuant to
which the Company, Uni-Mat or the Shareholder has agreed to sell to third
parties prefabricated mats or other products incorporating the Technology or has
licensed third parties to use the Technology in the United States. Schedule
3.9(a) sets forth a complete and accurate list of all trademarks, trade names
and service marks, whether registered or unregistered, owned or used by the
Company, Uni-Mat or the Shareholder in connection with the use, sale or lease of
prefabricated mats in the United States and a complete and accurate list and
summary description of all contracts or agreements relating to the Intellectual
Property Assets to which the Company, Uni-Mat or the Shareholder is a party or
is bound, whether as licensor or licensee or as a supplier of products and
services. Except as set forth on Schedule 3.9(a), neither the Shareholder nor
any of his Affiliates have entered into any license agreements or otherwise
granted to any person any rights to use the Technology or to purchase products
or services that are based upon, utilize or otherwise incorporate the
Technology. Each agreement listed on Schedule 3.9(a) may be terminated by the
Company on no more than 30 days notice to the other party thereto without the
payment of any penalty and without incurring any other liability or obligation
to the other party thereto.
(b) Except as disclosed on Schedule 3.9(b), the Company owns all right,
title and interest in and to the Intellectual Property Assets, neither the
Company, Uni-Mat nor the Shareholder has assigned, transferred or licensed, or
purported to assign, transfer or license, to any person any of the Intellectual
Property Assets, or any registrations therefor or any rights included therein,
and the Company is not obligated to pay any royalties or other fees to any other
person with respect to any of the Intellectual Property Assets. There are no
claims pending or, to the best knowledge of the Pouyer Group, threatened against
the Company by any person with respect to the Company's use of any of the
Intellectual Property Assets, or any facts or prior acts known to the Pouyer
Group which could reasonably be expected to serve as the basis for any such
claim. Schedule 3.9(b) also includes a description of each claim made or action
brought by the Pouyer Group against any other person for infringement or alleged
infringement of any rights included in the Intellectual Property Assets or for
unauthorized or alleged unauthorized use of the Intellectual Property Assets and
a description of the final disposition of any such claim or action. To the best
knowledge of the Pouyer Group: (i) the Intellectual Property Assets do not
infringe on or conflict with the rights of any other person; (ii) there is no
infringement by others of any rights included in the Intellectual Property
Assets; and (iii) there are no intellectual property rights owned by any other
person which could reasonably be expected to materially and adversely affect
Newpark's use of the Intellectual Property Assets after the Closing.
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(c) The Intellectual Property Assets include a license to use the
inventions, discoveries and processes covered by all patents and patent
applications owned by the Shareholder or any of his Affiliates (the "Patents").
Schedule 3.9(c) contains a complete and accurate list of all of the Patents.
Except as set forth on Exhibit 3.9(c), the Shareholder is the owner of all
right, title and interest in and to each of the Patents, free and clear of all
liens, security interests, charges, encumbrances and other adverse claims.
Without limiting the generality of the foregoing, no current or former spouse of
the Shareholder owns any interest in any Patent. All of the issued Patents
currently are in compliance with formal legal requirements (including payment of
filing, examination and maintenance fees and proofs of working or use), are
valid and enforceable and are not subject to any unpaid maintenance fees or
taxes. No Patent has been or is now involved in any interference, reissue, re-
examination or opposition proceeding. To the best knowledge of the Pouyer
Group, except as set forth on Schedule 3.9(c), there is no potentially
interfering patent or patent application of any third party. No Patent is
infringed or, to the best knowledge of the Pouyer Group, has been challenged or
threatened in any way. None of the products manufactured and sold, nor any
process or know-how used, by the Company, Uni-Mat or the Shareholder, or any of
their Affiliates, infringes or is alleged to infringe any patent or proprietary
right of any other person. All products made, used, sold or leased under the
Patents have been marked with the proper patent notice.
(d) The Company has good title and an absolute right to use the Trade
Secrets. No Trade Secret is subject to any adverse claim or has been challenged
or threatened in any way.
3.10 Contracts.
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Schedule 3.10 sets forth a complete list of all contracts, commitments and
agreements, whether oral or written, to which the Company is a party or by which
any of its assets are bound and that are in existence as of the date hereof (the
"Company Contracts"). A true and complete copy of each Company Contract (or a
true and complete description of any oral contract) has been furnished by the
Company to Newpark prior to the date hereof. Except as set forth on Schedule
3.10: (a) all Company Contracts are in full force and effect, and there have
been no written or oral amendments to or modifications of any Company Contract;
(b) no event has occurred which is, or, following any grace period or required
notice, would become a material default by the Company or, to the best knowledge
of the Pouyer Group, any other party thereto under the terms of any Company
Contract; (c) the Company has not received written notice that any person
intends to cancel or terminate any Company Contract or exercise or not exercise
any right, remedy or other option thereunder; (d) the Company has not waived any
material right under any Company Contract; and (e) none of the Company Contracts
is with a party who is an Affiliate of the Company or any of its directors,
executive officers or shareholders. At the Closing, the Company shall not be a
party to or be bound by any contract, commitment or agreement other than the
Company Contracts and contracts permitted or contemplated by this Agreement.
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3.11 Absence of Undisclosed Liabilities.
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Except for liabilities and obligations under the Company Contracts, at the
Closing the Company will not have, and none of its properties will be subject
to, any debts, liabilities or obligations of any nature, whether accrued,
absolute, contingent or otherwise, and except for liabilities and obligations
under the Company Contracts, liabilities and obligations reflected on the
Balance Sheet and obligations relating to routine operating expenses arising in
the ordinary course of business since the date of the Balance Sheet, the Company
currently does not have, and none of its properties currently are subject to,
any debts, liabilities or obligations of any nature, whether accrued, absolute,
contingent or otherwise, in each case regardless of whether such debts,
liabilities or obligations are normally shown or reflected on financial
statements prepared in a manner consistent with generally accepted accounting
principles.
3.12 Legal Proceedings.
-----------------
There are no claims, actions, suits, proceedings or investigations pending
or, to the best knowledge of the Pouyer Group, threatened against or affecting
the Company (or any of the Company's officers, directors or shareholders in
connection with the business of the Company) or the Technology before or by any
court, arbitrator or administrative or governmental body, and the Company is not
subject to any judgment, order, writ, injunction, decree or award of any court,
arbitrator or administrative or governmental body.
3.13 Taxes.
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(a) The Company has filed all income, franchise and other "Tax Returns" (as
defined in paragraph 15.8) required to be filed by it by the date hereof. All
"Taxes" (as defined in paragraph 15.8) imposed by the United States or by any
state, municipality or subdivision, or other taxing authority, which are due and
payable by the Company have been paid in full and all such Taxes will be paid in
full through the Closing Date.
(b) All contributions due from the Company pursuant to any unemployment
insurance or workers compensation laws and all sales or use Taxes which are due
or payable by the Company have been paid in full and will be so paid through the
Closing Date. The Company has withheld and paid to, or will cause to be paid
to, the appropriate taxing authorities all amounts required to be withheld from
the wages of its employees under state law and the applicable provisions of the
Code, and the Company will continue to do so with respect to all wages paid by
it through the Closing Date.
(c) The Company has furnished to Newpark true and complete copies of the
federal income Tax Returns of the Company covering the last three full fiscal
years of the Company and constituting complete and accurate representations of
the
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tax liabilities of the Company for the relevant periods stated therein and
accurately reflecting its position with respect to future tax liabilities by
accurately setting forth all relevant items, including the Tax bases of all
assets, where required to be set forth in such Tax Returns.
3.14 Permits and Licenses; Compliance with Laws.
------------------------------------------
(a) The Company has obtained all material permits, licenses and
governmental authorizations that are required by any Governmental Entity to
enable the Company to conduct its business as conducted on the date hereof (the
"Permits"), and the Company is in compliance in all material respects with the
terms and conditions of each Permit. Schedule 3.14 contains a true and complete
list of all of the Permits, and each Permit is in full force and effect.
(b) The Company is in compliance in all material respects with all
applicable Legal Requirements. Without limiting the generality of the
foregoing, all operations heretofore conducted by the Company have been
conducted in compliance in all material respects with all "Environmental Legal
Requirements" (as defined in paragraph 15.8), and no "Hazardous Materials" (as
defined in paragraph 15.8) have been disposed or otherwise released into the
environment by or at the direction of the Company or any of its Affiliates, or
in connection with the operation of the Company's business, in quantities,
concentrations or locations that require remediation under any Environmental
Legal Requirements.
3.15 Personnel; Labor Relations.
--------------------------
(a) Schedule 3.15 contains a list of all current employees of the Company.
All current employees are employed on an "at-will" basis and are not entitled to
any severance benefits.
(b) There are no claims, controversies or grievances pending or threatened
between the Company and any of its current or former employees. The Company has
complied in all material respects with all laws relating to the employment of
labor, including any provisions thereof relating to wages, hours, collective
bargaining and the payment of social security and similar Taxes, and the Company
is not liable for any arrears or wages or any Taxes or penalties for failure to
comply with any of the foregoing.
3.16 Insurance.
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Schedule 3.16 sets forth a complete list of all insurance policies that the
Company maintains, indicating risks insured against, carrier, policy number,
amount of coverage, premiums and expiration date.
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3.17 Interests in Competitors and Suppliers.
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Except as set forth on Schedule 3.17, neither the Shareholder, Uni-Mat or
any of their Affiliates, nor any of the directors, officers or shareholders of
the Company or Uni-Mat or any of their Affiliates, own, directly or indirectly,
individually or collectively, any interest in any person which: (a) is a
competitor, customer or supplier of the Company; or (b) has an existing
contractual relationship with the Company. Ownership of not more than one
percent of any class of capital stock of any publicly traded corporation or
other entity shall not constitute a breach of the representations and warranties
contained in this paragraph.
3.18 Employee Benefit Plans.
----------------------
The Company does not maintain or contribute to any "employee pension
benefit plan", as such term is defined in Section 3 of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA"), deferred compensation or
other similar employee benefit plan. Except as set forth in Schedule 3.18, the
Company does not maintain any "employee welfare benefit plan", as such term is
defined in Section 3 of ERISA, whether insured or otherwise, and each such
"employee welfare benefit plan" listed on said schedule is in compliance with
the provisions of ERISA.
3.19 All Rights Assignable.
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The Company may transfer and assign all of its right, title and interest in
and to its properties, assets and contracts without obtaining the consent or
approval of any other person.
3.20 Brokerage and Finder's Fees.
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Neither the Company, Uni-Mat or the Shareholder, nor any of their
Affiliates, has incurred any liability to any broker, finder or agent for any
brokerage fees, finder's fees or commissions with respect to the transactions
contemplated by this Agreement.
3.21 Acquisition of Newpark Shares for Investment.
--------------------------------------------
(a) The Shareholder has such knowledge and experience in financial and
business matters that he is capable of evaluating the merits and risks of an
investment in the Newpark Shares, and he is acquiring the Newpark Shares for
investment for his own account and not with a view to the resale or distribution
thereof in violation of the Securities Act of 1933, as amended (the "Securities
Act"), or any state securities law; provided, however, that the disposition of
the Shareholder's property shall at all times be and remain within his control,
subject to compliance with federal and state securities laws. The Shareholder
acknowledges that the Newpark Shares have not been registered under the
Securities Act or registered or qualified under the laws of any state and
understands that the
-12-
Newpark Shares must be held indefinitely unless they are subsequently registered
under the Securities Act and registered or qualified under the securities laws
of any state, if applicable, or an exemption from such registration or
qualification is available.
(b) The Shareholder acknowledges that he has had the opportunity to ask
questions of and receive answers from representatives of Newpark concerning the
terms and conditions of this Agreement and any information furnished to him by
Newpark pursuant to this Agreement. The Shareholder also acknowledges that he
has been represented by counsel of his own choosing in connection with the
negotiation and execution of this Agreement.
(c) Certificates representing the Newpark Shares shall bear a legend in
substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED, OR REGISTERED OR QUALIFIED UNDER
ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS THE PROPOSED TRANSACTION DOES NOT REQUIRE
REGISTRATION OR QUALIFICATION UNDER APPLICABLE FEDERAL OR STATE SECURITIES
LAWS."
Upon the request of the Shareholder and, if requested by Newpark, upon the
receipt by Newpark of an opinion of the Shareholder's legal counsel to the
effect that the foregoing legend is not required under applicable law, which
opinion shall be substantially similar to opinions rendered by nationally
recognized law firms in similar transactions, Newpark shall remove, or cause its
transfer agent to remove, the foregoing legend from the certificates
representing the Newpark Shares or issue to the Shareholder new certificates
therefor free of any restrictive legend.
(d) Newpark is hereby authorized to notify its transfer agent of the
status of the shares issued pursuant to this Agreement and to take such other
action as shall be reasonable and proper to prevent any violation of the
Securities Act or any state securities law.
3.22 No Material Misstatements or Omissions .
--------------------------------------
No representation or warranty by the Company, Uni-Mat or the
Shareholder in this Agreement, and no document, statement, certificate, exhibit
or schedule furnished or to be furnished to Newpark by the Company, Uni-Mat or
the Shareholder pursuant hereto, or in connection with the transactions
contemplated hereby, contains or will contain any untrue statement of a material
fact or omits or will omit to state a material fact necessary to make the
statements contained herein and therein not misleading.
-13-
4. Representations and Warranties of Newpark and Newco.
---------------------------------------------------
Newpark and Newco hereby jointly and severally represent and
warrant to the Shareholder as follows:
4.1 Organization and Good Standing.
------------------------------
(a) Newpark is a corporation duly organized and in good standing under
the laws of the State of Delaware, has full corporate power and authority to
carry on its business as now conducted by it and is entitled to own or lease and
operate its properties and assets now owned or leased and operated by it.
Newpark is qualified to do business and is in good standing in every
jurisdiction in which the character or location of the assets owned by it or the
nature of the business transacted by it or both require qualification and
failure to be so qualified would have a materially adverse effect on its
business or financial condition.
(b) Newco is a corporation duly organized and in good standing under
the laws of the State of Texas, has been organized for the purpose of merging
with the Company and has conducted no business since its organization.
4.2 Capital Stock.
-------------
(a) The authorized capital stock of Newpark consists of 20,000,000
shares of Common Stock, $.01 par value, of which 10,666,662 shares were issued
and outstanding on March 15, 1996, and 1,000,000 shares of Preferred Stock, $.01
par value, of which no shares are issued and outstanding.
(b) The authorized capital stock of Newco consists of 1,000 shares of
Common Stock, $1.00 par value, of which 1,000 shares are issued and outstanding
and held by Newpark on the date hereof.
4.3 Authority.
---------
Newpark and Newco each has the full corporate power and authority to
execute and deliver the Merger Agreements, to perform the obligations and
covenants set forth therein and to consummate the Merger and the other
transactions contemplated thereby. The execution and delivery of the Merger
Agreements by Newco and the consummation of the transactions contemplated
thereby have been duly authorized by the Board of Directors of Newco and by
Newpark in its capacity as the sole shareholder of Newco. The execution and the
delivery of the Merger Agreements by Newpark and the consummation of the
transactions contemplated thereby have been duly authorized by the Board of
Directors of Newpark. No further corporate action is necessary on the part of
Newpark or Newco to make this Agreement binding upon them in accordance with its
terms. This Agreement has been duly executed and delivered by Newpark and Newco
and
-14-
constitutes the valid and binding agreement of each of them, enforceable against
them in accordance with its terms, and, when the Agreement of Merger has been
duly executed and delivered, it will constitute the valid and binding Agreement
of Newpark and Newco, enforceable against them in accordance with its terms, in
each case subject to applicable bankruptcy, insolvency and other similar laws
affecting the enforceability of creditors' rights generally, general equitable
principles and the discretion of courts in granting equitable remedies.
4.4 No Conflicts or Violations.
--------------------------
Neither the execution and delivery of the Merger Agreements by Newpark
and Newco nor the consummation of the Merger and the other transactions
contemplated thereby will violate or conflict with, constitute a breach of or
default under, result in the loss of any material benefit under or permit the
acceleration of any obligation under: (a) any term or provision of the Articles
of Incorporation or Bylaws of Newpark or Newco; (b) any judgment, decree or
order of any Governmental Entity to which Newpark or Newco is a party or by
which any of them or any of their properties is bound; or (c) any Legal
Requirements applicable to Newpark or Newco. Except for the filing and
recordation of the Agreement of Merger as required by the BCA, no consent,
approval, order or authorization of, or registration, declaration or filing
with, any Governmental Entity is required with respect to Newpark or Newco in
connection with the execution, delivery and performance of the Merger Agreements
and the consummation of the Merger and the other transactions contemplated
thereby.
4.5 Newpark Financial Statements.
----------------------------
Newpark has delivered to the Shareholder copies of Newpark's Annual
Report on Form 10-K for the year ended December 31, 1995, and Newpark's
definitive Proxy Statement, dated May 1, 1995, for its Annual Meeting of
Stockholders held on June 28, 1995. All of said documents are called the
"Newpark Reports" herein. The financial statements contained in the Newpark
Reports (the "Newpark Financial Statements") have been prepared in accordance
with generally accepted accounting principles consistently applied during the
periods indicated, all as more particularly set forth in such financial
statements and the notes thereto. Each of the balance sheets included in the
Newpark Financial Statements presents fairly as of its date the consolidated
financial condition and assets and liabilities of Newpark and its subsidiaries.
Except as and to the extent reflected or reserved against in such balance sheets
(including the notes thereto), Newpark and its subsidiaries did not have, as of
the dates of such balance sheets, any material liabilities or obligations,
absolute or contingent, of a nature customarily reflected in a balance sheet or
the notes thereto prepared in accordance with generally accepted accounting
principles. The consolidated statements of earnings and stockholders' equity
and consolidated statements of changes in financial position included in the
Newpark Financial Statements present fairly the results of operations and
changes in financial position of Newpark and its subsidiaries for the periods
indicated.
-15-
4.6 Absence of Certain Changes.
--------------------------
Since December 31, 1995, there has not been any material adverse
change in the results of operations, financial condition, liquidity, assets,
properties or business of Newpark and its subsidiaries, taken as a whole.
4.7 Brokerage and Finder's Fees.
---------------------------
Neither Newpark nor Newco has incurred any liability to any broker,
finder or agent for any brokerage fees, finder's fees or commissions with
respect to the transactions contemplated by this Agreement.
4.8 No Material Misstatements or Omissions.
--------------------------------------
No representation or warranty by Newpark and Newco in this Agreement,
and no document, statement, certificate, exhibit or schedule furnished or to be
furnished to the Shareholder by Newpark or Newco pursuant hereto, or in
connection with the transactions contemplated hereby, contains or will contain
any untrue statement of a material fact or omits or will omit to state a
material fact necessary to make the statements or facts contained therein not
misleading.
5. Obligations and Covenants of the Pouyer Group.
---------------------------------------------
The Company, Uni-Mat and the Shareholder hereby covenant and
agree as follows:
5.1 Access to Properties and Records.
--------------------------------
The Company, Uni-Mat and the Shareholder shall afford to Newpark and
its "Representatives" (as defined in paragraph 15.8) full and complete access,
throughout the period from the date hereof to the Closing Date, to all of the
properties, assets, documents, books, commitments, contracts and records of the
Company (and, to the extent relevant to the transaction, full and complete
access to the properties, assets, documents, books, commitments, contracts and
records of Uni-Mat and the Shareholder) and shall furnish Newpark with such
additional information as to the business of the Company and the Technology as
Newpark shall from time to time reasonably request, including copies and
extracts of pertinent documents, records and contracts. The Pouyer Group shall
cause the Representatives of the Company to be available to Newpark at all
reasonable times for purposes of facilitating Newpark's review and investigation
of the Company and the Technology. The commitments of the Pouyer Group under
this paragraph 5.1 are made with the understanding that Newpark and its
Representatives shall keep confidential any information (other than information
which is readily ascertainable from public or trade sources or published
information) obtained from the Pouyer Group hereunder. In the event of the
-16-
termination of this Agreement, Newpark and its Representatives shall continue to
keep such information confidential.
5.2 Conduct of Business.
-------------------
Between the date hereof and the Closing Date:
(a) The business of the Company shall be conducted diligently and only
in the ordinary course, and the Company shall not, except as otherwise permitted
by paragraph 3.8(b), sell or dispose of any of its properties or assets or
distribute to the Shareholder any of its properties or assets, whether as a
dividend, redemption of shares or otherwise;
(b) The Company shall use its reasonable efforts to perform all of its
obligations under the Corporate Contracts and, without Newpark's prior written
approval, shall not cancel, amend, modify, renew or extend any of the Corporate
Contracts, waive any rights thereunder or enter into any new contracts,
agreements or commitments;
(c) The Company shall maintain in full force and effect all of the
insurance policies described on Schedule 3.16;
(d) The Company, Uni-Mat and the Shareholder shall take all such
actions as may be necessary or appropriate to preserve and protect the
Intellectual Property Assets of the Company; and
(e) Neither the Company, Uni-Mat nor the Shareholder shall, directly
or indirectly, enter into any license agreements or otherwise grant, sell,
assign or transfer to any person any rights to use the Technology or, except as
otherwise required under the contracts listed on Schedule 3.8(b), any products
or services that are based upon, utilize or otherwise incorporate the
Technology.
5.3 Reasonable Efforts.
------------------
Subject to the other provisions of this Agreement, the Company, Uni-
Mat and the Shareholder shall use their reasonable efforts: (a) to perform their
obligations hereunder; (b) to take, or cause to be taken, all actions necessary,
proper or advisable to obtain all approvals of Governmental Entities and
consents of third parties required to be obtained by or on behalf of the Pouyer
Group to consummate the transactions contemplated by this Agreement; and (c) to
satisfy or cause to be satisfied all of the conditions precedent to their or
Newpark's obligations under this Agreement to the extent that their action or
inaction can control or influence the satisfaction of such conditions.
-17-
5.4 Exclusive Dealing.
-----------------
Unless this Agreement has been terminated in accordance with its
terms, neither the Company, Uni-Mat or the Shareholder, nor any of their
Representatives, shall, directly or indirectly, solicit or encourage inquiries
or proposals from third parties or participate in any negotiations or
discussions or enter into any agreements or understandings with, or furnish any
information to, third parties with respect to the sale or other disposition of
any shares of the capital stock of the Company or any sale, transfer or other
disposition of the business and assets of the Company.
5.5 Corporate Matters.
-----------------
Between the date hereof and the Closing Date, the Company shall not,
without Newpark's prior written approval: (a) amend its Articles of
Incorporation or Bylaws; (b) issue any shares of its capital stock; (c) issue or
create any warrants, obligations, subscriptions, options, convertible securities
or other commitments under which any additional shares of its capital stock of
any class might be directly or indirectly authorized, issued or transferred from
treasury; (d) change its Board of Directors; or (e) enter into any agreement
requiring it to do any of the foregoing prohibited acts.
5.6 Encumbrances and Indebtedness.
-----------------------------
From and after the date hereof and until the Closing Date, the Company
shall not: (a) permit any Lien to attach upon any of its properties or assets,
whether now owned or hereafter acquired; or (b) borrow or agree to borrow any
funds or incur or become subject to any liability or obligation, absolute or
contingent, except liabilities and obligations under the Corporate Contracts and
obligations relating to routine operating expenses incurred in the ordinary
course of business. Prior to the Closing Date, the Company shall satisfy and
pay in full all of its liabilities and obligations, other than liabilities and
obligations under the Corporate Contracts that pertain to and are to be
performed during any period commencing on or after the Closing, and shall obtain
the release of all Liens described on Schedule 3.8(a).
6. Obligations and Covenants of Newpark and Newco.
----------------------------------------------
Newpark and Newco hereby covenant and agree as follows:
6.1 Reasonable Efforts.
------------------
Subject to the other provisions of this Agreement, Newpark and Newco
agree to use their reasonable efforts: (a) to perform their obligations
hereunder; (b) to take, or cause to be taken, all actions necessary, proper or
advisable to obtain all approvals of Governmental Entities and consents of third
parties required to be obtained by or on behalf of Newpark or Newco to
consummate the transactions contemplated by this Agreement; and
-18-
(c) to satisfy or cause to be satisfied all of the conditions precedent to their
obligations or to the obligations of the Pouyer Group under this Agreement, to
the extent that their action or inaction can control or influence the
satisfaction of such conditions.
6.2 Issuance of Stock.
-----------------
Newpark has reserved for issuance, and, as when required by the
provisions of the Merger Agreements, will issue the Newpark Shares into and for
which the shares of capital stock of the Company are to be converted and
exchanged in the Merger, and the Newpark Shares, when so issued, will be validly
issued, fully paid and nonassessable.
6.3 Access to Information.
---------------------
Newpark agrees to make available to the Shareholder: (a) the
opportunity to ask questions of and receiver answers from a responsible officer
of Newpark concerning the terms and conditions of the Plan and the properties,
operations and business of Newpark; and (b) any additional information in
Newpark's possession or which Newpark can produce or acquire without
unreasonable effort or expense which is necessary to verify the accuracy of
Newpark's disclosures under this Agreement and in the Newpark Reports.
Newpark's commitments under this paragraph 6.3 are made with the understanding
that the Shareholder and his Representatives shall keep confidential any
information (other than information which is readily ascertainable from public
or trade sources or published information) obtained from Newpark concerning its
properties, operations and business. Whether or not the Merger is consummated,
the Shareholder and his Representatives shall not trade in securities of Newpark
at any time when they have received from Newpark material information which has
not theretofore been disclosed to the public.
6.4 Listing Application.
-------------------
Newpark shall file an application with the New York Stock Exchange
(the "NYSE") to approve the Newpark Shares for listing, subject to official
notice of issuance. Newpark shall use its reasonable efforts to cause the
Newpark Shares to be approved for listing on the NYSE, subject to official
notice of issuance, prior to the Effective Time.
7. Conditions to Obligations of Newpark, Newco and the Pouyer Group.
----------------------------------------------------------------
The obligations of each party under this Agreement shall be subject to
the satisfaction on or before the Closing Date of each of the following
conditions, except to the extent the parties may waive any of such conditions in
writing:
-19-
7.1 Consents.
--------
All authorizations, approvals, orders and consents of, and
registrations, declarations and filings with, any Governmental Entity required
for consummation of the Merger and the other transactions contemplated by the
Plan shall have been obtained or made (other than filing of the Agreement of
Merger and any other documents required to be filed after the Effective Time).
7.2 Litigation.
----------
On the Closing Date, there shall be no effective injunction, writ or
preliminary restraining order or any order of any nature issued by any court or
governmental agency of competent jurisdiction to the effect that the Merger and
the other transactions contemplated by the Plan may not be consummated, no
proceeding or lawsuit shall have been commenced in any court or by any
governmental agency for the purpose of obtaining any such injunction, writ or
preliminary restraining order, and no written notice shall have been received
from any court or governmental agency indicating an intent to restrain, prevent,
materially delay or restructure the transactions contemplated by the Plan.
7.3 Listing on NYSE.
---------------
The NYSE shall have given the approval referred to in
paragraph 6.4.
7.4 Certain Agreements.
------------------
At the Closing, the parties thereto shall have executed and delivered
the Shareholder Noncompetition Agreement, the Uni-Mat Noncompetition Agreement,
the Registration Rights Agreement and the Manufacturing Agreement.
8. Conditions Precedent to Obligations of Newpark and Newco.
--------------------------------------------------------
The obligations of Newpark and Newco under this Agreement shall be
subject to the satisfaction on or before the Closing Date of each of the
following conditions, except to the extent waived in writing by Newpark:
8.1 Representations, Warranties and Covenants of the Pouyer
-------------------------------------------------------
Group.
-----
All representations and warranties of the Company, Uni-Mat and the
Shareholder contained in or made under or in connection with this Agreement
shall be true and correct in all material respects both as of the date of this
Agreement and as of the Closing Date, except as to changes contemplated or
permitted by this Agreement, with the same force and effect as if such
representations and warranties had been made as of the
-20-
Closing Date, and the Company, Uni-Mat and the Shareholder shall have performed
in all material respects all agreements and covenants required by this Agreement
to be performed by them on or prior to the Closing Date.
8.2 Investigation of the Company.
----------------------------
Newpark shall have made an investigation of the Technology and of the
business, properties (tangible and intangible), contracts, liabilities,
obligations and financial condition of the Company and shall have been satisfied
with the results of such investigation.
8.3 No Adverse Change.
-----------------
There shall have been no changes after the date of the Balance Sheet
in the assets (tangible and intangible), liabilities, financial condition or
affairs of the Company which in their total effect have been materially adverse
to the Company.
8.4 Consents.
--------
There shall have been obtained all consents and approvals of any non-
governmental person required for the consummation of the Merger and the other
transactions contemplated by this Agreement.
8.5 License Agreement.
-----------------
Prior to the Closing, the Shareholder and the Company shall have
executed and delivered the License Agreement, and, as of the Closing, the
License Agreement shall be in full force and effect.
9. Conditions Precedent to Obligations of the Pouyer Group.
-------------------------------------------------------
The obligations of the Pouyer Group under this Agreement shall be
subject to the satisfaction on or before the Closing Date of each of the
following conditions, except to the extent waived in writing by the Shareholder:
9.1 Representations, Warranties and Covenants of
--------------------------------------------
Newpark and Newco.
-----------------
All representations and warranties of Newpark and Newco contained in
or made under or in connection with this Agreement shall be true and correct in
all material respects both as of the date of this Agreement and as of the
Closing Date, except as to changes contemplated or permitted by this Agreement,
with the same force and effect as if such representations and warranties had
been made as of the Closing Date, and Newpark
-21-
and Newco shall have performed in all material respects all agreements and
covenants required by this Agreement to be performed by them on or prior to the
Closing Date.
9.2 No Adverse Change.
-----------------
There shall have been no changes after December 31, 1995 in the
results of operations, assets, liabilities, financial condition or affairs of
Newpark and its subsidiaries which is their total effect have been materially
adverse to Newpark and its subsidiaries, taken as a whole.
10. Closing.
-------
10.1 Time and Place.
--------------
The consummation of the transactions contemplated by this Agreement is
herein referred to as the "Closing", and the date on which the Closing occurs is
herein referred to as the "Closing Date". The Closing shall take place at 10:00
a.m., on April 12, 1996, at the executive offices of Newpark, 0000 Xxxxx
Xxxxxxxx, Xxxxx 0000, Xxxxxxxx, Louisiana, or on such other date and at such
other place as Newpark and the Shareholder may determine by mutual agreement.
If the conditions specified in this Agreement have not been fulfilled by that
date, either Newpark or the Shareholder may postpone the Closing for a
reasonably necessary period or periods not exceeding an aggregate of 30 days by
written notice to the other parties. Regardless of the actual time of the
Closing, the Closing shall be effective for all purposes as of the opening of
business on the Closing Date. Unless the context indicates otherwise, all
references herein to the "Closing Date" and the "Closing" shall mean the date on
which and the time at which the Closing is effective.
10.2 Delivery of Documents by Newpark and Newco.
------------------------------------------
At the Closing, Newpark and Newco shall deliver to the Shareholder (or
to Uni-Mat or the Company, as appropriate) copies of the following documents,
instruments and other items, each dated, unless otherwise indicated, as of the
Closing Date:
(a) The certificates representing the Newpark Shares and the
cash amount referred to in paragraph 1.4(b);
(b) The cash amount referred to in paragraph 2.3;
(c) A certificate, dated as of a recent date, from the
Delaware Secretary of State, certifying that Newpark is in good standing in
Delaware, and certificates, dated as of a recent date, from the Texas Secretary
of State and Comptroller of Public Accounts, certifying that Newco is in good
standing in Texas ;
-22-
(d) A certificate, executed by an executive officer of Newpark and
Newco, stating that, as of the Closing: (i) except as specifically disclosed in
writing in such certificate, all of the representations and warranties of
Newpark and Newco contained in this Agreement are true and accurate; and (ii)
Newpark and Newco have duly performed all obligations and covenants to be
performed by them hereunder;
(e) A copy of the resolutions of the Board of Directors of Newpark
approving the execution, delivery and performance of the Merger Agreements,
certified by the Secretary of Newpark, and a copy of the resolutions of the
Board of Directors and shareholder of Newco approving the execution, delivery
and performance of the Merger Agreements, certified by the Secretary of Newco;
and
(f) A favorable opinion of Xxxxx, Xxxxx & Xxxxxx, counsel for Newpark,
regarding the matters set forth on Schedule 10.2(f), subject to customary
conditions and limitations.
10.3 Delivery of Documents by the Pouyer Group.
-----------------------------------------
At the Closing, the Pouyer Group shall deliver to Newpark and Newco
copies of the following documents, instruments and other items, each dated,
unless otherwise indicated, as of the Closing Date.
(a) The certificates representing the Company Shares;
(b) Certificates, dated as of a recent date, from the Texas Secretary
of State and Comptroller of Public Accounts, certifying that the Company and
Uni-Mat are in good standing in Texas;
(c) A certificate, executed by the Shareholder and by an executive
officer of the Company and Uni-Mat, stating that, as of the Closing: (i) except
as specifically disclosed in writing in such certificate, all of the
representations and warranties of the Company, Uni-Mat and the Shareholder
contained in this Agreement are true and accurate; and (ii) the Company, Uni-Mat
and the Shareholder have duly performed all obligations and covenants to be
performed by them hereunder;
(d) A copy of the resolutions of the Board of Directors and
shareholders of the Company approving the execution, delivery and performance of
the Merger Agreements, certified by the Secretary of the Company, and a copy of
the resolutions of the Board of Directors of Uni-Mat approving the execution,
delivery and performance of this Agreement, certified by the Secretary of Uni-
Mat;
(e) A favorable opinion of Porto, Truehart, XxXxxx & Xxxxx, L.L.C.,
general counsel for the Pouyer Group, regarding the matters set forth on
Schedule 10.3(e), subject to customary conditions and limitations.
-23-
10.4 Other Documents.
---------------
In addition to the documents and other items specified in paragraph
10.2 and paragraph 10.3, at the Closing, the parties shall execute and deliver,
or cause the appropriate parties to execute and deliver, the following
documents, each dated as of the Closing Date:
(a) The License Agreement, duly executed by the Company and
the Shareholder;
(b) The Shareholder Noncompetition Agreement, duly executed
by Newpark and the Shareholder;
(c) The Uni-Mat Noncompetition Agreement, duly executed by
Newpark and Uni-Mat;
(d) The Registration Rights Agreement, duly executed by
Newpark and the Shareholder;
(e) The Manufacturing Agreement, duly executed by Newpark,
Uni-Mat and the Shareholder; and
(f) Such other documents and instruments as may be
reasonably necessary to carry out the respective obligations of the parties
under this Agreement.
11. Additional Agreements of the Parties.
------------------------------------
The following provisions shall apply, and the following actions
shall be taken, subsequent to the Closing:
11.1 Further Documentation or Action.
-------------------------------
Each of the parties agrees to execute and deliver any further
instruments and take such other actions as may be necessary or convenient to
carry out the purposes of this Agreement.
11.2 Cooperation.
-----------
After the Closing, upon request, each party shall, subject to
applicable Legal Requirements, contractual restrictions or the attorney-client
privilege, cooperate with the other in furnishing information, testimony and
other assistance in connection with (a) any actions, audits, proceedings,
arrangements or disputes involving any of the parties hereto or their Affiliates
(other than in connection with disputes between the
-24-
parties hereto) and based upon contracts, arrangements or acts of the Company,
Uni-Mat or the Shareholder which were in effect or occurred prior to the Closing
and which relate to the business or operations of the Company, and (b) actions,
claims or proceedings that may be brought by or against Newpark or any of its
Affiliates with respect to the Technology or any of the Intellectual Property
Assets.
11.3 Access to Records.
-----------------
The Shareholder shall be entitled, after the Closing, upon reasonable
notice and during the regular business hours of Newpark, to have access to and
to make copies of the business records of the Company which relate to periods
prior to the Closing. Newpark shall retain such business records for a period
of five years following the Closing, after which time Newpark may destroy or
otherwise dispose of such business records without the Shareholder's consent.
11.4 Tax Matters.
-----------
(a) Whenever any taxing authority asserts a claim, makes an assessment
or otherwise disputes the amount of Taxes payable by the Company for any period
prior to the Closing Date, Newpark shall promptly inform the Shareholder. The
provisions of paragraph 13 shall apply to the defense of any such claim,
assessment or dispute. Any additional Taxes payable as a result of any such
claim, assessment or dispute shall be borne and paid by the Shareholder, and any
refunds or credits of Taxes attributable to any taxable period ending on or
before the Closing Date shall be for the account of the Shareholder.
(b) The Shareholder shall be responsible for the preparation and
filing of all Tax Returns for all taxable periods that end or ended on or before
the Closing Date and the payment of all Taxes due with respect thereto. Newpark
shall make available to the Shareholder, without charge, the services of its
personnel to assist the Shareholder in the preparation of such Tax Returns. The
Shareholder shall provide Newpark with copies of any such Tax Returns prior to
the filing thereof for its review and approval, which shall not be unreasonably
withheld.
(c) Newpark and the Shareholder shall cooperate with each other in a
timely manner in the preparation and filing of any Tax Returns, payment of any
Taxes in accordance with this Agreement and the conduct of any audit or other
proceeding. Each party shall execute and deliver such powers of attorney and
make available such other documents as are necessary to carry out the intent of
this paragraph 11.4. Each party agrees to notify the other party of any audit
adjustments that do not result in Tax liability, but can be reasonably expected
to affect Tax Returns of the other party.
-25-
11.5 Confidential Information.
------------------------
Subject to the requirements of any applicable law, order or decree
(including any requirements of federal or state securities laws and the NYSE),
at all times following the Closing, except with Newpark's or the Shareholder's
prior written consent, as the case may be:
(a) The Shareholder shall, and shall cause its Affiliates and its and
their Representatives to, keep in confidence and not use or disclose to any
other person any confidential or proprietary information, no matter when or how
acquired, concerning the operations or business of the Company, including,
without limitation, names of customers, terms of contracts, technical know-how
and processes, product formulas, methods of operation, marketing methods,
pricing and other policies; and
(b) Newpark and the Shareholder shall not, and shall use reasonable
efforts to cause their respective Affiliates and Representatives not to, issue
any public announcements or statements with respect to, or otherwise disclose to
any person other than such party's Representatives or lenders, the terms of, or
any other information pertaining to, this Agreement or the transactions
contemplated hereby;
provided, however, the parties' obligations under this paragraph shall not apply
to information which is ascertainable from public or trade sources or published
information or which is or becomes generally available to the public other than
as a result of a disclosure by a party or a party's Representatives in violation
of this Agreement; and provided further, nothing contained herein shall preclude
the Shareholder or Uni-Mat from utilizing the Technology in connection with (i)
the performance of their obligations under the Manufacturing Agreement or the
contracts listed on Schedule 3.8(b), or (ii) the use, manufacture, sale or lease
of products or services pursuant to the Excluded Rights.
11.6 Manufacturing Rights; Proprietary Rights of Newpark.
---------------------------------------------------
(a) The parties contemplate that the Shareholder and Uni-Mat shall
have a right of first refusal, on an order by order basis, to manufacture any
prefabricated mats or other products sold, leased or used by Newpark and its
Affiliates following the Closing that are based upon, utilize or otherwise
incorporate the Technology, subject to and in accordance with the terms of the
Manufacturing Agreement, and Newpark acknowledges and agrees that the
Intellectual Property Assets of the Company as of the Closing will not include
the right to manufacture prefabricated mats or other products that are based
upon, utilize or otherwise incorporate the Technology; provided, however, if,
for any reason, the Shareholder and Uni-Mat elect not to manufacture the
prefabricated mats or other products called for by an order submitted by Newpark
or if the Shareholder and Uni-Mat otherwise are unable to deliver in a timely
manner such prefabricated mats and other products in such quantities and of such
quality as may be required from time to time by Newpark, then, as and to the
extent provided in the Manufacturing Agreement, Newpark
-26-
shall have the right to manufacture, and to contract for the manufacture by
others of, prefabricated mats and other products that are based upon, utilize or
otherwise incorporate the Technology, for its own account and the account of its
customers.
(b) The Shareholder and Uni-Mat acknowledge and agree that: (i)
Newpark currently is engaged in the business of manufacturing, providing, using,
selling and leasing prefabricated mats for the construction of temporary roads
and worksites for the site preparation industry and otherwise manufacturing,
providing, using, selling and leasing temporary roads and worksites and
materials, supplies, products and services related thereto and used in
connection therewith; and (ii) Newpark currently manufactures prefabricated mats
and other materials, supplies and products used in such business in accordance
with proprietary rights owned or licensed by Newpark. Nothing contained herein
shall in any way limit the right of Newpark to manufacture, provide, use, sell
or lease products or services which are based upon, utilize or otherwise
incorporate proprietary rights (other than the Technology) now or hereafter
owned or licensed by Newpark, or in which Newpark now or hereafter has any
interest, regardless of whether such products or services are competitive with,
or substantially equivalent to, product or services that are based upon, utilize
or otherwise incorporate the Technology, and nothing contained herein shall be
deemed to grant to the Shareholder, Uni-Mat or any of their Affiliates any
interest in any such proprietary rights of Newpark or any right to use such
proprietary rights.
11.7 Restrictions on Transfer of Newpark Shares.
------------------------------------------
(a) The Shareholder shall not be permitted to sell or otherwise
transfer or dispose of any of the Newpark Shares or any interest therein (unless
the transfer or disposition has been registered under the Securities Act)
without first having complied with each of the following conditions:
(i) Newpark shall have received written notice of the proposed
transfer, setting forth the circumstances and details thereof; and
(ii) Newpark shall have received a written opinion from a law
firm satisfactory to Newpark specifying the nature and circumstances of the
proposed transfer and indicating that the proposed transfer will not be in
violation of any of the provisions of the Securities Act and the rules and
regulations promulgated thereunder.
(b) Commencing upon the second anniversary of the Closing, sales of
Newpark Shares made in compliance with Rule 144 may be made without Newpark's
receiving the opinion of counsel specified in paragraph 11.7(a), provided the
seller furnishes to Newpark a copy of the Form 144 filed with the Securities and
Exchange Commission and such other information as Newpark may reasonably
request.
-27-
11.8 Customer Inquiries.
------------------
Following the Closing, the Shareholder and Uni-Mat shall refer to
Newpark any inquiries received by them from current or prospective customers
regarding the purchase or use of prefabricated mats, other than any such
inquiries relating to orders that may be filled pursuant to the Excluded Rights.
12. Survival of Representations.
---------------------------
All statements contained in any schedule, statement, certificate or
other instrument delivered pursuant hereto by or on behalf of any party shall be
deemed to be representations and warranties made pursuant to this Agreement by
such party. All representations, warranties and agreements made by the parties
shall survive the Closing and any investigation made by or on behalf of any
party hereto.
13. Indemnification.
---------------
13.1 Uni-Mat and the Shareholder.
---------------------------
Subject to the further provisions of this paragraph 13, Uni-Mat and
the Shareholder shall, jointly and severally, indemnify and hold harmless
Newpark against any and all losses, liabilities, claims, damages, costs and
expenses, including reasonable attorneys' fees, court costs, consultant fees and
expert fees (collectively the "Damages"), insofar as such Damages (or actions in
respect thereof) are based upon or arise out of (a) any breach of any warranty,
representation, covenant or agreement made herein by the Company, Uni-Mat or the
Shareholder, or (b) any obligations or liabilities of the Company which are
based upon events which occured or circumstances which existed on or before the
Closing Date (other than obligations and liabilities of the Company under the
Corporate Contracts, but only to the extent such obligations and liabilities
pertain to and are to be performed during any period commencing after the
Closing), whether or not the existence of such liabilities or obligations (or
the facts, circumstances or events underlying such liabilities or obligations)
was disclosed pursuant hereto or constitutes a breach of any representation or
warranty hereunder, including, without limitation, all obligations and
liabilities attributable to the following: (i) all Taxes payable with respect to
periods ending on or before the Closing; (ii) the performance, non-performance
or breach by the Company prior to the Closing of any of the Corporate Contracts,
or any obligation or commitment arising or accruing thereunder prior to the
Closing; (iii) the violation by the Company of any Legal Requirement at any time
prior to the Closing; and (iv) obligations now existing or which hereafter may
exist by reason of, or in connection with, any alleged misfeasance or
malfeasance by the Company in the conduct of its business at any time prior to
the Closing. The indemnification obligations provided for in this paragraph
shall be the joint and several responsibility of Uni-Mat and the Shareholder,
and they shall not have any right to recover any portion of their liability from
the Company, whether by right of indemnification, contribution or otherwise.
-28-
13.2 By Newpark.
----------
Subject to the further provisions of this paragraph 13, Newpark shall
indemnify and hold harmless the Shareholder against all Damages insofar as such
Damages (or actions in respect thereof) are based upon or arise out of any
breach of any warranty, representation, covenant or agreement made herein by
Newpark or Newco.
13.3 Indemnification Procedures.
--------------------------
(a) Notice of Asserted Liability. Promptly after receipt by an
----------------------------
indemnified party of notice of any demand, claim or circumstances which gives
rise, or, with the lapse of time, would give rise to a claim or the commencement
(or threatened commencement) of any action, proceeding or investigation that may
result in Damages (an "Asserted Liability"), the party receiving such notice
(the "Indemnitee") shall give notice thereof to the indemnifying party or
parties (the "Indemnitor"). The notice shall describe the Asserted Liability in
reasonable detail and, to the extent practicable, shall indicate the amount
(estimated, if necessary) of the Damages that have been or may be suffered by
Indemnitee. The failure so to notify Indemnitor shall not relieve it of any
liability that it may have to Indemnitee except the extent that Indemnitor
demonstrates that the defense of such action is materially prejudiced thereby.
(b) Opportunity to Defend. Indemnitor may elect to compromise or
---------------------
defend, at its own expense and by its own counsel (subject to the reasonable
approval of Indemnitee), any Asserted Liability; provided, however, that
Indemnitor may not compromise or settle any Asserted Liability without the
consent of Indemnitee unless such compromise or settlement requires no more than
a monetary payment for which Indemnitee and any other indemnifiable parties
hereunder are fully indemnified or involves other matters not binding upon
Indemnitee and such other indemnifiable parties. If Indemnitor elects to
compromise or defend such Asserted Liability, it shall within 30 days (or
sooner, if the nature of the Asserted Liability so requires) notify Indemnitee
of its intent to do so with counsel reasonably satisfactory to Indemnitee, and
Indemnitee shall cooperate in the compromise of, or defense against, such
Asserted Liability. If Indemnitor so elects, Indemnitor shall be obligated to
defend such Asserted Liability and pay all Damages incurred in such defense
until either (a) Indemnitor and Indemnitee agree otherwise, or (b) a court of
competent jurisdiction determines that Indemnitor does not have an obligation to
indemnify Indemnitee. If Indemnitor elects not to compromise or defend any
Asserted Liability, fails to notify Indemnitee of its election as provided
herein or contests its obligation to indemnify Indemnitee, Indemnitee shall have
the absolute right to pay, compromise or defend such Asserted Liability in
respect of any Asserted Liability for which Indemnitor may have an
indemnification obligation hereunder, without prejudice to any right Indemnitee
may have hereunder. If Indemnitee elects to pay, compromise or defend such
Asserted Liability pursuant to the foregoing provisions, all Damages incurred by
Indemnitee in connection therewith shall be paid by Indemnitor as incurred by
Indemnitee unless Indemnitor contests its obligation to indemnify Indemnitee, in
which case Indemnitor shall pay or reimburse
-29-
Indemnitee for such Damages if and when it is finally determined that Indemnitee
is entitled to indemnification from Indemnitor hereunder. The party which
elects to compromise or defend any Asserted Liability pursuant to the foregoing
provisions shall control the matter subject to such provisions. In any event,
once Indemnitor elects to defend any Asserted Liability, Indemnitee may
participate, at its own expense from that point in time, in the defense of any
Asserted Liability. If any party chooses to defend or participate in the
defense of any Asserted Liability, it shall have the right to receive from the
other parties, subject to any restriction of applicable law or that may be
necessary to preserve the privilege of attorney-client communications, any
books, records or other documents within such other parties' control that are
necessary or appropriate for such defense.
13.4 Affiliates.
----------
For purposes of this Agreement, any Damages suffered by an Affiliate
of Newpark or by an Affiliate of the Shareholder shall be deemed to have been
suffered by Newpark or by the Shareholder, as the case may be.
14. Termination.
-----------
Subject to the provisions of paragraph 10 relating to delay of the
Closing Date, either Newpark and Newco, on the one hand, or the Pouyer Group, on
the other hand, may forthwith terminate this Agreement on the Closing Date in
accordance with the following provisions:
14.1 Without liability to any of the parties if a bona fide
action or proceeding shall be pending against any party on the Closing Date
wherein an unfavorable judgment, decree or order would prevent or make unlawful
the carrying out of the transactions contemplated by this Agreement; provided,
however, if such action or proceeding results from the negligent act or
omission, or the intentional malfeasance, of a party, then the provisions of
paragraph 14.2 shall control; and
14.2 Without prejudice to the other rights or remedies which it
may have, if default shall be made by the other party hereto in the observance
or due and timely performance of any of its covenants and agreements herein
contained, or if there shall have been any material breach by the other party of
any of the warranties and representations of such party contained herein or in
any document or certificate delivered pursuant hereto, or if any condition
precedent to its obligations which is in the control of the other party hereto
has not been satisfied or waived.
-30-
15. General Provisions.
------------------
15.1 Notices.
-------
All notices, requests, demands, waivers, consents and other
communications hereunder shall be in writing, shall be delivered either in
person, by telegraphic, facsimile or other electronic means, by overnight air
courier or by mail, and shall be deemed to have been duly given and to have
become effective (a) upon receipt if delivered in person or by telegraphic,
facsimile or other electronic means calculated to arrive on any business day
prior to 5:00 p.m., local time, or on the next succeeding business day if
delivered on a non-business day or after 5:00 p.m., local time, (b) one business
day after having been delivered to an air courier for overnight delivery, or (c)
three business days after having been deposited in the mails as certified or
registered mail, return receipt requested, all fees prepaid, directed to the
parties or their assignees at the following addresses (or at such other address
as shall be given in writing by a party hereto):
If to Newpark or Newco, addressed to:
Newpark Resources, Inc.
0000 Xxxxxxxx Xxxxxxxxx
Xxxxx 0000
Xxxxxxxx, Xxxxxxxxx 00000
Facsimile: (000) 000-0000
Attn: Xxxxx X. Xxxx
With a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxx, Xxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxxxxxx, 0xx Xxxxx
Xxxxxxx Xxxxx, XX 00000-0000
Facsimile: (000) 000-0000
If to the Pouyer Group:
Uni-Mat International, Inc.
000 Xxxxxx Xxxxxx
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
-31-
With a copy to:
Xxxx Xxxxxxxx, Esq.
Porto, Truehart, McStay & Xxxxx, L.L.C.
0000 Xxxxxxxxxx
Xxxxx 000
Xxxxxxx, Xxxxx 00000
Facsimile: (000) 000-0000
15.2 Amendment and Waiver.
--------------------
The parties hereto may by mutual agreement in writing signed by each
party amend this Agreement in any respect. In addition, any party hereto may in
writing: (a) extend the time for the performance of any of the acts or
obligations of the other party; (b) waive any inaccuracies in the
representations or warranties of the other party contained in this Agreement or
in any document or certificate delivered pursuant hereto; (c) waive compliance
or performance by the other party with any of the covenants, agreements or
obligations of such party contained in this Agreement; and (d) waive the
satisfaction of any condition that is precedent to the performance by the party
so waiving of any of its obligations under this Agreement. Any agreement on the
part of a party hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party. A waiver
by one party of the performance of any covenant, agreement, obligation,
condition, representation or warranty shall not be construed as a waiver of any
other covenant, agreement, obligation, condition, representation or warranty. A
waiver by any party of the performance of any act shall not constitute a waiver
of the performance of any other act or an identical act required to be performed
at a later date.
15.3 Assignment; Parties Bound and Benefitted.
----------------------------------------
No party may assign any of its rights or delegate any of its duties
under this Agreement without the prior written consent of the other party
hereto. Except as otherwise provided herein, this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their permitted
successors and assigns. Except as otherwise specifically provided herein, this
Agreement does not create, and shall not be construed as creating, any rights
enforceable by any person not a party to this Agreement.
15.4 Severability.
------------
The provisions of this Agreement are severable, and if any one or more
provisions may be determined to be judicially unenforceable, in whole or in
part, the remaining provisions, and any partially unenforceable provisions to
the extent enforceable, shall nevertheless be binding and enforceable.
-32-
15.5 Entire Understanding.
--------------------
This Agreement and the other documents and instruments specifically
provided for in this Agreement contain the entire understanding between the
parties concerning the subject matter of this Agreement and such other documents
and instruments and supersede all prior understandings and agreements, whether
oral or written, between them representing the subject matter hereof and
thereof. There are no representations, agreements, arrangements or
understandings, oral or written, between or among the parties hereto relating to
the subject matter of this Agreement and such other documents and instruments
which are not fully expressed herein or therein.
15.6 Expenses.
--------
Each party shall bear and pay its own costs and expenses relating to
the transactions contemplated by, or the performance of or compliance with any
condition or covenant set forth in, this Agreement.
15.7 Remedies Not Exclusive.
----------------------
Except as specifically provided for elsewhere in this Agreement, no
remedy conferred by any of the specific provisions of this Agreement is intended
to be exclusive of any other remedy, and each and every remedy shall be
cumulative and shall be in addition to every other remedy given hereunder or now
or hereafter existing at law or in equity or by statute or otherwise. The
election of any one or more remedies by a party shall not, except as otherwise
expressly provided for herein, constitute a waiver of the right to pursue other
available remedies.
15.8 Definitions.
-----------
As used in this Agreement, the terms set forth below shall
have the following meanings:
"Affiliate" of a specified person means any person that directly, or
indirectly through one or more intermediaries, controls, is controlled by
or is under common control with the person specified and, in the case of a
natural person, includes the spouse, siblings, ancestors and lineal
descendants of such person and the spouses of the siblings, ancestors and
lineal descendants of such person. The term "control" means the
possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person.
"Business" means the business of manufacturing, providing, using,
selling or leasing prefabricated mats for the construction of temporary
roads or worksites for the site preparation industry or otherwise
manufacturing, providing, using, selling or
-33-
leasing temporary roads or worksites or any materials, supplies, products
or services related thereto or used in connection therewith.
"Environmental Legal Requirements" means all Legal Requirements
relating to the use, handling, treatment, storage, transportation,
disposal, emission, discharge or release of Hazardous Materials or
otherwise relating to the protection of the environment or industrial
hygiene (including, without limitation, ambient air, surface water, ground
water, land surface or subsurface strata).
"Governmental Entity" means any court, governmental department,
commission, council, board, bureau, agency or other judicial,
administrative, regulatory, legislative or other instrumentality of the
United States of America or any foreign country, or any state, county,
municipality or local governmental body or political subdivision of or
within the United States of America or any foreign country.
"Hazardous Materials" means any substances (including, without
limitation, any asbestos, formaldehyde, radioactive substances,
hydrocarbons, polychlorinated biphenyls, industrial solvents, flammables,
explosives and any other hazardous substances, solid wastes or toxic
materials) that are defined as hazardous or toxic substances under Legal
Requirements relating to the protection of the environment or industrial
hygiene.
"Intellectual Property Assets" means any and all trademarks, trade
names, service marks, copyrights, patents, patentable inventions and
discoveries and Trade Secrets, and applications or registrations relating
to any of the foregoing, owned, used or licensed by the Company as licensee
or licensor. Unless the context indicates otherwise, references herein to
the Intellectual Property Assets mean the Intellectual Property Assets
owned, used or licensed by the Company on the date hereof and the
Intellectual Property Assets required to be owned, used or licensed by the
Company on the Closing Date.
"Legal Requirements" means (a) any and all laws, statutes, codes,
rules, regulations, ordinances, judgments, orders, writs, decrees,
requirements or determinations of any Governmental Entity, (b) to the
extent not covered by clause (a) immediately above, any and all
requirements of permits, licenses, certificates, authorizations,
concessions, franchises or other approvals granted by any Governmental
Entity, and (c) any and all duties arising under common law.
"Liens" means any liens, encumbrances, covenants, conditions,
restrictions, easements, encroachments, rights of way, charges or other
rights, claims or interests of any third party whatsoever.
-34-
"Person" or "person" means an individual, a corporation, a
partnership, a limited liability company, an association, a trust or any
other entity or organization, including, without limitation, any
Governmental Entity.
"Representatives" of a party means the respective directors, officers,
employees, representatives, consultants and advisors of the party and its
Affiliates.
"Taxes" means any income, gross receipts, ad valorem, premium, excise,
value-added, sales, use, transfer, franchise, license, severance, stamp,
occupation, service, lease, withholding, employment, payroll, premium,
property or windfall profits tax, alterative or add-on-minimum tax or other
tax, fee or assessment, together with any interest and any penalty,
addition to tax or additional amount imposed by any Governmental Entity
responsible for the imposition of any such tax.
"Tax Return" means any return, report, statement, information
statement and the like required to be filed with any Governmental Entity
with respect to Taxes.
"Technology" means all patents, copyrights, patentable inventions and
discoveries, Trade Secrets and applications and registrations relating to
any of the foregoing, and all similar intellectual property rights, owned
by the Company, Uni-Mat or the Shareholder or in which the Company, Uni-Mat
or the Shareholder has any interest as of the Closing Date, or in which the
Company, Uni-Mat or the Shareholder may have any interest in the future
(including any enhancements of or improvements to the Technology made by
any of them) which relate to or are used or useful in connection with the
Business.
"To the best knowledge" and similar phrases referring to the knowledge
of a party mean the actual knowledge, or the knowledge that a person would
have after reasonable inquiry, of such party or, in the case of a
corporation or other legal entity, of such party's executive officers.
"Trade Secrets" means all know-how, trade secrets, confidential
information, customer lists, software, technical information, data, process
technology, plans, drawings and blueprints owned, used or licensed by the
Company as licensee or licensor.
15.9 Tax Effect.
----------
Newpark has not made and is not making any representations to the
Pouyer Group concerning any of the tax effects of the transactions provided for
in the Merger Agreements. Newpark shall not be liable for or in any way
responsible to the Company, Uni-Mat or the Shareholder because of any tax effect
resulting from the transactions provided for in the Merger Agreements.
-35-
15.10 Captions.
--------
The captions appearing at the beginning of the various paragraphs of
this Agreement are for convenience of reference only and shall not be given any
effect whatsoever in the construction or interpretation of this Agreement.
15.11 Attorneys' Fees.
---------------
In the event that any proceeding is brought in connection with this
Agreement, or any document, agreement, instrument or certificate delivered under
or pursuant to this Agreement, the prevailing party in such proceeding shall be
entitled to recover from the other party all costs, expenses and reasonable
attorneys' fees incidental to any such proceeding.
15.12 Choice of Law.
-------------
This Agreement shall be construed, interpreted and enforced in
accordance with the internal laws of the State of Texas without reference to
choice of law rules.
15.13 Number and Gender.
-----------------
Terms used herein in any number or gender include other
numbers or genders, as the context may require.
-36-
15.14 Counterparts.
------------
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
Newpark Resources, Inc. X. Xxxxxx Interests, Inc.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- ----------------------
Name: Xxxxx X. Xxxx Name: Xxxxxx X. Xxxxxx
Title:President Title: President
JPI Acquisition Corp. Uni-Mat International, Inc.
By: /s/ Xxxxx X. Xxxx By: /s/ Xxxxxx X. Xxxxxx
-------------------- -----------------------
Name: Xxxxx X. Xxxx Name: Xxxxxx X. Xxxxxx
Title:President Title:President
The Shareholder:
/s/ Xxxxxx X. Xxxxxx
----------------------------
Xxxxxx X. Xxxxxx, individually
-37-
FIRST AMENDMENT TO AGREEMENT
AND PLAN OF REORGANIZATION
THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF REORGANIZATION (the
"Amendment") is made and entered into as of the 17th day of April, 1996, by and
among Newpark Resources, Inc., a Delaware corporation ("Newpark"), JPI
Acquisition Corp., a Texas corporation and a wholly-owned subsidiary of Newpark
("Newco"), X. Xxxxxx Interests, Inc., a Texas corporation (the "Company"), Uni-
Mat International, Inc., a Texas corporation ("Uni-Mat"), and Xxxxxx X. Xxxxxx,
an individual ("Shareholder"), with reference to the following facts:
A. Newpark, Newco, the Company, Uni-Mat and the Shareholder have
entered into that certain Agreement and Plan of Reorganization, dated April 8,
1996, as amended by the letter agreement dated April 8, 1996, providing for the
merger of the Company with and into Newco (the "Original Agreement").
B. The parties now desire to amend the Original Agreement in certain
respects.
C. Capitalized terms used herein, unless otherwise defined, have the
meanings attributed to them in the Original Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and agreements set forth herein, the parties agree as follows:
1. Schedule 3.5, Schedule 3.8(b), Schedule 3.9(a), Schedule 3.9(b),
Schedule 3.9(c) and Schedule 3.10, in the form attached to the Original
Agreement, are superseded and replaced by Schedule 3.5, Schedule 3.8(b),
Schedule 3.9(a), Schedule 3.9(b), Schedule 3.9(c) and Schedule 3.10 to this
Amendment.
2. The last sentence of paragraph 3.8(b) of the Original Agreement is
hereby modified so that it shall hereafter read as follows:
"Prior to the Closing, the Company may transfer to the Shareholder the
rights of the Company, if any, under the contracts described on
Schedule 3.8(b) and the accounts receivable and any other assets of
the Company, other than the assets described in the first sentence of
this paragraph."
3. Paragraph 3.9(a) of the Original Agreement is hereby modified so that
it shall hereafter read as follows:
"Except for the Excluded Rights (the ownership of which shall be
retained by the Shareholder and Uni-Mat) and subject to the provisions
of paragraph 11.6 and the rights of the parties to the agreements
listed on Schedule 3.8(b) and Schedule 3.9(a) (other than the License
Agreement Amendment (the "Uni-Mat License Agreement"), dated December
15, 1990, between Uni-Mat and the Shareholder), at the Closing, the
Intellectual Property Assets of the Company shall include: (i) the
absolute and exclusive right to practice the Technology in connection
with the use, sale and lease of any and all products and services in
the United States, including, without limitation, prefabricated mats
for the site preparation industry; (ii) the exclusive right to use all
"Trade Secrets" (as defined in paragraph 15.8), trademarks, trade
names, service marks and other intellectual property rights owned by
the Company, Uni-Mat or the Shareholder, as and to the extent set
forth in the License Agreement; and (iii) all right, title and
interest of the Pouyer Group under any agreements (other than the
agreements listed on Schedule 3.8(b)) pursuant to which the Company,
Uni-Mat or the Shareholder has agreed to sell to third parties
prefabricated mats or other products incorporating the Technology or
has licensed third parties to use the Technology in the United States.
Schedule 3.9(a) sets forth a complete and accurate list of all
trademarks, trade names and service marks, whether registered or
unregistered, owned or used by the Company, Uni-Mat or the Shareholder
in connection with the use, sale or lease of prefabricated mats in the
United States and a complete and accurate list and summary description
of all contracts or agreements relating to the Intellectual Property
Assets to which the Company, Uni-Mat or the Shareholder is a party or
is bound, whether as licensor or licensee or as a supplier of products
and services. Except as set forth on Schedule 3.9(a), neither the
Shareholder nor any of his Affiliates have entered into any license
agreements or otherwise granted to any person any rights to use the
Technology or to purchase products or services that are based upon,
utilize or otherwise incorporate the Technology."
-2-
4. The first sentence of paragraph 3.9(b) of the Original Agreement is
hereby modified so that it shall hereafter read as follows:
"Except as disclosed on Schedule 3.9(a) or Schedule 3.9(b), the
Company owns all right, title and interest in and to the Intellectual
Property Assets, neither the Company, Uni-Mat nor the Shareholder has
assigned, transferred or licensed, or purported to assign, transfer or
license, to any person any of the Intellectual Property Assets, or any
registrations therefor or any rights included therein, and the Company
is not obligated to pay any royalties or other fees to any other
person with respect to any of the Intellectual Property Assets."
5. The fourth sentence of paragraph 3.9(c) of the Original Agreement is
hereby modified so that it shall hereafter read as follows:
"Except as set forth on Exhibit 3.9(c), all of the issued Patents are
in compliance with formal legal requirements (including payment of
filing, examination and maintenance fees and proofs of working or
use), are valid and enforceable and are not subject to any unpaid
maintenance fees or taxes."
6. The sixth sentence of paragraph 3.9(c) of the Original Agreement is
hereby modified so that it shall hereafter read as follows:
"To the best knowledge of the Pouyer Group, there is no potentially
interfering patent or patent application of any third party."
7. In addition to the representations and warranties of the Pouyer Group
set forth in the Original Agreement, the Company, Uni-Mat and the Shareholder
hereby jointly and severally represent and warrant to Newpark and Newco as
follows:
(a) Schedule 3.8(b) sets forth a complete and accurate summary of the
terms upon which each of the agreements listed therein shall terminate.
Following the termination of each such agreement, no party thereto shall have
any further right to manufacture, sell or lease products or services that are
based upon, utilize or otherwise incorporate the Technology.
(b) Uni-Mat has performed all obligations required to be performed by
it under the Cross-License Agreement (the "Xxxxx Agreement"), dated March 7,
1992, between Uni-Mat and Xxxx X. Xxxxx ("Xxxxx") including, without limitation,
the payment to Xxxxx of
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the amounts contemplated by paragraph 1 of the Xxxxx Agreement, and Xxxxx does
not have any Lien on any assets of the Shareholder, Uni-Mat or the Company,
whether pursuant to the provisions of the Xxxxx Agreement or otherwise. Uni-Mat
hereby covenants and agrees that it shall continue to perform, and the
Shareholder hereby covenants and agrees that he shall cause Uni-Mat to perform,
all of its obligations under the Xxxxx Agreement arising from and after the date
hereof, subject to the obligations of the Company under the License Agreement.
(c) The agreements, orders and judgements listed on Schedule 3.9(b)
constitute all of the agreements, orders and judgements relating to the
resolution of the matters referenced therein. The Order of Dismissal, in the
form previously furnished by the Shareholder to Newpark and relating to the
action referred to in paragraph B.2 of Schedule 3.9(b), has been entered by the
Court in the form provided by the Shareholder to Newpark.
(d) All obligations of the Shareholder and Uni-Mat to purchase
prefabricated mats from Central Industries, Inc. ("Central"), and all
obligations of Central to build prefabricated mats for the Shareholder and Uni-
Mat, whether pursuant to the terms of the agreements, judgements and orders
referred to on Schedule 3.9(b) or otherwise, have been satisfied in full.
Without limiting the generality of the foregoing, Central has no further right
to manufacture, sell or lease products or services that are based upon, utilize
or otherwise incorporate the Technology.
(e) Under the terms of the Settlement Agreement referred to in
paragraph B.1 of Schedule 3.9(b) (the "Settlement Agreement"), X. X. Xxxx
Oilfield Contractors has been granted the right to manufacture prefabricated
mats incorporating the Technology upon the payment to the Shareholder or Uni-Mat
of a licensing fee in the amount of $35.00 per mat. Except as set forth in the
preceding sentence, none of the Shareholder, the Company or Uni-Mat have any
ongoing obligations or liabilities under the Settlement Agreement, no other
party thereto has any right to manufacture, sell or lease products or services
that are based upon, utilize or otherwise incorporate the Technology, and
nothing contained therein will be binding upon Newpark, Newco or the Company
after the Closing or in any way limit or adversely affect the use of the
Intellectual Property Assets by Newpark, Newco or the Company after the Closing.
Effective immediately prior to the Closing, the Shareholder and Uni-Mat hereby
assign to the Company any and all rights of the Shareholder and Uni-Mat under
the Settlement Agreement, including, without limitation, the right to receive
all licensing or royalty fees payable thereunder.
(f) All loans and advances heretofore made by Texas Guaranty National
Bank to the Shareholder, Uni-Mat or the Company, and all rights with respect
thereto (including, without limitation, all Liens), have been assigned by Texas
Guaranty National Bank to the U.S. Small Business Administration (the "SBA").
Upon the payment to the SBA
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of the amount specified in Schedule 7(e), all obligations of the Shareholder,
Uni-Mat and the Company with respect to such loans and advances shall be
satisfied and paid in full, and the SBA shall be obligated to release any and
all Liens heretofore granted by the Shareholder, Uni-Mat or the Company to Texas
Guaranty National Bank or the SBA.
8. Uni-Mat hereby grants to the Company (and to Newco as the successor-
in-interest to the Company in the Merger) a non-exclusive, paid-up, royalty-free
license, with the right to sublicense others, to make, use, sell and lease
prefabricated mats under United States Patent Number 4,875,800 (the "Xxxxx
Patent"). The license granted hereby to the Company (and to Newco as the
successor-in-interest to the Company in the Merger) shall be equal in scope to
the license granted to Uni-Mat under the Xxxxx Agreement, shall continue in
effect throughout the life of the Xxxxx Patent and shall be deemed to have been
granted in connection with the license granted to the Company (and to Newco as
the successor-in-interest to the Company in the Merger) pursuant to the License
Agreement. Uni-Mat agrees to execute such further documents and instruments as
may be necessary or appropriate to carry out the provisions of this paragraph.
9. Uni-Mat and the Shareholder hereby represent, warrant, covenant and
agree as follows:
(a) Except as disclosed on Schedule 3.9(a) or Schedule 3.9(b), Uni-Mat
has not assigned, transferred or licensed, or purported to assign, transfer or
license, to any person any of its rights under the Uni-Mat License Agreement.
(b) Uni-Mat hereby consents to any and all prior use by the Company of
any of the intellectual property rights licensed to Uni-Mat under the Uni-Mat
License Agreement.
(c) Uni-Mat hereby consents to and approves of the terms of the
License Agreement, as the same may be executed at the Closing, and agrees that,
from and after the Closing, its rights under the Uni-Mat License Agreement shall
not include any of the rights licensed to the Company (and to Newco as the
successor-in-interest to the Company in the Merger) under the License Agreement.
Without limiting the generality of the foregoing, in the event of any conflict
between the rights of the licensee under the License Agreement and the rights of
Uni-Mat under the Uni-Mat License Agreement, the rights of the licensee under
the License Agreement shall be prior and superior to the rights of Uni-Mat under
the Uni-Mat License Agreement.
(d) Uni-Mat acknowledges that it is an Affiliate of the Shareholder
and agrees to be bound by any and all provisions of the License Agreement that
are applicable to Affiliates of the Shareholder.
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(e) The Shareholder and Uni-Mat agree to execute such further docu-
ments and instruments as may be necessary or appropriate to implement the
provisions of this paragraph 9.
10. The Original Agreement, as amended by this Amendment, shall remain in
full force and effect in accordance with its terms. This Amendment may be
executed in one or more counterparts. No modification of this Amendment shall
be valid unless in writing and signed by the parties hereto. In the event of
any conflict between the provisions of this Amendment and the provisions of the
Original Agreement, the provisions of this Amendment shall control.
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the
date first above written.
Newpark Resources, Inc. X. Xxxxxx Interests, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By: /s/ Xxxxxx X. Xxxxxx
---------------------- -----------------------------
Name:_________________ Name: Xxxxxx X. Xxxxxx
Title:________________ Title: President
JPI Acquisition Corp. Uni-Mat International, Inc.
By: /s/ Xxxxxxx X. Xxxxxx By:/s/ Xxxxxx X. Xxxxxx
---------------------- ---------------------
Name:__________________ Name: Xxxxxx X. Xxxxxx
Title:_________________ Title: President
The Shareholder:
/s/ Xxxxxx X. Xxxxxx
---------------------
Xxxxxx X. Xxxxxx, individually
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