EXHIBIT 10.13
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of May 29, 1998,
as amended June 8, 1998, among Xxxxx XxxXxxxxx Incorporated, a Washington
corporation (the "Company"), Xxxxx XxxXxxxxx Group Incorporated, a Washington
corporation and a direct wholly owned subsidiary of the Company ("Holding
Company"), and RMGI Merger Corp., a Washington corporation and a wholly owned
subsidiary of Holding Company ("Merger Sub").
WHEREAS, the Company and Merger Sub desire to merge on the terms and subject
to the conditions set forth in this Agreement;
WHEREAS, the sole shareholder of each of Holding Company and Merger Sub and
the board of directors of each of the Company, Holding Company and Merger Sub
have approved the merger of Merger Sub with and into the Company on the terms
and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the foregoing, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
ARTICLE I
THE MERGER
SECTION 1.1 THE MERGER
Upon the terms and subject to the conditions set forth in this Agreement,
and in accordance with the Washington Business Corporation Act (the "WBCA"),
at the Effective Time (as hereinafter defined) Merger Sub shall be merged with
the Company and the separate corporate existence of Merger Sub shall thereupon
cease (the "Merger"). The Company shall be the surviving corporation in the
Merger (hereinafter sometimes referred to as the "Surviving Corporation").
SECTION 1.2 EFFECTIVE TIME
The Merger shall become effective as of the date and at such time (the
"Effective Time") as a copy of this Agreement pursuant to Section 23B.11.050
of the WBCA and any other documents necessary to effect the Merger in
accordance with the WBCA shall be filed with the Secretary of State of the
State of Washington and become effective.
SECTION 1.3 EFFECTS OF THE MERGER
The Merger shall have the effects set forth in Section 23B.11.060 of the
WBCA.
ARTICLE II
THE SURVIVING CORPORATION
SECTION 2.1 ARTICLES OF INCORPORATION AND BYLAWS
(a) The Restated Articles of Incorporation, as amended, of the Company (the
"Articles of Incorporation") in effect immediately prior to the Effective Time
shall, at the Effective Time, be the Articles of Incorporation of the
Surviving Corporation until the same shall be further altered, amended or
repealed as therein provided.
(b) The Bylaws of the Company in effect immediately prior to the Effective
Time shall, at the Effective Time, be the Bylaws of the Surviving Corporation.
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SECTION 2.2 DIRECTORS AND OFFICERS
At and after the Effective Time, the board of directors of the Surviving
Corporation shall be comprised of the directors of the Merger Sub immediately
prior to the Effective Time, in each case until their respective successors
have been duly elected or until the next annual meeting of shareholders,
whichever is later, or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Articles of Incorporation and
Bylaws. At and after the Effective Time, the officers of the Surviving
Corporation shall be the officers of the Company immediately prior to the
Effective Time, in each case until their respective successors have been duly
appointed or until their earlier death, resignation or removal in accordance
with the Surviving Corporation's Articles of Incorporation and Bylaws.
ARTICLE III
CONVERSION OF SHARES
SECTION 3.1 CONVERSION OF SHARES
At the Effective Time, by virtue of the Merger and without any action on the
part of any holder of any capital stock of the Company or Merger Sub:
(a) each share of common stock, par value $.01 per share, of the Company
("Company Common Stock") (other than Dissenting Shares (as hereinafter
defined)) issued and outstanding immediately prior to the Effective Time
shall, subject to Section 3.3 hereof, be converted as follows:
(i) each share of Company Common Stock owned by each of the
shareholders set forth below, having been originally acquired from the
Company pursuant to the 1990 Stock Purchase Agreement dated December
28, 1990, among the Company and five investors, will be converted into
one share of Class C common stock, par value $.01 per share, of the
Holding Company (the "Class C Common Stock"):
NAME OF 1990 STOCK PURCHASE AGREEMENT HOLDER:
Xxxxxx Xxxxxx
Xxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxxx Xxxxxxx
Xxxx Xxxxxxxx
Xxxxxx Xxxxxx; and
(ii) each share of Company Common Stock owned by each of the
shareholders set forth below, having been originally acquired form the
Company pursuant to a 1995 Stock Purchase Agreement dated September 22,
1995, each between the Company and one of the following five
shareholders, will be converted into one share of Class D common stock,
par value $.01 per share, of the Holding Company (the "Class D Common
Stock"):
NAME OF 1995 STOCK PURCHASE AGREEMENT HOLDER:
Xxxxxxx Xxxxxxxx
Xxxxx Xxxxxx
Xxxxx Xxxxxxxx
KSA Company
X. Xxxxxx Xxxxxxx; and
(iii) each share of Company Common Stock owned by any other
shareholder of the Company, having been originally acquired form the
Company pursuant to any agreement other than the 1990 Stock Purchase
Agreement or the 1995 Stock Purchase Agreements, will be converted into
one share of Class B common stock, par value $.01 per share, of the
Holding Company (the "Class B Common Stock").
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The Class B Common Stock, Class C Common Stock and Class D Common
Stock of the Holding Company are together referred to herein as
"Reorganization Common Stock."
(b) each share of common stock of Merger Sub issued and outstanding
immediately prior to the Effective Time shall be converted into and become
one share of common stock, par value $.01 per share, of the Surviving
Corporation; and
(c) each share of Common Stock, par value $.01 per share, of Holding
Company issued and outstanding immediately prior to the Effective Time
shall be canceled and shall cease to exist and no payment or distribution
shall be made with respect thereto.
SECTION 3.2 EXCHANGE OF STOCK CERTIFICATES
At and after the Effective Time, each certificate theretofore representing
shares of Company Common Stock, without any action on the part of the Company,
Holding Company or the holder thereof, shall be deemed to represent a right to
receive certificates representing that number of shares of Reorganization
Common Stock into which the shares of Company Common Stock were converted
pursuant to Section 3.1 hereof (together with any dividends or other
distributions from Holding Company with respect to such shares from the time
of conversion until the exchange of certificates). At and after the Effective
Time, there shall be no further registrations or transfers on the stock
transfer books of the Surviving Corporation of the shares of the Company
Common Stock which were outstanding immediately prior to the Effective Time.
SECTION 3.3 DISSENTING SHARES
(a) Notwithstanding anything to the contrary contained in this Agreement,
holders of Company Common Stock with respect to which dissenters' rights, if
any, are granted by reason of the Merger under the WBCA and who do not vote in
favor of the Merger and otherwise comply with Chapter 23B.13 of the WBCA
("Dissenting Shares"), shall not be entitled to shares of Reorganization
Common Stock pursuant to Section 3.1 hereof, unless and until the holder
thereof shall have failed to perfect or shall have effectively withdrawn or
lost such holder's right to dissent from the Merger under the WBCA, and shall
be entitled to receive only the payment provided for by Chapter 23B.13 of the
WBCA. If any such holder shall have failed to perfect or shall have
effectively withdrawn or lost such holder's dissenters' rights under the WBCA,
such holder's Dissenting Shares shall thereupon be deemed to be outstanding
shares of Reorganization Common Stock.
(b) Any payments relating to Dissenting Shares shall be made solely by the
Surviving Corporation and no funds or other property have been or will be
provided by Holding Company or any of its other direct or indirect
subsidiaries for such payment.
ARTICLE IV
CONDITIONS TO MERGER
SECTION 4.1 CONDITIONS
The obligations of the Company under this Agreement to effect the Merger are
subject to (a) approval of this Agreement by the affirmative vote of holders
of not less than two-thirds of the outstanding shares of Company Common Stock
entitled to vote at the Special Meeting of the Company shareholders at which
the matter will be considered, (b) any third party or regulatory approvals,
and (c) notice of intent to demand payment pursuant to Chapter 23B.13 of the
WBCA not having been given to the Company by holders of more than 2% of the
Company Common Stock.
SECTION 4.2 WAIVER
Notwithstanding anything to the contrary contained in this Agreement, any or
all of the conditions to the obligation of the Company to effect the Merger
set forth in Section 4.1 may be waived by the unilateral action of the Board
of Directors of the Company or the unilateral action of the Board of Directors
of Holding Company.
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ARTICLE V
MISCELLANEOUS
SECTION 5.1 OPTIONS
At the Effective Time, each option to purchase shares or other right to
acquire shares of Company Common Stock granted under each of the Company's
1989 Stock Option Plan, 1993 Stock Option Plan and 1996 Stock Incentive
Compensation Plan (collectively, the "Assumed Plans") and each arrangement
entitling persons to receive an option (the "Assumed Arrangements") to
purchase shares of Company Common Stock, which is outstanding immediately
prior to the Effective Time, shall be converted into and become an option or
right to purchase or acquire or Assumed Arrangement for an option to acquire
the same number of shares of Class B Common Stock (provided, however, that if
a "Conversion Event" for the Class B Common Stock (as defined in the Company's
Articles of Incorporation) occurs, the conversion shall be into an option or
right to purchase or acquire or Assumed Arrangement for an option to acquire
the same number of shares of common stock, par value $.01 per share, of
Holding Company ("Holding Company Common Stock")) at the same option price per
share, upon the same terms and subject to the same conditions set forth in the
option or right to acquire or purchase shares and in the Assumed Plans (or in
the Assumed Arrangement for an option, in the case of Assumed Arrangements for
options) as in effect at the Effective Time. The same number of shares of
Class B Common Stock (or Holding Company Common Stock, as the case may be)
shall be reserved for purposes of the Assumed Plans and Assumed Arrangements
as is equal to the number of shares of Company Common Stock so reserved as of
the Effective Time. As of the Effective Time, Holding Company will assume the
Assumed Plans and Assumed Arrangements and all obligations of the Company
under the Assumed Plans and Assumed Arrangements, and the outstanding options
and other rights to acquire or purchase shares of Company Common Stock granted
pursuant to the Assumed Plans and Assumed Arrangements.
SECTION 5.2 [RESERVED]
SECTION 5.3 AMENDMENT
This Agreement amends and supercedes the Agreement and Plan of Merger, dated
as of May 29, 1998, among the Company, Holding Company and Merger Sub. This
Agreement may be amended by written agreement of the parties hereto at any
time prior to the Effective Time.
SECTION 5.4 ABANDONMENT
At any time prior to the Effective Time, this Agreement may be terminated
and abandoned by the unilateral action of the Board of Directors of the
Company or the unilateral action of the Board of Directors of Holding Company.
SECTION 5.5 COUNTERPARTS
This Agreement may be executed in two or more counterparts, all of which
shall be considered one and the same agreement and shall become effective when
two or more counterparts have been signed by each of the parties and delivered
to the other parties.
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SECTION 5.6 GOVERNING LAW
This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Washington, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
June 8, 1998.
XXXXX XXXXXXXXX INCORPORATED
/s/ V. Xxxxxxxx Xxxxxxxxx
Dated: June 8, 1998 _______________________________________
By: V. Xxxxxxxx Xxxxxxxxx
Its: Chief Financial Officer
XXXXX XXXXXXXXX GROUP INCORPORATED
/s/ V. Xxxxxxxx Xxxxxxxxx
Dated: June 8, 1998 _______________________________________
By: V. Xxxxxxxx Xxxxxxxxx
Its: Senior Vice President and Chief
Financial Officer
RMGI MERGER CORP.
/s/ V. Xxxxxxxx Xxxxxxxxx
Dated: June 8, 1998 _______________________________________
By: V. Xxxxxxxx Xxxxxxxxx
Its: President
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