Exhibit 10.8
Conformed Copy
AMENDMENT NO. 1 TO
AGREEMENT AND PLAN OF MERGER
AMENDMENT NO. 1, dated December 30, 2005, to AGREEMENT AND PLAN OF
MERGER ("Merger Agreement") dated as of December 5, 2005, by and among Arpeggio
Acquisition Corporation, a Delaware corporation ("Parent"), Hill International,
Inc., a Delaware corporation ("Company"), and each of the persons listed under
the caption "Stockholders" on the signature page hereof, such persons being all
of the stockholders of the Company (each a "Stockholder" and, collectively, the
"Stockholders"). Capitalized terms used herein that are defined in the Merger
Agreement shall have the same meanings as used in the Merger Agreement.
The parties hereto, being all of the parties to the Merger Agreement,
hereby agree that the Merger Agreement is hereby amended as follows:
1. The Voting Agreement in the form of Exhibit D to the Merger
Agreement is hereby amended to read as set forth in Attachment 1 annexed hereto.
2. Schedule 5.2 to the Merger Agreement is hereby amended to read as
set forth in Attachment 2 annexed hereto.
3. The Merger Agreement, as amended hereby, shall remain in full
force and effect.
[Signatures are on following pages]
IN WITNESS WHEREOF, the parties have executed this Amendment to
Agreement and Plan of Merger as of the date first above written.
ARPEGGIO ACQUISITION CORPORATION
By: /s/ Xxxx X. Xxxxxxxxx
---------------------
Xxxx X. Xxxxxxxxx, Chairman, CEO
and President
HILL INTERNATIONAL, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx, Chairman and CEO
STOCKHOLDERS:
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
/s/ Xxxxx X. Xxxxxxx
--------------------
Xxxxx X. Xxxxxxx
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Attachment 1
EXHIBIT D
VOTING AGREEMENT
VOTING AGREEMENT, dated as of this __ day of [Closing Date] ("Agreement"),
among each of the persons listed under the caption "Target Group" on
Exhibit A attached hereto (the "Target Group"), each of the persons listed
under the caption "Founders Group" on Exhibit A attached hereto (the
"Founders Group") and Arpeggio Acquisition Corporation, a Delaware
corporation ("Parent"). Each of the Target Group and the Founders Group is
sometimes referred to herein as a "Group". For purposes of this Agreement,
each person who is a member of either the Target Group or the Founders
Group is referred to herein individually as a "Stockholder" and
collectively as the "Stockholders".
WHEREAS, as of December 5, 2005, each of Parent, Hill International, Inc.
(the "Company"), a Delaware corporation, and the Stockholders who are
members of the Target Group have entered into an Agreement and Plan of
Merger (the "Merger Agreement") that provides, inter alia, upon the terms
and subject to the conditions thereof, for the merger of the Company into
Parent (the "Merger");
WHEREAS, as of the date hereof, each Stockholder who is a member of the
Founders Group owns beneficially and of record shares of common stock of
Parent, par value $0.0001 per share ("Parent Common Stock"), as set forth
opposite such Stockholder's name on Exhibit A hereto (all such shares and
any shares of which ownership of record or the power to vote is hereafter
acquired by any of the Stockholders, whether by purchase, conversion or
exercise, prior to the termination of this Agreement being referred to
herein as the "Shares");
WHEREAS, at the Effective Time, all shares of Company Common Stock
beneficially owned by each Stockholder who is a member of the Target Group
shall be converted into the right to receive and shall be exchanged for
his, her or its pro rata portion of the shares of Parent Common Stock to be
issued to the Company's security holders as consideration in the Merger;
WHEREAS, as a condition to the consummation of the Merger Agreement, the
Stockholders have agreed, severally, to enter into this Agreement; and
WHEREAS, capitalized terms used but not defined in this Agreement shall
have the meanings ascribed to them in the Merger Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Merger Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
VOTING OF SHARES FOR DIRECTORS
------------------------------
SECTION 1.01 Vote in Favor of the Directors. During the term of this
Agreement, each Stockholder agrees to vote the Shares of Parent Common Stock he,
she or it now owns, or will
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hereafter acquire prior to the termination of this Agreement, for the election
and re-election of the following persons as directors of Parent:
(a) Five (5) persons, (i) three of whom shall at all times be
"independent directors," within the meaning of the Nasdaq rules, and (ii)
all of whom shall be designees of the Target Group; with three (3) of such
designees to stand for election in 2006 ("Class A Directors"), who shall
initially be Xxxxx X. Xxxxxxx and two persons to be designated prior to the
Closing Date (as defined in the Merger Agreement), each of whom shall be an
"independent director;" one (1) of such designees to stand for election in
2007 ("Class B Directors"), who shall initially be Xxxxx X. Xxxxxxx, and
one (1) of such designees to stand for election in 2008 ("Class C
Directors"), who shall initially be designated prior to the Closing Date,
and who shall be an "independent director" (collectively, the "Target
Directors"); and
(b) Two (2) persons, both of whom shall be designees of the
Founders Group, which designees initially shall be Arnaud Ajdler, who shall
be elected as a Class B Director, and Xxxx Xxxxxxxxx, who shall be elected
as a Class C Director (the "Founders Directors," and together with the
Target Directors, the "Director Designees").
Neither the Stockholders, nor any of the officers, directors,
stockholders, members, managers, partners, employees or agents of any
Stockholder, makes any representation or warranty as to the fitness or
competence of any Director Designee to serve on the Board of Directors by
virtue of such party's execution of this Agreement or by the act of such
party in designating or voting for such Director Designee pursuant to this
Agreement.
Any Director Designee may be removed from the Board of Directors in
the manner allowed by law and Parent's governing documents except that each
Stockholder agrees that he, she or it will not, as a stockholder, vote for
the removal of any director who is a member of Group of which such
Stockholder is not a member. If a director is removed or resigns from
office, the remaining directors of the Group of which the vacating director
is a member shall be entitled to appoint the successor.
SECTION 1.02 Vote in Favor of Stock Option Plan. During the term of
this Agreement, each Stockholder agrees to vote the Shares of Parent Common
Stock he, she or it now owns, or hereafter acquires prior to the termination of
this Agreement, in favor of the adoption of the Parent Plan (as defined in the
Merger Agreement).
SECTION 1.03 Obligations of Parent. Parent shall take all necessary
and desirable actions within its control during the term of this Agreement to
provide for the Parent Board of Directors to be comprised of seven (7) members
and to enable the election to the Board of Directors of the Director Designees.
SECTION 1.04 Term of Agreement. The obligations of the Stockholders
pursuant to this Agreement shall terminate immediately following the election or
re-election of directors at the annual meeting of Parent that will be held in
2007.
SECTION 1.05 Obligations as Director and/or Officer. Nothing in this
Agreement shall be deemed to limit or restrict any director or officer of Parent
from acting in his or her capacity as such director or officer or from
exercising his or her fiduciary duties and responsibilities, it being
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agreed and understood that this Agreement shall apply to each Stockholder solely
in his or her capacity as a stockholder of Parent and shall not apply to his or
her actions, judgments or decisions as a director or officer of Parent if he or
she is such a director or officer.
SECTION 1.06 Transfer of Shares. If a member of the Target Group
desires to transfer his, her or its Shares to a permitted transferee pursuant to
the Lock-Up Agreement of even date herewith executed by such member, or if a
member of the Founders Group desires to transfer his or its shares to a
permitted transferee pursuant to the Stock Escrow Agreement dated as of June 24,
2004, it shall be a condition to such transfer that the transferee agree to be
bound by the provisions of this Agreement. This Agreement shall in no way
restrict the transfer on the public market of Shares that are not subject to the
Lock-Up Agreement or the Stock Escrow Agreement, and any such transfers on the
public market of Shares not subject to the provisions of the Lock-Up Agreement
or the Stock Escrow Agreement, as applicable, shall be free and clear of the
restrictions in this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE STOCKHOLDERS
-----------------------------
Each Stockholder hereby severally represents warrants and covenants as
follows:
SECTION 2.01 Authorization. Such Stockholder has full legal capacity
and authority to enter into this Agreement and to carry out such Stockholder's
obligations hereunder. This Agreement has been duly executed and delivered by
such Stockholder, and (assuming due authorization, execution and delivery by
Parent and the other Stockholders) this Agreement constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms.
SECTION 2.02 No Conflict; Required Filings and Consents.
------------------------------------------
(a) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, (i) conflict with or violate any Legal Requirement
applicable to such Stockholder or by which any property or asset of such
Stockholder is bound or affected, or (ii) result in any breach of or
constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any right of
termination, amendment, acceleration or cancellation of, or result in the
creation of any encumbrance on any property or asset of such Stockholder,
including, without limitation, the Shares, pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise
or other instrument or obligation.
(b) The execution and delivery of this Agreement by such
Stockholder does not, and the performance of this Agreement by such
Stockholder will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or
regulatory authority, domestic or foreign, except (i) for applicable
requirements, if any, of the Exchange Act, and (ii) where the failure to
obtain such consents, approvals, authorizations or
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permits, or to make such filings or notifications, would not prevent or
materially delay the performance by such Stockholder of such Stockholder's
obligations under this Agreement.
SECTION 2.03 Title to Shares. Such Stockholder is the legal and
beneficial owner of its Shares, or will be the legal beneficial owner of the
Shares that such Stockholder will receive as a result of the Merger, free and
clear of all liens and other encumbrances except certain restrictions upon the
transfer of such Shares.
ARTICLE III
GENERAL PROVISIONS
------------------
SECTION 3.01 Notices. All notices and other communications given or
made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by overnight
courier service, by telecopy, or by registered or certified mail (postage
prepaid, return receipt requested) to the respective parties at the following
addresses (or at such other addresses as shall be specified by notice given in
accordance with this Section 3.01):
(a) If to Parent:
Arpeggio Acquisition Corporation
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 10022
Attention: Xxxx X. Xxxxxxxxx
Telecopy No.: 000-000-0000
with a mandatory copy to
Xxxxxxxx Xxxxxx
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, X.X. 00000-0000
Attention: Xxxxx Xxxx Xxxxxx, Esq.
Telecopy No.: 000-000-0000
(b) If to any Stockholder, to the address set forth opposite
his, her or its name on Exhibit A.
With a mandatory copy to
XxXxxxxx & English, LLP
000 Xxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telecopy No.: 000-000-0000
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SECTION 3.02 Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.03 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 3.04 Entire Agreement. This Agreement constitutes the
entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof. This Agreement may not be amended or
modified except in an instrument in writing signed by, or on behalf of, the
parties hereto.
SECTION 3.05 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
SECTION 3.06 Governing Law. This Agreement shall be governed by,
and construed in accordance with, the law of the State of Delaware applicable to
contracts executed in and to be performed in that State.
SECTION 3.07 Disputes. All actions and proceedings arising out of
or relating to this Agreement shall be heard and determined exclusively in any
state or federal court in Delaware.
SECTION 3.08 No Waiver. No failure or delay by any party in
exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 3.09 Counterparts. This Agreement may be executed in one or
more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
SECTION 3.10 Waiver of Jury Trial. Each of the parties hereto
irrevocably and unconditionally waives all right to trial by jury in any action,
proceeding or counterclaim (whether based in contract, tort or otherwise)
arising out of or relating to this Agreement or the Actions of the parties
hereto in the negotiation, administration, performance and enforcement thereof.
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SECTION 3.11 Merger Agreement. All references to the Merger
Agreement herein shall be to such agreement as may be amended by the parties
thereto from time to time.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
ARPEGGIO ACQUISITION CORPORATION
By:
------------------------
Name: Xxxx X. Xxxxxxxxx
Title: Chairman, CEO and President
STOCKHOLDERS:
THE FOUNDERS GROUP:
----------------------------
Xxxx X. Xxxxxxxxx
----------------------------
Arnaud Ajdler
THE TARGET GROUP:
----------------------------
Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
----------------------------
Xxxxx X. Xxxxxxx
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Conformed Copy
EXHIBIT A
STOCKHOLDERS
THE FOUNDERS GROUP:
Name and Address Number of Shares
---------------- ----------------
Xxxx X. Xxxxxxxxx 1,200,000
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 10022
Telecopy No.: 000-000-0000
Arnaud Ajdler 60,000
00 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, X.X. 10022
Telecopy No.: 000-000-0000
THE TARGET GROUP:
Xxxxx X. Xxxxxxx
c/x Xxxx International, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, X.X. 00000
Telecopy No.: 000-000-0000
Xxxxx X. Xxxxxxx
c/o Hill International, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, X.X. 00000
Telecopy No.: 000-000-0000
Xxxxx X. Xxxxxxx
c/x Xxxx International, Inc.
000 Xxxxxxxxxx Xxxxxx
Xxxxxxx, X.X. 00000
Telecopy No.: 000-000-0000
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Attachment 2
SCHEDULE 5.2
DIRECTORS AND OFFICERS OF PARENT
Directors
---------
Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Xxxx Xxxxxxxxx
Xxxxxx Xxxxxx
Three persons to be designated pursuant to Voting Agreement
Officers (Senior Vice President and Above)
------------------------------------------
Xxxxx X. Xxxxxxx Chairman and Chief Executive Officer
Xxxxx X. Xxxxxxx President and Chief Operating Officer
Xxxxxxxx X. Xxxxxxxx President, Construction Claims Group
Xxxxx X. Xxxxx President, Project Management Group (International)
Xxxxx Xxxxxx Senior Vice President
Xxxx X. Xxxxxxx Senior Vice President
Xxxxxx X. Emma Senior Vice President
Xxxxx X. Xxxxxx Senior Vice President
Xxxxxxx X. Xxxxxxx Senior Vice President
Xxxx X. Xxxxxx Senior Vice President
Xxxxxxx X. Xxxx Senior Vice President
Xxxxx X. Xxxxxx Senior Vice President
Xxxxx X. Xxxxxx Senior Vice President & Director, Transportation Group
X. Xxxxxx Pile Senior Vice President
Xxxxx X. Xxxxxxx Senior Vice President
Xxxxxx X. Xxxxxxx Senior Vice President
Xxxxxxx X. Xxxxxxx, Xx. Vice President, General Counsel and Secretary
Xxxx X. Xxxxxxx Assistant Secretary
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