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EXHIBIT 2.5
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AGREEMENT AND PLAN OF MERGER
by and among
XXXXXXX AMERICAN CORPORATION,
RICHMONT MARKETING SPECIALISTS INC.
and
THE STOCKHOLDERS OF
RICHMONT MARKETING SPECIALISTS INC.
Dated as of April 28, 1999
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TABLE OF CONTENTS
Page
ARTICLE 1. THE MERGER....................................................................................2
1.1 The Merger....................................................................................2
1.2 The Closing...................................................................................2
1.3 Effective Time................................................................................2
1.4 Ancillary Agreements..........................................................................2
1.5 Certificate of Incorporation and Bylaws of the Surviving Corporation..........................3
1.6 Board of Directors of Surviving Corporation...................................................3
1.7 Officers of Surviving Corporation.............................................................4
1.8 Change of Name................................................................................4
ARTICLE 2. EXCHANGE OF STOCK.............................................................................4
2.1 Outstanding Common Stock of Xxxxxxx...........................................................4
2.2 Conversion of RMSI Stock......................................................................4
2.3 Lost or Stolen Certificates...................................................................7
2.4 Dissenters' Rights............................................................................7
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF RMSI........................................................8
3.1 Existence; Good Standing; Authority; Compliance With Law......................................8
3.2 Authorization, Validity and Effect of Agreements..............................................9
3.3 Capital Stock of RMSI........................................................................10
3.4 Real Property................................................................................10
3.5 Contracts....................................................................................12
3.6 Transactions with Interested Persons.........................................................13
3.7 Employee Benefit Programs....................................................................13
3.8 Intentionally Omitted........................................................................16
3.9 No Payments to Employees, Officers and Directors.............................................16
3.10 Taxes........................................................................................16
3.11 Tax-Free Treatment...........................................................................18
3.12 Proxy Statement..............................................................................18
3.13 SEC Documents................................................................................18
3.14 No Brokers...................................................................................19
3.15 Litigation...................................................................................19
3.16 Absence of Certain Changes...................................................................19
3.17 Disclosure...................................................................................19
3.18 Undisclosed Liabilities......................................................................20
3.19 Customers and Principals.....................................................................20
3.20 Receivables..................................................................................20
3.21 Definition of RMSI's Knowledge...............................................................20
3.22 Ownership of Xxxxxxx Common Stock............................................................20
(i)
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ARTICLE 4. INVESTMENT REPRESENTATIONS AND WARRANTIES OF THE RMSI STOCKHOLDERS...........................21
4.1 Investment Representations...................................................................21
4.2 Registration.................................................................................21
4.3 Ownership of Xxxxxxx Common Stock............................................................22
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF XXXXXXX....................................................22
5.1 Existence; Good Standing; Authority; Compliance With Law.....................................22
5.2 Authorization, Validity and Effect of Agreements.............................................23
5.3 Capital Stock of Xxxxxxx.....................................................................24
5.4 Real Property. ..............................................................................25
5.5 Contracts....................................................................................26
5.6 Transactions with Interested Persons.........................................................27
5.7 Employee Benefit Programs....................................................................27
5.8 Intentionally Omitted........................................................................29
5.9 No Payments to Employees, Officers and Directors.............................................29
5.10 Taxes........................................................................................29
5.11 Tax-Free Treatment...........................................................................31
5.12 Proxy Statement..............................................................................31
5.13 SEC Documents................................................................................31
5.14 No Brokers...................................................................................32
5.15 Litigation...................................................................................32
5.16 Absence of Certain Changes...................................................................32
5.17 Disclosure...................................................................................32
5.18 Undisclosed Liabilities......................................................................33
5.19 Customers and Principals.....................................................................33
5.20 Receivables..................................................................................33
5.21 Definition of Xxxxxxx'x Knowledge............................................................33
5.22 Opinion of Financial Advisor.................................................................33
ARTICLE 6. COVENANTS....................................................................................34
6.1 Acquisition Proposals........................................................................34
6.2 Conduct of Businesses........................................................................36
6.3 Meeting of Stockholders......................................................................39
6.4 Filings; Other Action........................................................................39
6.5 Access to Information........................................................................40
6.6 Publicity....................................................................................41
6.7 Proxy Statement..............................................................................41
6.8 Listing Application..........................................................................42
6.9 Further Action...............................................................................42
6.10 Affiliates of RMSI...........................................................................43
6.11 Expenses.....................................................................................43
6.12 Notice of Default............................................................................43
(ii)
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6.13 Filings Under Xxxx-Xxxxx-Xxxxxx Act..........................................................44
6.14 Tax-Free Treatment...........................................................................44
6.15 Nonsolicitation..............................................................................44
6.16 Financing....................................................................................45
6.17 RMSI Employees...............................................................................45
6.18 Exchange Offer Registration Statement........................................................45
6.19 Option Registration Statement................................................................46
6.20 Ancillary Agreements.........................................................................46
6.21 Spousal Consent..............................................................................47
ARTICLE 7. CONDITIONS...................................................................................47
7.1 Conditions to Each Party's Obligation to Effect the Merger...................................47
7.2 Conditions to Obligations of RMSI to Effect the Merger.......................................48
7.3 Conditions to Obligation of Xxxxxxx to Effect the Merger.....................................49
ARTICLE 8. TERMINATION; AMENDMENT; WAIVER...............................................................50
8.1 Termination..................................................................................50
8.2 Effect of Termination........................................................................51
8.3 Extension; Waiver............................................................................51
ARTICLE 9. GENERAL PROVISIONS...........................................................................52
9.1 Nonsurvival of Representations, Warranties and Agreements....................................52
9.2 Notices......................................................................................52
9.3 Assignment; Binding Effect; Benefit..........................................................53
9.4 Entire Agreement.............................................................................53
9.5 Amendment....................................................................................54
9.6 Governing Law................................................................................54
9.7 Counterparts.................................................................................54
9.8 Headings.....................................................................................54
9.9 Interpretation...............................................................................54
9.10 Waivers......................................................................................54
9.11 Incorporation................................................................................55
9.12 Severability.................................................................................55
9.13 Enforcement of Agreement.....................................................................55
9.14 Certain Definitions..........................................................................55
(iii)
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EXHIBITS
Exhibit A Certificate of Merger
Exhibit B-1 Form of Xxxxxxx Voting Agreement
Exhibit B-2 Form of RMSI Voting Agreement
Exhibit C-1 Form of Charter Amendment for Changes to Board of Directors
Exhibit C-2 Form of Charter Amendment for Name Change
Exhibit D Form of Affiliate Letter
Exhibit E Form of SMART Cancellation Consent
Exhibit F Form of Spousal Consent
Exhibit G Form of Post-Merger Voting Agreement
Exhibit H Form of Advisory Agreement
Exhibit I-1 Registration Rights Agreement for RMSI Stockholders
Exhibit I-2 Form of Registration Rights Agreement for Xxxxxxx Stockholders
SCHEDULES
Schedule 7.2(g) List of Xxxxxxx Required Consents
Schedule 7.3(i) List of RMSI Required Consents
Schedule 6.2(a)(xiii) Pending Transactions
(iv)
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement"), is made and
entered into as of April 28, 1999, by and among Xxxxxxx American Corporation, a
Delaware corporation ("Xxxxxxx"), Richmont Marketing Specialists Inc., a
Delaware corporation ("RMSI"), and MS Acquisition Limited, a Texas limited
partnership, Xxxxxx X. Xxxxxxxx, Xxxxx X. Xxxxxx, Xxxx X. Xxxxxx and Xxxxxxx X.
Xxxx (collectively, the "RMSI Stockholders").
RECITALS
WHEREAS, the boards of directors of Xxxxxxx and RMSI have each
determined that it is advisable and in the best interests of their respective
stockholders to consummate, and have approved, the business combination
transaction provided for herein in which RMSI would merge with and into Xxxxxxx
and Xxxxxxx would be the surviving corporation (the "Merger");
WHEREAS, the boards of directors of Xxxxxxx and RMSI, respectively,
have determined that the Merger is in the best interests of their respective
companies and presents an opportunity for their respective companies to achieve
long-term strategic and financial benefits, and accordingly have agreed to
effect the transactions provided for herein upon the terms and subject to the
conditions set forth herein;
WHEREAS, contemporaneously with the execution of this Agreement, the
RMSI Stockholders are entering into an agreement with Xxxxxxx in which they have
agreed to vote their shares of common stock, par value $.01 per share, of RMSI
("RMSI Common Stock") subject to the terms contained therein;
WHEREAS, contemporaneously with the execution of this Agreement, Monroe
& Company II, LLC, Xxxxxx X. Xxxxx, Xxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxxxx, Xxxxxx
X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xx. and Xxxxxx X. Xxxxxx (the "Management
Stockholders"), are entering into an agreement with RMSI in which they have
agreed to vote their shares of common stock, par value $.01 per share, of
Xxxxxxx ("Xxxxxxx Common Stock") and their shares of restricted common stock,
par value $.01 per share, of Xxxxxxx ("Xxxxxxx Restricted Common Stock"),
subject to the terms contained therein; and
WHEREAS, Xxxxxxx, RMSI and the RMSI Stockholders desire to make certain
representations, warranties and agreements in connection with the Merger.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, and
intending to be legally bound, the parties hereto hereby agree as follows:
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ARTICLE 1. THE MERGER
1.1 The Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time (as hereinafter defined), RMSI shall be merged with and
into Xxxxxxx in accordance with this Agreement, and the separate corporate
existence of RMSI shall thereupon cease. Xxxxxxx shall be the surviving
corporation in the Merger (sometimes hereinafter referred to as the "Surviving
Corporation"). The Merger shall have the effect specified in Section 259 of the
Delaware General Corporation Law (the "DGCL"). It is intended that the Merger
will qualify as a reorganization under Section 368(a) of the Internal Revenue
Code of 1986, as amended (the "Code"). All of the parties to this Agreement
agree to report the Merger, for all purposes, in a manner which is consistent
with the preceding sentence.
1.2 The Closing. Subject to the terms and conditions of this Agreement,
the closing of the Merger (the "Closing") shall take place at the offices of
Xxxxxxx, Procter & Xxxx LLP, Exchange Place, Boston, Massachusetts, at 10:00
a.m., local time, on the date which is the first business day immediately
following the day on which the last of the conditions set forth in Article 7
shall be fulfilled or waived in accordance herewith, or at such other time, date
or place as the parties hereto may agree. Unless the parties shall otherwise
agree, the parties shall use their reasonable best efforts to cause the Closing
to occur as soon as possible after the meetings of stockholders of RMSI and
Xxxxxxx held pursuant to Section 6.3. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
1.3 Effective Time. If all of the conditions to the Merger set forth in
Article 7 shall have been fulfilled or waived in accordance herewith and this
Agreement shall not have been terminated as provided in Article 8, the parties
hereto shall promptly cause a Certificate of Merger satisfying the requirements
of the DGCL and in substantially the form attached hereto as Exhibit A (the
"Certificate of Merger"), to be properly executed, verified and delivered for
filing in accordance with the DGCL on the Closing Date. The Merger shall become
effective upon the filing of the Certificate of Merger with the office of the
Secretary of State of the State of Delaware in accordance with the DGCL or at
such later time which the parties hereto shall have agreed upon and designated
in such filing in accordance with applicable law as the effective time of the
Merger (the "Effective Time").
1.4 Ancillary Agreements. As an inducement to Xxxxxxx and RMSI to enter
into this Agreement, the following agreements are being executed
contemporaneously with the execution of this Agreement: the voting agreement
dated as of the date hereof by and among Xxxxxxx and the each of the RMSI
Stockholders in the form attached hereto as Exhibit B-1 (the "RMSI Voting
Agreement") and the voting agreement by and among RMSI and each of the
Management Stockholders in the form attached hereto as Exhibit B-2 (the "Xxxxxxx
Voting Agreement"). In addition, Xxxxxxx agrees to use commercially reasonable
efforts to obtain a Voting Agreement in the form attached hereto as Exhibit B-2
from Xxxxxx X. Xxxxxxx, the Xxxxxx X. Xxxxxxx 1984 Revocable Trust and the
Xxxxxx X. Xxxxxxx 1991 Charitable Remainder Unitrust.
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1.5 Certificate of Incorporation and Bylaws of the Surviving
Corporation.
(a) Charter. The Second Amended and Restated Certificate of
Incorporation of Xxxxxxx in effect immediately prior to the Effective Time shall
be the certificate of incorporation of the Surviving Corporation, as amended as
provided in Sections 1.6(b) and 1.8 of this Agreement and until duly amended in
accordance with applicable law and such certificate of incorporation (the
"Surviving Corporation Charter").
(b) Bylaws. The bylaws of Xxxxxxx in effect immediately prior
to the Effective Time shall be the bylaws of the Surviving Corporation, until
duly amended in accordance with applicable law, the Surviving Corporation
Charter and such bylaws.
1.6 Board of Directors of Surviving Corporation.
(a) As of the Effective Time, the number of directors of
Xxxxxxx shall be fixed at nine (9). As of the Effective Time, four (4) of the
directors of Xxxxxxx shall be Xxxxxx X. Xxxxxxx, Xxxxxx X. Xxxxx III, Xxxxx X.
Xxxxxx and Xxxxx X. Xxxxxxxxxxx (the foregoing four (4) individuals being
referred to herein collectively as the "Xxxxxxx Designees"). As of the Effective
Time, the remaining five (5) directors of Xxxxxxx shall be Xxxx X. Xxxxxx, Xxxx
X. Xxxxxx, Xxxxxxx X. Xxxx and Xxxxxx X. Xxxxxxxx and one (1) individual (the
"Independent Director") designated by RMSI prior to the Effective Time who shall
not be an employee of either RMSI or Xxxxxxx and shall otherwise be reasonably
acceptable to Xxxxxxx (the foregoing five (5) individuals being referred to
herein collectively as the "RMSI Designees").
(b) At the Effective Time, the Second Amended and Restated
Certificate of Incorporation of Xxxxxxx shall be amended as set forth in Exhibit
C-1 attached hereto (the "Board Amendment") so that the Board of Directors of
Xxxxxxx shall be divided into three (3) classes, and the directors of each class
of the Board of Directors of Xxxxxxx shall be as follows (subject to the
provisions of this Section 1.6):
Class Designee Term Expires
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I Xxxxxx X. Xxxxxxxx 2000
I Xxxxxxx X. Xxxx 2000
I Xxxxx X. Xxxxxxxxxxx 2000
II Xxxx X. Xxxxxx 2001
II Xxxxxx X. Xxxxxxx 2001
II Xxxxxx X. Xxxxx III 2001
III Xxxx X. Xxxxxx 2002
III Xxxxx X. Xxxxxx 2002
III Independent Director 2002
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(c) Xxxxxxx and RMSI agree that in the event that any Xxxxxxx
Designee is unable or otherwise fails to serve, for any reason, as a director of
Xxxxxxx at the Effective Time, Xxxxxxx shall have the right to designate another
individual to serve as a director of Xxxxxxx at the Effective Time in place of
such Xxxxxxx Designee (or if a vacancy shall be deemed to have occurred in
respect thereof, Xxxxxxx shall have the right to fill such vacancy,
notwithstanding any other provision to the contrary contained herein); provided,
however, that such individual shall be reasonably satisfactory to RMSI. Xxxxxxx
and RMSI shall each cause such designee of Xxxxxxx to be elected to the Board of
Directors of Xxxxxxx at the Effective Time in place of such Xxxxxxx Designee.
(d) Xxxxxxx and RMSI agree that in the event that any RMSI
Designee is unable or otherwise fails to serve, for any reason, as a director of
Xxxxxxx at the Effective Time, RMSI shall have the right to designate another
individual to serve as a director of Xxxxxxx at the Effective Time in place of
such RMSI Designee (or if a vacancy shall be deemed to have occurred in respect
thereof, RMSI shall have the right to fill such vacancy, notwithstanding any
other provision to the contrary contained herein); provided, however, that such
individual shall be reasonably satisfactory to Xxxxxxx. Xxxxxxx and RMSI shall
each cause such designee of RMSI to be elected to the Board of Directors of
Xxxxxxx at the Effective Time in place of such RMSI Designee.
1.7 Officers of Surviving Corporation. At the Effective Time, the
officers of Xxxxxxx shall include, but not be limited to, Xxxxxx X. Xxxxxxxx,
who shall be Chairman of the Board of Directors, Xxxxxx X. Xxxxxxx, who shall be
Chief Executive Officer and President, Xxxxx X. Xxxxxx, who shall be Chief
Operating Officer, Xxxxxx X. Xxxxx, who shall be Chief Financial Officer,
Xxxxxxx X. Xxxxxxxx, who shall be Executive Vice President--Sales, and Xxxxxxx
Xxxx, who shall be an Executive Vice President--New Business Development.
1.8 Change of Name. At the Effective Time, Article I of the Second
Amended and Restated Certificate of Incorporation of Xxxxxxx shall be amended to
change the name of the Surviving Corporation to "Marketing Specialists
Corporation" as set forth in Exhibit C-2 attached hereto.
ARTICLE 2. EXCHANGE OF STOCK
2.1 Outstanding Common Stock of Xxxxxxx. At and after the Effective
Time, each share of Xxxxxxx Common Stock outstanding immediately prior to the
Effective Time shall remain outstanding.
2.2 Conversion of RMSI Stock.
(a) The maximum aggregate number of shares of Xxxxxxx Common
Stock issuable to the holders of RMSI Common Stock in the Merger shall be
6,705,551. At the
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Effective Time, each share of RMSI Common Stock issued and outstanding
immediately prior to the Effective Time (other than those shares of RMSI Common
Stock to be canceled pursuant to Section 2.2(c) below and except as otherwise
provided in Section 2.4 below with respect to Dissenting Shares (as defined
below)) shall, by virtue of the Merger and without any action on the part of
Xxxxxxx or RMSI or the holders of any of the securities of either of such
corporations, be converted into that number of fully paid and nonassessable
shares of Xxxxxxx Common Stock equal to the quotient (the "Exchange Ratio")
obtained by dividing (i) 6,705,551 by (ii) the total number of shares of RMSI
Common Stock issued and outstanding immediately prior to the Effective Time;
provided, however, that no fractional shares of Xxxxxxx Common Stock shall be
issued pursuant hereto. In lieu of the issuance of any fractional shares of
Xxxxxxx Common Stock pursuant to this Agreement, each holder of RMSI Common
Stock upon surrender of a certificate representing ownership of RMSI Common
Stock for exchange shall be paid an amount in cash (without interest), rounded
to the nearest cent, determined by multiplying (i) the average closing price of
Xxxxxxx Common Stock on the Nasdaq National Market on the five (5) trading days
immediately preceding the second day prior to the Closing Date by (ii) the
fractional amount of the shares which such holder would otherwise be entitled to
receive under this Article 2. The term "Merger Consideration" shall mean the
total number of shares of Xxxxxxx Common Stock to be issued to holders of RMSI
Common Stock in the Merger, together with the total amount of cash delivered in
lieu of fractional shares pursuant to this Section 2.2(a).
(b) As a result of the Merger and without any action on the
part of the holders thereof, all shares of RMSI Common Stock shall cease to be
outstanding, shall be canceled and retired and shall cease to exist and each
holder of a certificate (a "Certificate" and, collectively, the "Certificates")
representing any shares of RMSI Common Stock (other than those shares of RMSI
Common Stock to be canceled pursuant to Section 2.2(c) below and except as
otherwise provided in Section 2.4 below with respect to Dissenting Shares (as
defined below)) shall thereafter cease to have any rights with respect to such
shares of RMSI Common Stock, except, without interest, such holder's
proportionate share of the Merger Consideration in accordance with Section
2.2(a) upon the surrender of such Certificate.
(c) Each share of RMSI Common Stock issued and held in RMSI's
treasury or owned by Xxxxxxx immediately prior to the Effective Time, if any, by
virtue of the Merger shall cease to be outstanding, shall be canceled and
retired and shall cease to exist and no payment of any consideration shall be
made with respect thereto.
(d) At the Effective Time, the stock transfer books of RMSI
shall be closed, and there shall be no further registration of transfers of
shares of RMSI Common Stock thereafter on the records of RMSI. If, after the
Effective Time, Certificates are presented for transfer, they shall be canceled
against delivery of the Merger Consideration as hereinabove provided and the
holder of such Certificates shall also be entitled to receive any and all
dividends and distributions (whether in the form of cash, stock or otherwise)
payable in respect of the Merger Consideration with a record date after the
Effective Time and prior to the cancellation of such Certificates. Certificates
surrendered for exchange by any person constituting an "affiliate" of RMSI for
purposes of Rule 145, as such rule may be amended from time to time ("Rule
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145"), of the rules and regulations promulgated under the Securities Act of
1933, as amended (the "Securities Act"), shall not be exchanged until Xxxxxxx
has received an affiliate letter in the form attached hereto as Exhibit D (the
"Affiliate Letter") from such person.
(e) At the Effective Time, and subject to the consent of the
holder thereof, RMSI's obligations with respect to each senior management
appreciation right (collectively, the "SMARTs") outstanding immediately prior to
the Effective Time shall be canceled and, in exchange therefor, the holders of
such SMARTs shall be entitled to receive incentive options to purchase shares of
Xxxxxxx Common Stock issued pursuant to Xxxxxxx'x Amended and Restated 1998
Stock Option and Incentive Plan (such plan, the "Xxxxxxx Option Plan," and such
options, the "Rollover Options") upon the surrender and cancellation of the
agreements representing their SMARTs and delivery of an instrument substantially
in the form attached hereto as Exhibit E, by which such holder represents its
good title to such SMART and agrees to its cancellation upon the terms hereof
("SMART Cancellation Consent"). Each Rollover Option shall be an "incentive
stock option" within the meaning of Section 422(b) of the Code (the "qualified
options"). No interest shall accrue with respect to any of the SMARTs. Each
Rollover Option shall (i) be exercisable for that number of whole shares of
Xxxxxxx Common Stock equal to the product of the number of SMARTs held by such
holder immediately prior to the Effective Time multiplied by the greater of (x)
the quotient obtained by dividing (A) 405,000 by (B) the total number of SMARTs
issued and outstanding immediately prior to the Effective Time (the "SMART
Ratio"), and (y) the product of (A) the SMART Ratio and (B) the quotient
obtained by dividing (1) the lesser of (a) the Fair Market Value (defined below)
of the Xxxxxxx Common Stock as of the Effective Time, and (b) $20.00, by (2)
$13.50, and rounding the resulting number to the nearest whole number of shares
of the Xxxxxxx Common Stock, (ii) be vested or vest with respect to 20% of the
shares underlying such option on each anniversary of the original date of grant
of the corresponding SMARTs, and be fully vested upon the fifth anniversary of
the original date of grant of the corresponding SMARTs, (iii) have a per share
exercise price equal to the greater of (x) Fair Market Value (defined below) of
the Xxxxxxx Common Stock as of the Effective Time, and (y) $13.50, and (iv)
otherwise be in substantially the form customarily used for option grants under
the Xxxxxxx Option Plan. In the event that any holder of SMARTs shall not have
executed a SMART Cancellation Consent prior to the Effective Time, such SMART
shall remain outstanding and be an obligation of the Surviving Corporation. In
addition, at the Effective Time, Xxxxxxx shall issue non-qualified options to
purchase 167,500 shares of the Xxxxxxx Common Stock under the Xxxxxxx Option
Plan to Xxxx X. Xxxxxx and non-qualified options to purchase 55,833 shares of
Xxxxxxx Common Stock under the Xxxxxxx Option Plan to each of Xxxx X. Xxxxxx,
Xxxxxxx X. Xxxx and Xxxxxx Xxxxxxxx (the "New Options"). Each New Option will
(i) vest with respect to 20% of the shares underlying such option on each
anniversary of the date of grant and be fully vested upon the fifth anniversary
of the date of grant and (ii) have a per share exercise price equal to the
greater of (x) Fair Market Value of the Xxxxxxx Common Stock as of the Effective
Time, and (y) $13.50. The parties acknowledge that, pursuant to the terms of the
Xxxxxxx Option Plan, each of Xxxx X. Xxxxxx, Xxxx X. Xxxxxx, Xxxxxxx X. Xxxx and
the Independent Director shall be granted non-qualified options to purchase
20,000 shares of Xxxxxxx Common Stock on the fifth day following the Closing
Date (the "Director Options") in addition to the New
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Options. Each Director Option will (i) vest with respect to 20% of the shares
underlying such option on each anniversary of the date of grant and be fully
vested upon the fifth anniversary of the date of grant and (ii) have an exercise
price per share equal to Fair Market Value of the Xxxxxxx Common Stock as of the
date of grant. Xxxxxxx shall reserve for issuance the number of shares of
Xxxxxxx Common Stock that will become issuable upon the exercise of such
Rollover Options, New Options and the Director Options pursuant to this Section
2.2(e) and shall cause a valid registration statement (such as Form S-8 or other
appropriate form) to be in effect to cover the issuance of shares of Xxxxxxx
Common Stock upon the exercise of the Rollover Options, the New Options and the
Director Options (the "Option Registration Statement"). Xxxxxxx shall seek
stockholder approval to the extent required to reserve additional shares for
issuance upon the exercise of that number of Rollover Options, New Options and
Director Options, in the aggregate, in excess of the total number of shares
available for issuance under the Xxxxxxx Option Plan as of the date hereof (the
"Xxxxxxx Option Approval"). For the purposes of this section, "Fair Market
Value" on any given date means the last reported sale price at which Xxxxxxx
Common Stock is traded on the date immediately preceding such given date or, if
no Xxxxxxx Common Stock is traded on such date, the next preceding date on which
Xxxxxxx Common Stock was traded, as reflected on the principal stock exchange
or, if applicable, any other national stock exchange on which the Xxxxxxx Common
Stock is traded or admitted to trading.
(f) All Merger Consideration issued or paid, as the case may
be, upon the surrender for exchange of Certificates representing shares of RMSI
Common Stock in accordance with the terms of this Article 2 shall be deemed to
have been issued (and paid) in full satisfaction of all rights pertaining to the
shares of RMSI Common Stock exchanged for Merger Consideration theretofore
represented by such Certificates.
2.3 Lost or Stolen Certificates. In the event any Certificate shall
have been lost, stolen or destroyed, upon the making of an affidavit of that
fact by the person claiming such Certificate to be lost, stolen or destroyed
and, if required by Xxxxxxx, the posting by such person of a bond in such
reasonable amount as Xxxxxxx may direct as indemnity against any claim that may
be made against it with respect to such Certificate, Xxxxxxx will issue in
exchange for such lost, stolen or destroyed Certificate the Merger Consideration
to which such person is entitled under Section 2.2(a).
2.4 Dissenters' Rights.
(a) Subject to the RMSI Voting Agreement, notwithstanding
anything in this Agreement to the contrary and unless otherwise provided by
applicable law, shares of RMSI Common Stock that are issued and outstanding
immediately prior to the Effective Time and that are owned by RMSI Stockholders
who in accordance with Section 262 of the DGCL have properly exercised and
perfected their rights of appraisal, shall not be converted into the right to
receive the Merger Consideration, unless and until such RMSI Stockholders shall
have failed to perfect or shall have effectively withdrawn or lost their right
of appraisal and payment under applicable law. If any such RMSI Stockholder
shall have failed to perfect or shall have
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effectively withdrawn or lost such right of appraisal, each share of RMSI Common
Stock held by such RMSI Stockholder shall thereupon be deemed to have been
converted into the right to receive and become exchangeable for, at the
Effective Time, the Merger Consideration pursuant to Section 2.2 hereof. Holders
of shares of RMSI Common Stock who become entitled pursuant to the provisions of
the DGCL to payment for such shares under the provisions thereof shall receive
payment from the Surviving Corporation and such shares shall be canceled.
(b) RMSI shall give Xxxxxxx (i) prompt notice of any demands
for appraisal received by RMSI, withdrawals of such demands, and any other
instruments served in connection with such demands pursuant to the DGCL and
received by RMSI and (ii) the opportunity to direct all negotiations and
proceedings with respect to demands for appraisal under the DGCL consistent with
the obligations of RMSI thereunder. RMSI shall not, except with the prior
written consent of Xxxxxxx, (x) make any payment with respect to any demands for
appraisal, (y) offer to settle or settle any such demands or (z) waive any
failure to timely deliver a written demand for appraisal in accordance with the
DGCL.
ARTICLE 3. REPRESENTATIONS AND WARRANTIES OF RMSI
As a material inducement to Xxxxxxx to enter into this Agreement and
consummate the transactions contemplated hereby, except as set forth in the
disclosure letter delivered at or prior to the execution hereof to Xxxxxxx (the
"RMSI Disclosure Letter"), RMSI hereby represents and warrants to Xxxxxxx as
follows; provided, however, that (i) none of the representations and warranties
contained in this Article 3 reflect any matter relating to any of the entities,
assets, businesses or operations acquired or to be acquired by RMSI or any RMSI
Subsidiary in connection with any of the pending or completed acquisitions
disclosed on Schedule 6.2(a)(xiii) hereto (the "RMSI Acquisition Matters") and
(ii) no RMSI Acquisition Matter will in any event constitute or be deemed to
constitute a breach of any of the representations or warranties contained in
this Article 3.
3.1 Existence; Good Standing; Authority; Compliance With Law.
(a) RMSI is a corporation duly incorporated, validly existing
and in good standing under the laws of the State of Delaware. RMSI is duly
licensed or qualified to do business as a foreign corporation and is in good
standing under the laws of any other state of the United States in which the
character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so licensed or qualified could not have a material adverse effect
on the combined business, assets, results of operations or financial condition
of RMSI and the RMSI Subsidiaries taken as a whole (a "RMSI Material Adverse
Effect"). RMSI has all requisite corporate power and authority to own, operate,
lease and encumber its properties and carry on its business as now conducted or
proposed to be conducted.
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(b) Each RMSI Subsidiary is a corporation or partnership duly
incorporated or organized, validly existing and in good standing under the laws
of its jurisdiction of incorporation or organization, has the corporate or
partnership power and authority to own its properties and to carry on its
business as it is now being conducted or proposed to be conducted, and, is duly
qualified to do business and is in good standing in each jurisdiction in which
the ownership of its property or the conduct of its business requires such
qualification, except for jurisdictions in which such failure to be so qualified
or to be in good standing would not have a RMSI Material Adverse Effect. Except
as set forth in Section 3.1(b) of the RMSI Disclosure Letter, all of the
outstanding shares of capital stock of, or partnership or other equity interests
in, each RMSI Subsidiary are owned beneficially and of record by RMSI free of
any lien, restriction or encumbrance and such shares, partnership interests or
other equity interests have been duly and validly issued and are outstanding,
fully paid and non-assessable. Except as set forth in Section 3.1(b) of the RMSI
Disclosure Letter, there are no outstanding options, warrants, rights,
commitments, preemptive rights or agreements of any kind for the issuance or
sale of, or outstanding securities convertible into, any additional shares of
capital stock of any class, or partnership or other equity interests in, any of
the RMSI Subsidiaries, or outstanding warrants, options or other rights to
acquire any such convertible securities.
(c) Copies of the certificate of incorporation or other
charter documents and bylaws (and in each case, all amendments thereto) of RMSI
as they exist on the date hereof have been delivered or made available to
Xxxxxxx and its counsel. All such copies are true, correct and complete and no
amendments thereto are pending. None of RMSI or any of the RMSI subsidiaries are
in violation of their respective certificates of incorporation or bylaws.
3.2 Authorization, Validity and Effect of Agreements. RMSI has the
requisite power and authority to enter into the transactions contemplated hereby
and to execute and deliver this Agreement and the Xxxxxxx Voting Agreement. The
Board of Directors of RMSI has unanimously approved and declared advisable this
Agreement, the Merger, and the other documents and transactions contemplated by
this Agreement. The execution by RMSI of this Agreement and the Xxxxxxx Voting
Agreement and the consummation of the transactions contemplated by this
Agreement and the Xxxxxxx Voting Agreement have been duly authorized by all
requisite corporate action on the part of RMSI and no other action on the part
of RMSI is required in connection therewith (except for stockholder approval).
This Agreement and the Xxxxxxx Voting Agreement constitute the valid and legally
binding obligations of RMSI, enforceable against RMSI, in accordance with their
respective terms. The execution, delivery and performance by RMSI of this
Agreement and each such agreement, document and instrument
(a) does not and will not violate any provision of the
certificate of incorporation or bylaws of RMSI, as applicable;
(b) does not and will not violate any laws of the United
States, or any state or other jurisdiction applicable to RMSI or require RMSI to
obtain any approval, consent or waiver of, or make any filing with, any person
or entity (governmental or otherwise) that has
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not been obtained or made, except for the filing of the Certificate of Merger
with the Secretary of State of Delaware and except as contemplated by Section
6.13 of this Agreement; and
(c) except as set forth in Section 3.2 of the RMSI Disclosure
Letter, does not and will not (A) result in a breach of, constitute a default
under, accelerate any obligation under, or give rise to a right of termination
of any indenture or loan or credit agreement or any other material agreement,
contract, instrument, mortgage, lien, lease, permit, authorization, order, writ,
judgment, injunction, decree, determination or arbitration award to which RMSI
is a party or by which the property of RMSI is bound or affected, except for
such breaches, defaults, accelerations or rights of termination which,
individually or in the aggregate, could not reasonably be expected to have a
RMSI Material Adverse Effect or hinder the consummation of the transaction
contemplated by this Agreement, or (B) result in the creation or imposition of
any mortgage, pledge, lien, security interest or other charge or encumbrance on
any of RMSI's assets or its capital stock.
3.3 Capital Stock of RMSI. The authorized capital stock of RMSI
consists of 1,000,000 shares of RMSI Common Stock of which 137,635 shares are
issued and outstanding and no shares are held in treasury. The authorized
capital stock of RMSI does not include any preferred stock. As of the date
hereof, all of the outstanding shares of RMSI Common Stock have been duly and
validly issued and are fully paid and non-assessable. Except as disclosed in
Section 3.3 of the RMSI Disclosure Letter, there are no outstanding options,
warrants, rights, commitments, preemptive rights or agreements of any kind for
the issuance or sale by RMSI of, or outstanding securities convertible into, any
additional shares of capital stock of any class of RMSI or outstanding warrants,
options or other rights to acquire any such convertible securities or stock
appreciation rights or other instrument whose value is derived from the capital
stock of RMSI, except for that certain warrant dated October 7, 1997 and held by
Xxxxxxx X. Xxxxxxxx (the "Xxxxxxxx Warrant"). Except as set forth in Section 3.3
of the RMSI Disclosure Letter, there are no voting trusts, voting agreements,
proxies or other agreements, instruments or undertakings with respect to the
voting of RMSI Common Stock to which RMSI or, to RMSI's knowledge, any of its
stockholders is a party. The RMSI Stockholders own of record all of the issued
and outstanding shares of capital stock of RMSI, in the amounts set forth in
Section 3.3 of the RMSI Disclosure Letter, except for the Xxxxxxxx Warrant.
3.4 Real Property.
(a) Title. RMSI and each of the RMSI Subsidiaries has good,
clear, record and marketable title to all of the real property owned by RMSI or
any of the RMSI Subsidiaries (referred to in this Section as the "Owned Real
Property"), free and clear of all easements, covenants, restrictions, leases,
mortgages, liens, assessments, claims, rights, judgments, encroachments or other
matters affecting title (collectively, "Encumbrances"), other than:
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(i) easements, covenants, restrictions and
similar encumbrances that do not materially
interfere with the use of the Owned Real
Property as currently used and improved,
(ii) minor encroachments that do not materially
adversely affect the value or use of the
Owned Real Property as currently used and
improved and that could be removed without
material cost, and
(iii) liens for Taxes (as defined in Section 3.10)
not yet due or delinquent or being contested
in good faith by appropriate means and
statutory liens arising in the ordinary
course of business by operation of law that
are not yet due or delinquent.
((i), (ii) and (iii) are collectively referred to as "Permitted Encumbrances"),
except as set forth in Section 3.4 of the RMSI Disclosure Letter. To the
knowledge of RMSI, the lessors of all of the real property leased by RMSI or any
of the RMSI Subsidiaries (referred to in this Section as the "Leased Real
Property", and together with the Owned Real Property, the "Real Property") have
good, clear, record and marketable title to the Leased Real Property, and RMSI
and the RMSI Subsidiaries have good, clear, record and marketable title to
enforceable leasehold interests in the Leased Real Property, in each case free
and clear of all Encumbrances other than Permitted Encumbrances, subject only to
the right of reversion of the lessor, except as set forth in Section 3.4 of the
RMSI Disclosure Letter.
(b) Status of Leases. Each of the leases of the Real Property
has been duly authorized and executed by RMSI and is in full force and effect,
except where the failure to be so would not have an RMSI Material Adverse
Effect. To the knowledge of RMSI, each of said leases has been duly authorized
and executed by the other party to each of said leases. Neither RMSI nor any of
the RMSI Subsidiaries is in default under any material provision of any such
said lease, nor has any event occurred which, with notice or the passage of
time, or both, would give rise to such a default. To the knowledge of RMSI, the
other party to each of said leases is not in default under any material
provision of any such lease and there is no event which, with notice or the
passage of time, or both, would give rise to such a default.
(c) Consents. Except as set forth in Section 3.4 of the RMSI
Disclosure Letter, (i) no consent or approval is required with respect to the
transactions contemplated by this Agreement from the other parties to any lease
of Leased Real Property, from the holder of any Encumbrance on any Owned Real
Property, and (ii) no filing with any regulatory authority is required in
connection with the Real Property, and to the extent that any such consents,
approvals or filings are required, RMSI will use commercially reasonable efforts
to obtain or complete them before the Closing.
(d) Condition of Real Property. Except as set forth in Section
3.4 of the RMSI Disclosure Letter, there are no material defects in the physical
condition of any land, buildings or improvements constituting part of the Real
Property, including without limitation,
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structural elements, mechanical systems, parking and loading areas, and all such
buildings and improvements are in good operating condition and repair.
(e) Compliance with the Law. To the best of RMSI's knowledge,
neither RMSI nor any RMSI Subsidiary has received any notice from any
governmental authority of any violation of any law, ordinance, regulation,
license, permit or authorization issued with respect to any Real Property and no
such violation exists, in either case, which could reasonably be expected to
have a RMSI Material Adverse Effect. All improvements located on or constituting
part of the Real Property and their use and operation by RMSI and the RMSI
Subsidiaries are in compliance in all material respects with all applicable
laws, ordinances, regulations, licenses, permits and authorizations, except as
set forth in Section 3.4 of the RMSI Disclosure Letter. No approval or consent
to the transactions contemplated by this Agreement is required of any
governmental authority with jurisdiction over any aspect of the Real Property or
its use or operations, except where the failure to obtain such approval or
consent would not have a RMSI Material Adverse Effect. Neither RMSI nor any RMSI
Subsidiary has received any notice of any material real estate tax deficiency or
assessment which has not been satisfied or is aware of any proposed material
deficiency, claim or assessment with respect to any of the Real Property, or any
pending or threatened condemnation thereof.
3.5 Contracts. Except as set forth in Section 3.5 of the RMSI
Disclosure Letter, neither RMSI nor any of the RMSI Subsidiaries is in default
under any RMSI Material Contract or has any knowledge of conditions or facts
which, with notice or the passage of time, or both, would give rise to such a
default, except for such defaults which, individually or in the aggregate, could
not reasonably be expected to have a RMSI Material Adverse Effect. To the
knowledge of RMSI, no third party under any RMSI Material Contract is in default
thereunder and there is no event which, with notice or the passage of time, or
both, would give rise to such a default. Except as set forth in Section 3.5 of
the RMSI Disclosure Letter, each RMSI Material Contract has been duly authorized
and executed by RMSI, is in full force and effect and is enforceable by RMSI in
accordance with its terms, except where the failure to be so would not have an
RMSI Material Adverse Effect. For purposes of this Agreement, the term "RMSI
Material Contract" shall include the following:
(a) any plan or contract providing for bonuses, pensions,
options, stock purchases, deferred compensation, retirement payments, profit
sharing, collective bargaining or the like, or any contract or agreement with
any labor union;
(b) any employment contract or contract for services which is
not terminable within 30 days by RMSI or an RMSI Subsidiary without liability
for any penalty or severance payment;
(c) any contract or agreement under which, as of the date of
this Agreement, RMSI or any of the RMSI Subsidiaries has unpaid obligations of
$100,000 or more, except contracts and agreements specifically disclosed
elsewhere under this Agreement;
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(d) any contract or agreement involving more than $100,000 of
unpaid obligations of RMSI or any of the RMSI Subsidiaries as of the date of
this Agreement which, by its terms, does not terminate or is not terminable
without penalty by RMSI or an RMSI Subsidiary or their successors within one
year after the date hereof;
(e) any contract or agreement for the sale or lease of its
products or services not made in the ordinary course of business;
(f) any contract containing covenants limiting the freedom of
RMSI or any of the RMSI Subsidiaries to compete in any line of business or with
any person or entity other than as is standard in the food brokerage industry;
(g) any contract or agreement for the purchase of any fixed
asset for a price in excess of $100,000 whether or not such purchase is in the
ordinary course of business;
(h) any license agreement (as licensor or licensee);
(i) any indenture, mortgage, promissory note, loan agreement,
guaranty or other agreement or commitment for the borrowing of money not
otherwise disclosed in the RMSI SEC Report (including, if applicable, a
description on any prepayment penalties or similar obligations); or
(j) any contract or agreement with any officer, employee,
director or stockholder of RMSI or any of the RMSI Subsidiaries or with any
persons or organizations controlled by or affiliated with any of them.
3.6 Transactions with Interested Persons. Except as disclosed in the
RMSI SEC Report (as hereinafter defined) or as set forth in Section 3.6 of the
RMSI Disclosure Letter hereto, neither RMSI, nor any affiliate of RMSI, (i) owns
directly or indirectly on an individual or joint basis any material interest in,
or serves as an officer or director or in another similar capacity of, any
competitor or supplier of RMSI or any of the RMSI Subsidiaries, or any
organization which has a material contract or arrangement with RMSI or any of
the RMSI Subsidiaries or (ii) has directly or indirectly engaged in any
transaction involving any lease or transfer any material (measured at the time
of such transaction or as of the date hereof) cash, property or rights to or
from RMSI or any of the RMSI Subsidiaries from, to or for the benefit of any
affiliate of RMSI or any of the RMSI Subsidiaries.
3.7 Employee Benefit Programs.
(a) Section 3.7 of the RMSI Disclosure Letter sets forth a
list of every material and significant Employee Program that is currently
maintained by RMSI or an Affiliate of RMSI ("RMSI Affiliate") ("RMSI Employee
Programs").
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(b) Each RMSI Employee Program which has been intended to
qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable
determination or approval letter from the IRS regarding its qualification under
such section and except as disclosed in Section 3.7 of the RMSI Disclosure
Letter has, in fact, been qualified under the applicable section of the Code
from the effective date of such RMSI Employee Program through and including the
Closing Date (or, if earlier, the date that such RMSI Employee Program was
terminated). No event or omission has occurred which would cause any such
Employee Program to lose its qualification under the applicable Code section.
(c) Neither RMSI nor any RMSI Affiliate knows, nor should any
of them reasonably know, of any material failure of any party to comply with any
laws applicable with respect to the RMSI Employee Programs. With respect to any
RMSI Employee Program, there has been no (i) "prohibited transaction," as
defined in Section 406 of the Employee Retirement Income Security Act of 1974,
as amended ("ERISA") or Code Section 4975, (ii) material failure to comply with
any provision of ERISA, other applicable law, or any agreement, or (iii)
non-deductible contribution, which, in the case of any of (i), (ii), or (iii),
could subject RMSI or any RMSI Affiliate to material liability either directly
or indirectly (including, without limitation, through any obligation of
indemnification or contribution) for any damages, penalties, or taxes, or any
other loss or expense. No litigation or governmental administrative proceeding
(or investigation) or other proceeding (other than those relating to routine
claims for benefits) is pending or, to the knowledge of RMSI, threatened with
respect to any such RMSI Employee Program.
(d) Except as disclosed in Section 3.7 of the RMSI Disclosure
Letter, during the last 3 years, neither RMSI nor any RMSI Affiliate (i) has
maintained any Employee Program which has been subject to title IV of ERISA or
Code Section 412 (a "RMSI Title IV Plan"), including, but not limited to, any
Multiemployer Plan, (ii) has provided health care or any other non-pension
benefits to any employees after their employment is terminated (other than as
required by part 6 of subtitle B of title I of ERISA), or has promised to
provide such post- termination benefits, for a period of longer than 12 months
or (iii) has provided health care or any other non-pension benefits to any
individuals who were previously employed by entities acquired by RMSI prior to
the date of this Agreement for a period of longer than 12 months.
(e) With respect to each RMSI Employee Program, complete and
correct copies of the following documents (if applicable to such RMSI Employee
Program) have previously been delivered or made available to Xxxxxxx: (i) all
documents embodying or governing such RMSI Employee Program, and any funding
medium for the RMSI Employee Program (including, without limitation, trust
agreements) as they may have been amended to the date hereof; (ii) the most
recent IRS determination or approval letter with respect to such RMSI Employee
Program under Code Section 401(a) or 501(c)(9), and any applications for
determination or approval subsequently filed with the IRS; (iii) the three most
recently filed IRS Forms 5500, with all applicable schedules and accountants'
opinions attached thereto; (iv) the three most recent actuarial valuation
reports completed with respect to such RMSI Employee Program; (v) the summary
plan description for such RMSI Employee Program (or other descriptions of such
RMSI Employee Program provided to employees) and all modifications
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thereto; (vi) any insurance policy (including any fiduciary liability insurance
policy or fidelity bond) related to such RMSI Employee Program; (vii) any
registration statement or other filing made pursuant to any federal or state
securities law and (viii) all correspondence to and from any state or federal
agency within the last three years.
(f) Each RMSI Employee Program may be amended, terminated, or
otherwise modified by RMSI to the greatest extent permitted by applicable law,
including the elimination of any and all future benefit accruals under any RMSI
Employee Program and no condition exists which would limit the right of RMSI or
the RMSI Affiliate to so amend, terminate or otherwise modify such RMSI Employee
Program.
(g) For purposes of this Section and Section 5.7:
(i) "Employee Program" means (A) all employee benefit
plans within the meaning of ERISA Section 3(3), including, but not limited to,
multiple employer welfare arrangements (within the meaning of ERISA Section
3(40)), plans to which more than one unaffiliated employer contributes and
employee benefit plans (such as foreign or excess benefit plans) which are not
subject to ERISA; and (B) material stock option or equity-based plans, bonus or
incentive award plans, severance pay policies or agreements, deferred
compensation agreements, supplemental income arrangements, vacation plans, and
all other material employee benefit plans, agreements, and arrangements not
described in (A) above, including without limitation, any arrangement intended
to comply with Section 120, 125, 127 or 129 of the Code. In the case of an
Employee Program funded through a trust described in Code Section 401(a) or an
organization described in Code Section 501(c)(9), each reference to such
Employee Program shall include a reference to such trust or organization.
(ii) An entity "maintains" an Employee Program if
such entity sponsors, contributes to, or provides benefits under such Employee
Program, or has any obligation (by agreement or under applicable law) to
contribute to or provide benefits under such Employee Program, or if such
Employee Program provides benefits to or otherwise covers employees of such
entity (or their spouses, dependents, or beneficiaries).
(iii) An entity is an "Affiliate" of a person if it
would have ever been considered a single employer under ERISA Section 4001(b) or
part of the same "controlled group" as such person for purposes of ERISA Section
302(d)(8)(C).
(iv) "Multiemployer Plan" means a (pension or
non-pension) employee benefit plan to which more than one unaffiliated employer
contributes and which is maintained pursuant to one or more collective
bargaining agreements.
(h) No liability under Title IV or Section 302 of ERISA has
been incurred by RMSI or any RMSI Affiliate that has not been satisfied in full
and no condition exists that presents a material risk to RMSI or any RMSI
Affiliate of incurring any such liability, other than
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liability for premiums due to the Pension Benefit Guaranty Corporation (the
"PBGC") (which premiums have been paid when due).
(i) The PBGC has not instituted proceedings to terminate any
RMSI Title IV Plan and no condition exists that presents a material risk that
such proceedings will be instituted.
(j) With respect to each RMSI Title IV Plan, the present value
of accrued benefits under such plan, based upon the actuarial assumptions used
for funding purposes in the most recent actuarial report prepared by such plan's
actuary with respect to such plan, did not exceed, as of its latest valuation
date, the then current value of the assets of such plan allocable to such
accrued benefits.
(k) No RMSI Title IV Plan or any trust established there under
has incurred any "accumulated funding deficiency" (as defined in Section 302 of
ERISA and Section 412 of the Code), whether or not waived, as of the last day of
the most recent fiscal year of each RMSI Title IV Plan ended prior to the
Closing Date.
(l) No amounts payable under the RMSI Employee Programs will
fail to be deductible for federal income tax purposes by virtue of Section
162(a)(1), 162(m) or 280G of the Code.
3.8 Intentionally Omitted
3.9 No Payments to Employees, Officers and Directors. Section 3.9 of
the RMSI Disclosure Letter contains a true and complete list of all
arrangements, agreements or plans pursuant to which any cash or non-cash
payments or other obligation will become payable, accelerate the time of payment
or vesting or increase any amount currently payable (and the maximum aggregate
amount which may be payable thereunder) to each employee, officer or director of
RMSI or any RMSI Subsidiary as a result of the Merger (assuming no termination
of service).
3.10 Taxes. Except as set forth in Section 3.10 of the RMSI Disclosure
Letter:
(a) RMSI and each of the RMSI Subsidiaries have timely filed
all income and other material Tax Returns required to be filed by them through
the date hereof in a manner correct and complete in all material respects and
have timely paid or caused to be paid all Taxes shown as due on such Tax Returns
and all income and other material Taxes otherwise required to be paid by them
through the date hereof whether disputed or not.
(b) On or before the Closing Date, RMSI and each of the RMSI
Subsidiaries shall have paid all income and other material Taxes (whether or not
shown on any Tax Return) required to be paid by them on or before the Closing
Date whether disputed or not and shall have accrued or made full, adequate and
complete provision on their books as required by U.S. generally accepted
accounting principles ("GAAP") for all income and other material Taxes
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(whether or not shown on any Tax Return) not required to be paid by them on or
before the Closing Date.
(c) No Tax Authority is now asserting or, to the best
knowledge of RMSI, threatening to assert against RMSI or any of the RMSI
Subsidiaries any deficiency or claim for Taxes. No claim for unpaid income taxes
or for other unpaid material Taxes has become a lien or encumbrance of any kind
against any material asset of RMSI or any of the RMSI Subsidiaries except for
statutory liens for such Taxes that are not yet due. Neither RMSI nor any of the
RMSI Subsidiaries has entered into a closing agreement pursuant to Section 7121
of the Code after December 31, 1990.
(d) RMSI and the RMSI Subsidiaries have previously delivered
or made available to Xxxxxxx complete and accurate copies of (1) all audit
reports, revenue agent reports, requests for letter rulings, letter rulings,
technical advice memoranda and similar documents issued by all Tax Authorities
relating to Taxes, (2) all income Tax Returns filed by RMSI or any of the RMSI
Subsidiaries with respect to taxable periods beginning after December 31, 1990
and (3) any closing agreements (and any exhibits thereto) entered into by RMSI
or any of the RMSI Subsidiaries as of the date hereof. RMSI will deliver or make
available to Xxxxxxx any documents mentioned in the preceding sentence that
become available to RMSI or any of the RMSI Subsidiaries after the date hereof
and on or before the Closing Date.
(e) There has not been any audit of any tax return filed by
RMSI or any of the RMSI Subsidiaries with respect to any taxable year beginning
after December 31, 1990, no such audit is in progress, and neither RMSI nor any
of the RMSI Subsidiaries has been notified by any Tax Authority that any such
audit is contemplated or pending. Neither RMSI nor any of the RMSI Subsidiaries
has requested or received an extension of time with respect to any date on which
a tax return was or is to be filed by RMSI or any of the RMSI Subsidiaries and
there is no extension, waiver or agreement for the extension of time for the
assessment or payment of any Taxes owed (or alleged to be owed) by RMSI or any
of the RMSI Subsidiaries.
(f) No power of attorney has been granted by or with respect
to RMSI or any of the RMSI Subsidiaries with respect to any matter relating to
Taxes.
(g) There are no agreements or understandings relating to
Taxes between RMSI or any of the RMSI Subsidiaries and any other party affecting
or which could affect RMSI or any of the RMSI Subsidiaries by which RMSI or any
of the RMSI Subsidiaries will be bound after the Closing Date or which could
affect the computation of Taxes by RMSI or any of the RMSI Subsidiaries.
(h) For purposes of this Agreement, all references (1) to the
"Code" shall include any similar provisions of state, local or foreign law, (2)
"Taxes" shall include all federal, state, local, foreign, and other taxes,
including without limitation, income taxes, estimated taxes, alternative minimum
taxes, excise taxes, sales taxes, use taxes, value-added taxes, gross receipts
taxes, franchise taxes, capital stock taxes, employment and payroll-related
taxes, withholding taxes, stamp taxes, transfer taxes, windfall profit taxes,
environmental taxes and
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property taxes, whether or not measured in whole or in part by net income, and
all deficiencies, interest, fines, penalties and other additions to tax, (3)
"Tax Returns" shall mean all returns, reports, declarations, information,
estimates, schedules, filings and documents (including any related or supporting
information) filed or required by any Tax Authority to be filed with respect to
Taxes, including, without limitation, all information returns, claims for
refund, amended returns, declarations of estimated tax and requests for
extensions of time to file any item described in this paragraph, and (4) "Tax
Authority" shall mean the Internal Revenue Service and any other state, local or
foreign governmental authority responsible for the collection or administration
of Taxes.
3.11 Tax-Free Treatment. Neither RMSI nor any of the RMSI Subsidiaries
has taken or caused to be taken any action which would cause the Merger to fail
to qualify as a Reorganization under Section 368(a) of the Code.
3.12 Proxy Statement. On the date the Proxy Statement (as defined in
Section 6.7 hereof) is mailed to Xxxxxxx'x stockholders, none of the information
supplied in writing by or on behalf of RMSI for inclusion in the Proxy Statement
will be false or misleading with respect to any material fact or will omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading or necessary to correct any statement in any earlier
communication with respect to the stockholders' meeting or the solicitation of
proxies therefore which has become false or misleading. Notwithstanding the
foregoing, RMSI makes no representation or warranty with respect to information
supplied by Xxxxxxx or any of its affiliates or representatives in writing for
inclusion in the Proxy Statement.
3.13 SEC Documents. As of its date of filing, RMSI's registration
statement on Form S-4, as amended by Amendment No. 1, in the form filed with the
SEC on April 20, 1999 (the "RMSI SEC Report"), except as disclosed in Section
3.13 of the RMSI Disclosure Letter, did not contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements made therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that the parties
hereto acknowledge that the RMSI SEC Report does not contain any information or
disclosure relating to this Agreement and the transactions contemplated thereby,
including the Merger. There is no material fact existing today directly relating
to the business, operations or condition of RMSI (other than facts which relate
to general economic trends or conditions or general conditions affecting the
industries in which RMSI or the RMSI Subsidiaries operate) that is reasonably
likely to have a RMSI Material Adverse Effect, that has not been set forth in
the RMSI SEC Report or the RMSI Disclosure Letter; provided that the loss of, or
a reduction in revenues from, one or more customers or principals shall be
deemed not to have a RMSI Material Adverse Effect; provided, further, that,
notwithstanding the foregoing proviso, a loss of, or reduction in revenues from,
any customers or principals, individually or in the aggregate, which results in
a reduction in the annual revenues of RMSI and Xxxxxxx taken on a consolidated
pro forma basis of more than $25 million (a "Material Customer Loss"), shall be
deemed to have an RMSI Material Adverse Effect. For the purpose of determining a
Material Customer Loss,
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annual revenues, shall mean commission revenues plus gross margin on sales with
respect to businesses in which sales are accounted for in a manner other than
commission revenues. A true and complete copy of the RMSI SEC Report has been
delivered to Xxxxxxx. Each of the consolidated balance sheets of RMSI included
in or incorporated by reference into the RMSI SEC Report (including the related
notes and schedules) fairly presents the consolidated financial position of RMSI
and RMSI Subsidiaries as of its date and each of the consolidated statements of
income, retained earnings and cash flows of RMSI included in or incorporated by
reference into the RMSI SEC Report (including any related notes and schedules)
fairly presents the results of operations, retained earnings or cash flows, as
the case may be, of RMSI and the RMSI Subsidiaries for the periods set forth
therein (subject, in the case of unaudited statements, to normal year-end audit
adjustments which would not be material in amount or effect), in each case in
accordance with generally accepted accounting principles consistently applied
during the periods involved, except, in the case of the unaudited statements, as
permitted by Form 10-Q pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act").
3.14 No Brokers. Except as disclosed in Section 3.14 of the RMSI
Disclosure Letter, neither RMSI nor any RMSI Subsidiary has entered into any
contract, arrangement or understanding with any person or firm which may result
in the obligation of such entity, RMSI or Xxxxxxx to pay any finder's fees,
brokerage or agent's commissions, advisory fee or other like payments relating
to or in connection with the negotiations leading to this Agreement or the
consummation of the transactions contemplated hereby.
3.15 Litigation. There is no litigation or governmental or
administrative proceeding, arbitration or investigation pending or, to the
knowledge of RMSI, threatened against RMSI or the RMSI Subsidiaries which,
either individually or in the aggregate, is reasonably likely to have an RMSI
Material Adverse Effect, or which would prevent or hinder the consummation of
the transactions contemplated by this Agreement.
3.16 Absence of Certain Changes. Except as disclosed in Section 3.16 of
the RMSI Disclosure Letter, since December 31, 1998, there has not been any
change in the financial condition, properties, assets, liabilities, business or
operations of RMSI, which change by itself or in conjunction with all other such
changes, whether or not arising in the ordinary course of business, has had a
RMSI Material Adverse Effect; provided that the loss of, or reduction in
revenues from, one or more customers or principals shall be deemed not to have a
RMSI Material Adverse Effect under any provision of this Agreement, unless the
loss of, or reduction in revenues from, such customers or principals,
individually or in the aggregate, constitute a Material Customer Loss;
3.17 Disclosure. Subject to the terms thereof, the representations,
warranties and statements contained or referred to in this Agreement and in the
certificates, exhibits and the RMSI Disclosure Letter delivered by RMSI pursuant
to this Agreement (including the RMSI SEC Report) to Xxxxxxx do not contain any
untrue statement of a material fact, and, when taken together, do not omit to
state a material fact required to be stated therein or necessary in
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order to make such representations, warranties or statements not misleading in
light of the circumstances under which they were made.
3.18 Undisclosed Liabilities. Except as and to the extent reflected,
reserved against or otherwise specifically disclosed in the RMSI SEC Report and
the RMSI Disclosure Letter, neither RMSI nor any RMSI Subsidiary has any
liabilities or obligations of any kind required to be disclosed in accordance
with GAAP applied on a basis consistent with past practice, whether accrued,
absolute, known or unknown, asserted or unasserted, contingent or otherwise
which could reasonably be expected to have, individually or in the aggregate, a
RMSI Material Adverse Effect.
3.19 Customers and Principals. Except as disclosed in Section 3.19 of
the RMSI Disclosure Letter, as of the date hereof, RMSI has no knowledge of (i)
any loss since December 31, 1998 or any currently threatened loss of any
material customer or principal, other than losses or threatened losses arising
out of, resulting from or relating to the execution or consummation of this
Agreement or the transactions contemplated thereby, or (ii) any pending
bankruptcy filing, insolvency or material adverse change in the financial
position of any material customer or principal.
3.20 Receivables. All of RMSI's accounts receivable arose from bona
fide transactions in the ordinary course of business, are valid and collectible
obligations of the respective makers thereof and were not and are not subject to
any offset or counter-claim, except for the amount reserved for doubtful
accounts set forth on (i) prior to the availability of RMSI's consolidated
unaudited financial statements for the quarter ended March 31, 1999, RMSI's
consolidated audited financial statements for the year ended December 31, 1998,
and (ii) after RMSI's consolidated unaudited financial statements for the
quarter ended March 31, 1999 become available, RMSI's consolidated unaudited
financial statements for the quarter ended March 31, 1999 (the "RMSI
Financials"). RMSI's accounts receivable are reflected on the RMSI Financials in
accordance with GAAP applied on a basis consistent with past practice. Since the
date of the RMSI Financials, there have not been any material write-offs as
uncollectible of any of RMSI's accounts receivable, except for write-offs in the
ordinary course of business and consistent with past practice.
3.21 Definition of RMSI's Knowledge. As used in this Agreement, the
phrase "to the knowledge of RMSI" or "to the best knowledge of RMSI" (or words
of similar import) means the actual knowledge of Xxxx X. Xxxxxx, Xxxxxxx X.
Xxxx, Xxxxxx X. Xxxxxxxx or Xxxxx X. Xxxxxx.
3.22 Ownership of Xxxxxxx Common Stock. Except as set forth in Section
3.22 of the RMSI Disclosure Letter, neither RMSI nor, to the knowledge of RMSI,
any RMSI Stockholder or any of their affiliates owns, beneficially or of record,
any shares of Xxxxxxx Common Stock, any option to acquire or sell any shares of
Xxxxxxx Common Stock, or any warrants, rights, commitments, preemptive rights or
agreements of any kind for the acquisition or sale of, any shares of Xxxxxxx
Common Stock, and is not a party to any voting trusts,
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voting agreement, proxies or other agreements, instruments or undertakings with
respect to the voting of Xxxxxxx Common Stock, except for the Post-Merger Voting
Agreement.
ARTICLE 4. INVESTMENT REPRESENTATIONS AND WARRANTIES OF THE RMSI STOCKHOLDERS
Each RMSI Stockholder hereby severally represents and warrants to
Xxxxxxx that with respect to such RMSI Stockholder's receipt of Xxxxxxx Common
Stock hereunder:
4.1 Investment Representations. Such RMSI Stockholder is acquiring the
Xxxxxxx Common Stock for its own account, for investment, and not with a view to
any "distribution" thereof within the meaning of the Securities Act. The
jurisdiction of residence of such RMSI Stockholder is the State of Texas and the
offer and sale of the Xxxxxxx Common Stock to such RMSI Stockholder will take
place in such jurisdiction. Such RMSI Stockholder is an "accredited investor" as
defined in the Securities Act and is knowledgeable and experienced in the making
of investments of the type involved in the acquisition of the Xxxxxxx Common
Stock pursuant to the Agreement, is able to bear the economic risk of loss of
its investment in Xxxxxxx, has been granted the opportunity to investigate the
affairs of Xxxxxxx and to ask questions of its officers and employees, and has
availed itself of such opportunity either directly or through its authorized
representative. Such RMSI Stockholder has received and reviewed a copy of this
Agreement and all exhibits, schedules and appendices hereto (including without
limitation the Xxxxxxx Disclosure Letter) as well as copies of the Xxxxxxx SEC
Report.
4.2 Registration. Such RMSI Stockholder understands that because the
Xxxxxxx Common Stock issued as part of the Merger Consideration has not been
registered under the Securities Act or securities or "blue sky" laws of any
jurisdiction, he cannot dispose of any or all of the shares of such Xxxxxxx
Common Stock unless such shares of Xxxxxxx Common Stock are subsequently
registered under the Securities Act or exemptions from such registration are
available. Such RMSI Stockholder acknowledges and understands that, except as
provided in the Registration Rights Agreement (as defined in Section 7.2(e)),
he, she or it has no independent right to require Xxxxxxx to register the
Xxxxxxx Common Stock. Such RMSI Stockholder further understands that Xxxxxxx
may, as a condition to the transfer of any of the Xxxxxxx Common Stock issued in
the Merger, require that the request for transfer be accompanied by an opinion
of counsel as described below. Such RMSI Stockholder understands that each
certificate representing the Xxxxxxx Common Stock issued in the Merger will bear
a legend in substantially the form provided below (in addition to any legend
required under applicable state securities laws).
THE SHARES REPRESENTED HEREBY HAVE BEEN ACQUIRED BY THE HOLDER
NAMED HEREON FOR HIS OWN ACCOUNT FOR INVESTMENT; AND SUCH
SECURITIES MAY NOT BE PLEDGED, SOLD OR IN ANY OTHER WAY
TRANSFERRED IN THE ABSENCE OF AN
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EFFECTIVE REGISTRATION STATEMENT FOR SUCH SECURITIES UNDER THE
SECURITIES ACT OF 1933, AS IN EFFECT AT THAT TIME, OR AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUER THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT.
4.3 Ownership of Xxxxxxx Common Stock. Except as set forth on Section
4.3 of the RMSI Disclosure Letter, neither such RMSI Stockholder nor any of his
or its respective family members or affiliates own, beneficially or of record,
any shares of Xxxxxxx Common Stock, any option to acquire or sell any shares of
Xxxxxxx Common Stock, or any warrants, rights, commitments, preemptive rights or
agreements of any kind for the acquisition or sale of, any shares of Xxxxxxx
Common stock, and is not a party to any voting trusts, voting agreement, proxies
or other agreements, instruments or undertakings with respect to the voting of
Xxxxxxx Common Stock, except for the Post-Merger Voting Agreement.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF XXXXXXX
As a material inducement to RMSI to enter into this Agreement and
consummate the transactions contemplated hereby, except as set forth in the
disclosure letter delivered at or prior to the execution hereof to RMSI (the
"Xxxxxxx Disclosure Letter"), Xxxxxxx hereby represents and warrants to RMSI as
follows; provided, however, that (i) none of the representations and warranties
contained in this Article 5 reflect any matter relating to any of the entities,
assets, businesses or operations acquired or to be acquired by Xxxxxxx or any
Xxxxxxx Subsidiary in connection with any of the pending or completed
acquisitions disclosed on Schedule 6.2(a)(xiii) hereto (the "Xxxxxxx Acquisition
Matters") and (ii) no Xxxxxxx Acquisition Matter will in any event constitute or
be deemed to constitute a breach of any of the representations or warranties
contained in this Article 5.
5.1 Existence; Good Standing; Authority; Compliance With Law.
(a) Xxxxxxx is a corporation duly incorporated, validly
existing and in good standing under the laws of the State of Delaware. Xxxxxxx
is duly licensed or qualified to do business as a foreign corporation and is in
good standing under the laws of any other state of the United States in which
the character of the properties owned or leased by it therein or in which the
transaction of its business makes such qualification necessary, except where the
failure to be so licensed or qualified could not have a material adverse effect
on the combined business, assets, results of operations or financial condition
of Xxxxxxx and the Xxxxxxx Subsidiaries taken as a whole (a "Xxxxxxx Material
Adverse Effect"). Xxxxxxx has all requisite corporate power and authority to
own, operate, lease and encumber its properties and carry on its business as now
conducted or proposed to be conducted.
(b) Each Xxxxxxx Subsidiary is a corporation or partnership
duly incorporated or organized, validly existing and in good standing under the
laws of its
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jurisdiction of incorporation or organization, has the corporate or partnership
power and authority to own its properties and to carry on its business as it is
now being conducted or proposed to be conducted, and, except as set forth on
Section 5.1 of the Xxxxxxx Disclosure Letter, is duly qualified to do business
and is in good standing in each jurisdiction in which the ownership of its
property or the conduct of its business requires such qualification, except for
jurisdictions in which such failure to be so qualified or to be in good standing
would not have a Xxxxxxx Material Adverse Effect. Except as set forth in Section
5.1(b) of the Xxxxxxx Disclosure Letter, all of the outstanding shares of
capital stock of, or partnership or other equity interests in, each Xxxxxxx
Subsidiary are owned beneficially and of record by Xxxxxxx free of any lien,
restriction or encumbrance and such shares, partnership interests or other
equity interests have been duly and validly issued and are outstanding, fully
paid and non-assessable. There are no outstanding options, warrants, rights,
commitments, preemptive rights or agreements of any kind for the issuance or
sale of, or outstanding securities convertible into, any additional shares of
capital stock of any class, or partnership or other equity interests in, any of
the Xxxxxxx Subsidiaries, or outstanding warrants, options or other rights to
acquire any such convertible securities.
(c) Copies of the certificate of incorporation or other
charter documents and by-laws (and in each case, all amendments thereto) of
Xxxxxxx as they exist on the date hereof have been delivered or made available
to RMSI and its counsel. All such copies are true, correct and complete and no
amendments thereto are pending. Xxxxxxx is not in violation of its certificate
of incorporation or bylaws.
5.2 Authorization, Validity and Effect of Agreements. Xxxxxxx has the
requisite power and authority to enter into the transactions contemplated hereby
and to execute and deliver this Agreement and the RMSI Voting Agreement. The
Board of Directors of Xxxxxxx has unanimously approved and declared advisable
this Agreement, the Merger, and the other documents and transactions
contemplated by this Agreement. A committee comprised of the independent
directors of the Board of Directors of Xxxxxxx (the "Special Committee") has
recommended to the Xxxxxxx Board of Directors the advisability of entering into
this Agreement. The execution by Xxxxxxx of this Agreement and the RMSI Voting
Agreement and the consummation of the transactions contemplated by this
Agreement and the RMSI Voting Agreement have been duly authorized by all
requisite corporate action on the part of Xxxxxxx and no other action on the
part of Xxxxxxx is required in connection therewith (except for stockholder
approval). Except for stockholder approval, Xxxxxxx has taken all actions
necessary to permit the Merger, this Agreement, the Voting Agreements and the
other documents, instruments and transactions contemplated by this Agreement to
be executed and consummated in accordance with and permitted by the provisions
of Section 203 of the DGCL, including, without limitation, the approval of the
Merger, this Agreement, the Voting Agreements and the other documents,
instruments and transactions contemplated by this Agreement by the Board of
Directors of Xxxxxxx prior the execution of this Agreement, the Voting
Agreements and the other documents, instruments and transactions contemplated by
this Agreement. This Agreement, the RMSI Voting Agreement and the other
documents contemplated by the Agreement constitute the valid and legally binding
obligations of Xxxxxxx, enforceable against
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Xxxxxxx, in accordance with their respective terms. The execution, delivery and
performance by Xxxxxxx of this Agreement and each such agreement, document and
instrument
(a) does not and will not violate any provision of the
certificate of incorporation or bylaws of Xxxxxxx, as applicable;
(b) does not and will not violate any laws of the United
States, or any state or other jurisdiction applicable to Xxxxxxx or require
Xxxxxxx to obtain any approval, consent or waiver of, or make any filing with,
any person or entity (governmental or otherwise) that has not been obtained or
made, except for the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware, a proxy statement with the U.S. Securities and
Exchange Commission and except as contemplated by Section 6.13 of this
Agreement; and
(c) except as set forth in Section 5.2 of the Xxxxxxx
Disclosure Letter, does not and will not (A) result in a breach of, constitute a
default under, accelerate any obligation under, or give rise to a right of
termination of any indenture or loan or credit agreement or any other material
agreement, contract, instrument, mortgage, lien, lease, permit, authorization,
order, writ, judgment, injunction, decree, determination or arbitration award to
which Xxxxxxx is a party or by which the property of Xxxxxxx is bound or
affected, except for such breaches, defaults, accelerations or rights of
termination which, individually or in the aggregate, could not reasonably be
expected to have a Xxxxxxx Material Adverse Effect or hinder the consummation of
the transaction contemplated by this Agreement, or (B) result in the creation or
imposition of any mortgage, pledge, lien, security interest or other charge or
encumbrance on any of Xxxxxxx'x assets or its capital stock.
5.3 Capital Stock of Xxxxxxx. The authorized capital stock of Xxxxxxx
consists of (i) 1,000,000 shares of preferred stock, par value $.01 per share,
of which none are outstanding, (ii) 50,000,000 shares of Xxxxxxx Common Stock of
which 7,172,300 shares are outstanding and no shares are held in treasury and
(iii) 4,000,000 shares of Restricted Common Stock of which 335,700 shares are
outstanding and no shares are held in treasury. As of the date hereof, all of
the outstanding shares of Xxxxxxx Common Stock have been duly and validly issued
and are fully paid and non-assessable. Except as disclosed in Section 5.3 of the
Xxxxxxx Disclosure Letter, there are no outstanding options, warrants, rights,
commitments, preemptive rights or agreements of any kind for the issuance or
sale by Xxxxxxx of, or outstanding securities convertible into, any additional
shares of capital stock of any class of Xxxxxxx or outstanding warrants, options
or other rights to acquire any such convertible securities or stock appreciation
rights or other instrument whose value is derived from the capital stock of
Xxxxxxx. Except as set forth in Section 5.3 of the Xxxxxxx Disclosure Letter,
there are no voting trusts, voting agreements, proxies or other agreements,
instruments or undertakings with respect to the voting of Xxxxxxx Common Stock
to which Xxxxxxx or, to Xxxxxxx'x knowledge, any of its stockholders is a party.
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5.4 Real Property
(a) Title. Xxxxxxx and each of the Xxxxxxx Subsidiaries has
good, clear, record and marketable title to all of the real property owned by
Xxxxxxx or any of the Xxxxxxx Subsidiaries (referred to in this Section as the
"Owned Real Property"), free and clear of all Encumbrances, other than Permitted
Encumbrances, except as set forth in Section 5.4 of the Xxxxxxx Disclosure
Letter. To the knowledge of Xxxxxxx, the lessors of all of the real property
leased by Xxxxxxx or any of the Xxxxxxx Subsidiaries (referred to in this
Section as the "Leased Real Property", and together with the Owned Real
Property, the "Real Property") have good, clear, record and marketable title to
the Leased Real Property, and Xxxxxxx and the Xxxxxxx Subsidiaries have good,
clear, record and marketable title to enforceable leasehold interests in the
Leased Real Property, in each case free and clear of all Encumbrances other than
Permitted Encumbrances, subject only to the right of reversion of the lessor,
except as set forth in Section 5.4 of the Xxxxxxx Disclosure Letter.
(b) Status of Leases. Each of the leases of the Real Property
has been duly authorized and executed by Xxxxxxx and is in full force and
effect, except where the failure to be so would not have a Xxxxxxx Material
Adverse Effect. To the knowledge of Xxxxxxx, each of said leases has been duly
authorized and executed by the other party to each of said leases. Neither
Xxxxxxx nor any of the Xxxxxxx Subsidiaries is in default under any material
provision of any such said lease, nor has any event occurred which, with notice
or the passage of time, or both, would give rise to such a default. To the
knowledge of Xxxxxxx, the other party to each of said leases is not in default
under any material provision of any such lease and there is no event which, with
notice or the passage of time, or both, would give rise to such a default.
(c) Consents. Except as set forth in Section 5.4 of the
Xxxxxxx Disclosure Letter, (i) no consent or approval is required with respect
to the transactions contemplated by this Agreement from the other parties to any
lease of Leased Real Property, from the holder of any Encumbrance on any Owned
Real Property, and (ii) no filing with any regulatory authority is required in
connection with the Real Property, and to the extent that any such consents,
approvals or filings are required, Xxxxxxx will use commercially reasonable
efforts to obtain or complete them before the Closing.
(d) Condition of Real Property. Except as set forth in Section
5.4 of the Xxxxxxx Disclosure Letter, there are no material defects in the
physical condition of any land, buildings or improvements constituting part of
the Real Property, including without limitation, structural elements, mechanical
systems, parking and loading areas, and all such buildings and improvements are
in good operating condition and repair.
(e) Compliance with the Law. To the best of Xxxxxxx'x
knowledge, neither Xxxxxxx nor any Xxxxxxx Subsidiary has received any notice
from any governmental authority of any violation of any law, ordinance,
regulation, license, permit or authorization issued with respect to any Real
Property and no such violation exists, in either case, which could reasonably be
expected to have a Xxxxxxx Material Adverse Effect. All improvements located on
or constituting part of the Real Property and their use and operation by Xxxxxxx
and the Xxxxxxx Subsidiaries are in compliance in all material respects with all
applicable laws,
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ordinances, regulations, licenses, permits and authorizations, except as set
forth in Section 5.4 of the Xxxxxxx Disclosure Letter. No approval or consent to
the transactions contemplated by this Agreement is required of any governmental
authority with jurisdiction over any aspect of the Real Property or its use or
operations, except where the failure to obtain such approval or consent would
not have a Xxxxxxx Material Adverse Effect. Neither Xxxxxxx nor any Xxxxxxx
Subsidiary has received any notice of any material real estate tax deficiency or
assessment which has not been satisfied or is aware of any proposed material
deficiency, claim or assessment with respect to any of the Real Property, or any
pending or threatened condemnation thereof.
5.5 Contracts. Except as set forth in Section 5.5 of the Xxxxxxx
Disclosure Letter, neither Xxxxxxx nor any of the Xxxxxxx Subsidiaries is in
default under any Xxxxxxx Material Contract or has any knowledge of conditions
or facts which, with notice or the passage of time, or both, would give rise to
such a default, except for such defaults which, individually or in the
aggregate, could not reasonably be expected to have a Xxxxxxx Material Adverse
Effect. To the knowledge of Xxxxxxx, no third party under any Xxxxxxx Material
Contract is in default thereunder and there is no event which, with notice or
the passage of time, or both, would give rise to such a default. Except as set
forth in Section 5.5 of the Xxxxxxx Disclosure Letter, each Xxxxxxx Material
Contract has been duly authorized and executed by Xxxxxxx, is in full force and
effect and is enforceable by Xxxxxxx in accordance with its terms, except where
the failure to be so would not have a Xxxxxxx Material Adverse Effect. For
purposes of this Agreement, the term "Xxxxxxx Material Contract" shall include
the following:
(a) any plan or contract providing for bonuses, pensions,
options, stock purchases, deferred compensation, retirement payments, profit
sharing, collective bargaining or the like, or any contract or agreement with
any labor union;
(b) any employment contract or contract for services which is
not terminable within 30 days by Xxxxxxx or an Xxxxxxx Subsidiary without
liability for any penalty or severance payment;
(c) any contract or agreement under which, as of the date of
this Agreement, Xxxxxxx or any of the Xxxxxxx Subsidiaries has unpaid
obligations of $100,000 or more, except contracts and agreements specifically
disclosed elsewhere under this Agreement;
(d) any contract or agreement involving more than $100,000 of
unpaid obligations of Xxxxxxx or any of the Xxxxxxx Subsidiaries as of the date
of this Agreement which, by its terms, does not terminate or is not terminable
without penalty by Xxxxxxx or an Xxxxxxx Subsidiary or their successors within
one year after the date hereof;
(e) any contract or agreement for the sale or lease of its
products or services not made in the ordinary course of business;
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(f) any contract containing covenants limiting the freedom of
Xxxxxxx or any of the Xxxxxxx Subsidiaries to compete in any line of business or
with any person or entity other than as is standard in the food brokerage
industry;
(g) any contract or agreement for the purchase of any fixed
asset for a price in excess of $100,000 whether or not such purchase is in the
ordinary course of business;
(h) any license agreement (as licensor or licensee);
(i) any indenture, mortgage, promissory note, loan agreement,
guaranty or other agreement or commitment for the borrowing of money not
otherwise disclosed in the Xxxxxxx SEC Reports (including, if applicable, a
description on any prepayment penalties or similar obligations); or
(j) any contract or agreement with any officer, employee,
director or stockholder of Xxxxxxx or any of the Xxxxxxx Subsidiaries or with
any persons or organizations controlled by or affiliated with any of them.
5.6 Transactions with Interested Persons. Except as disclosed in the
Xxxxxxx SEC Report (as hereinafter defined) or as set forth in Section 5.6 of
the Xxxxxxx Disclosure Letter hereto, neither Xxxxxxx, nor any affiliate of
Xxxxxxx, (i) owns directly or indirectly on an individual or joint basis any
material interest in, or serves as an officer or director or in another similar
capacity of, any competitor or supplier of Xxxxxxx or any of the Xxxxxxx
Subsidiaries, or any organization which has a material contract or arrangement
with Xxxxxxx or any of the Xxxxxxx Subsidiaries or (ii) has directly or
indirectly engaged in any transaction involving any lease or transfer of any
material (measured at the time of such transaction or as of the date hereof)
cash, property or rights to or from Xxxxxxx or any of the Xxxxxxx Subsidiaries
from, to or for the benefit of any affiliate of Xxxxxxx or any of the Xxxxxxx
Subsidiaries.
5.7 Employee Benefit Programs.
(a) Section 5.7 of the Xxxxxxx Disclosure Letter sets forth a
list of every material and significant Employee Program that is currently
maintained by Xxxxxxx or an Affiliate of Xxxxxxx (a "Xxxxxxx Affiliate")
("Xxxxxxx Employee Programs").
(b) Each Xxxxxxx Employee Program which has been intended to
qualify under Section 401(a) or 501(c)(9) of the Code has received a favorable
determination or approval letter from the IRS regarding its qualification under
such section and except as disclosed in Section 5.7 of the Xxxxxxx Disclosure
Letter has, in fact, been qualified under the applicable section of the Code
from the effective date of such Xxxxxxx Employee Program through and including
the Closing Date (or, if earlier, the date that such Xxxxxxx Employee Program).
No event or omission has occurred which would cause any such Xxxxxxx Employee
Program to lose its qualification under the applicable Code section.
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(c) Neither Xxxxxxx nor any Xxxxxxx Affiliate knows, nor
should any of them reasonably know, of any material failure of any party to
comply with any laws applicable with respect to the Xxxxxxx Employee Programs.
With respect to any Xxxxxxx Employee Program, there has been no (i) "prohibited
transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii)
material failure to comply with any provision of ERISA, other applicable law, or
any agreement, or (iii) non-deductible contribution, which, in the case of any
of (i), (ii), or (iii), could subject Xxxxxxx or any Xxxxxxx Affiliate to
material liability either directly or indirectly (including, without limitation,
through any obligation of indemnification or contribution) for any damages,
penalties, or taxes, or any other loss or expense. No litigation or governmental
administrative proceeding (or investigation) or other proceeding (other than
those
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(c) Neither Xxxxxxx nor any Xxxxxxx Affiliate knows, nor
should any of them reasonably know, of any material failure of any party to
comply with any laws applicable with respect to the Xxxxxxx Employee Programs.
With respect to any Xxxxxxx Employee Program, there has been no (i) "prohibited
transaction," as defined in Section 406 of ERISA or Code Section 4975, (ii)
material failure to comply with any provision of ERISA, other applicable law, or
any agreement, or (iii) non-deductible contribution, which, in the case of any
of (i), (ii), or (iii), could subject Xxxxxxx or any Xxxxxxx Affiliate to
material liability either directly or indirectly (including, without limitation,
through any obligation of indemnification or contribution) for any damages,
penalties, or taxes, or any other loss or expense. No litigation or governmental
administrative proceeding (or investigation) or other proceeding (other than
those relating to routine claims for benefits) is pending or, to the knowledge
of Xxxxxxx, threatened with respect to any such Xxxxxxx Employee Program.
(d) Except as disclosed in Section 5.7 of the Xxxxxxx
Disclosure Letter, during the last 3 years, neither Xxxxxxx nor any Xxxxxxx
Affiliate (i) has maintained any Employee Program which has been subject to
title IV of ERISA or Code Section 412 (a "Xxxxxxx Title IV Plan"), including,
but not limited to, any Multiemployer Plan, (ii) has provided health care or any
other non-pension benefits to any employees after their employment is terminated
(other than as required by part 6 of subtitle B of title I of ERISA), or has
promised to provide such post-termination benefits, for a period longer than 12
months or (iii) has provided health care or any other non-pension benefits to
any individuals who were previously employed by entities acquired by Xxxxxxx
prior to the date of this Agreement for a period longer than 12 months.
(e) With respect to each Xxxxxxx Employee Program, complete
and correct copies of the following documents (if applicable to such Xxxxxxx
Employee Program) have previously been delivered to RMSI: (i) all documents
embodying or governing such Xxxxxxx Employee Program, and any funding medium for
the Xxxxxxx Employee Program (including, without limitation, trust agreements)
as they may have been amended to the date hereof; (ii) the most recent IRS
determination or approval letter with respect to such Xxxxxxx Employee Program
under Code Section 401(a) or 501(c)(9), and any applications for determination
or approval subsequently filed with the IRS; (iii) the three most recently filed
IRS Forms 5500, with all applicable schedules and accountants' opinions attached
thereto; (iv) the three most recent actuarial valuation reports completed with
respect to such Xxxxxxx Employee Program; (v) the summary plan description for
such Xxxxxxx Employee Program (or other descriptions of such Xxxxxxx Employee
Program provided to employees) and all modifications thereto; (vi) any insurance
policy (including any fiduciary liability insurance policy or fidelity bond)
related to such Xxxxxxx Employee Program; (vii) any registration statement or
other filing made pursuant to any federal or state securities law and (viii) all
correspondence to and from any state or federal agency within the last three
years.
(f) Each Xxxxxxx Employee Program may be amended, terminated,
or otherwise modified by Xxxxxxx to the greatest extent permitted by applicable
law, including the elimination of any and all future benefit accruals under any
Xxxxxxx Employee Program and, except as disclosed on Section 5.7 of the Xxxxxxx
Disclosure Letter, no condition exists which
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would limit the right of Xxxxxxx or the Xxxxxxx Affiliate to so amend, terminate
or otherwise modify such Xxxxxxx Employee Program.
(g) No liability under Title IV or Section 302 of ERISA has
been incurred by Xxxxxxx or any Xxxxxxx Affiliate that has not been satisfied in
full and no condition exists that presents a material risk to Xxxxxxx or any
Xxxxxxx Affiliate of incurring any such liability, other than liability for
premiums due to the PBGC (which premiums have been paid when due).
(h) The PBGC has not instituted proceedings to terminate any
Xxxxxxx Title IV Plan and no condition exists that presents a material risk that
such proceedings will be instituted.
(i) Except as disclosed in Section 5.7 of the Xxxxxxx
Disclosure Letter, with respect to each Xxxxxxx Title IV Plan, the present value
of accrued benefits under such plan, based upon the actuarial assumptions used
for funding purposes in the most recent actuarial report prepared by such plan's
actuary with respect to such plan, did not exceed, as of its latest valuation
date, the then current value of the assets of such plan allocable to such
accrued benefits.
(j) No Xxxxxxx Title IV Plan or any trust established there
under has incurred any "accumulated funding deficiency" (as defined in Section
302 of ERISA and Section 412 of the Code), whether or not waived, as of the last
day of the most recent fiscal year of each Xxxxxxx Title IV Plan ended prior to
the Closing Date.
(k) No amounts payable under the Xxxxxxx Employee Programs
will fail to be deductible for federal income tax purposes by virtue of Section
162(a)(1), 162(m) or 280G of the Code.
5.8 Intentionally Omitted
5.9 No Payments to Employees, Officers and Directors. Section 5.9 of
the Xxxxxxx Disclosure Letter contains a true and complete list of all
arrangements, agreements or plans pursuant to which any cash or non-cash
payments or other obligation will become payable, accelerate the time of payment
or vesting or increase any amount currently payable (and the maximum aggregate
amount which may be payable thereunder) to each employee, officer or director of
Xxxxxxx or any Xxxxxxx Subsidiary as a result of the Merger (assuming no
termination of service).
5.10 Taxes. Except as set forth in Section 5.10 of the Xxxxxxx
Disclosure Letter:
(a) Xxxxxxx and each of the Xxxxxxx Subsidiaries have timely
filed all income and other material Tax Returns required to be filed by them
through the date hereof in a manner correct and complete in all material
respects and have timely paid or caused to be paid all Taxes shown as due on
such Tax Returns and all income and other material Taxes otherwise required to
be paid by them through the date hereof whether disputed or not.
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(b) On or before the Closing Date, Xxxxxxx and each of the
Xxxxxxx Subsidiaries shall have paid all income and other material Taxes
(whether or not shown on any Tax Return) required to be paid by them on or
before the Closing Date whether disputed or not and shall have accrued or made
full, adequate and complete provision on their books as required by GAAP for all
income and other material Taxes (whether or not shown on any Tax Return) not
required to be paid by them on or before the Closing Date.
(c) No Tax Authority is now asserting or, to the best
knowledge of Xxxxxxx, threatening to assert against Xxxxxxx or any of the
Xxxxxxx Subsidiaries any deficiency or claim for Taxes. No claim for unpaid
income taxes or for other unpaid material Taxes has become a lien or encumbrance
of any kind against any material asset of Xxxxxxx or any of the Xxxxxxx
Subsidiaries except for statutory liens for such Taxes that are not yet due.
Neither Xxxxxxx nor any of the Xxxxxxx Subsidiaries has entered into a closing
agreement pursuant to Section 7121 of the Code after December 31, 1990.
(d) Xxxxxxx and the Xxxxxxx Subsidiaries have previously
delivered or made available to RMSI complete and accurate copies of (1) all
audit reports, revenue agent reports, requests for letter rulings, letter
rulings, technical advice memoranda and similar documents issued by all Tax
Authorities relating to Taxes, (2) all income Tax Returns filed by Xxxxxxx or
any of the Xxxxxxx Subsidiaries with respect to taxable periods beginning after
December 31, 1990 and (3) any closing agreements (and any exhibits thereto)
entered into by Xxxxxxx or any of the Xxxxxxx Subsidiaries as of the date
hereof. Xxxxxxx will deliver or make available to RMSI any documents mentioned
in the preceding sentence that become available to Xxxxxxx or any of the Xxxxxxx
Subsidiaries after the date hereof and on or before the Closing Date.
(e) There has not been any audit of any tax return filed by
Xxxxxxx or any of the Xxxxxxx Subsidiaries with respect to any taxable year
beginning after December 31, 1990, no such audit is in progress, and neither
Xxxxxxx nor any of the Xxxxxxx Subsidiaries has been notified by any Tax
Authority that any such audit is contemplated or pending. Neither Xxxxxxx nor
any of the Xxxxxxx Subsidiaries has requested or received an extension of time
with respect to any date on which a tax return was or is to be filed by Xxxxxxx
or any of the Xxxxxxx Subsidiaries and there is no extension, waiver or
agreement for the extension of time for the assessment or payment of any Taxes
owed (or alleged to be owed) by Xxxxxxx or any of the Xxxxxxx Subsidiaries.
(f) No power of attorney has been granted by or with respect
to Xxxxxxx or any of the Xxxxxxx Subsidiaries with respect to any matter
relating to Taxes.
(g) There are no agreements or understandings relating to
Taxes between Xxxxxxx or any of the Xxxxxxx Subsidiaries and any other party
affecting or which could affect Xxxxxxx or any of the Xxxxxxx Subsidiaries by
which Xxxxxxx or any of the Xxxxxxx Subsidiaries will be bound after the Closing
Date or which could affect the computation of Taxes by Xxxxxxx or any of the
Xxxxxxx Subsidiaries.
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5.11 Tax-Free Treatment. Neither Xxxxxxx nor any of the Xxxxxxx
Subsidiaries has taken or caused to be taken any action which would cause the
Merger to fail to qualify as a Reorganization under Section 368(a) of the Code.
5.12 Proxy Statement. On the date the Proxy Statement (as defined in
Section 6.7 hereof) is mailed to Xxxxxxx'x stockholders, none of the information
supplied in writing by or on behalf of Xxxxxxx for inclusion in the Proxy
Statement will be false or misleading with respect to any material fact or will
omit to state any material fact required to be stated therein or necessary in
order to make the statements therein, in light of the circumstances under which
they are made, not misleading or necessary to correct any statement in any
earlier communication with respect to the stockholders' meeting or the
solicitation of proxies therefore which has become false or misleading.
Notwithstanding the foregoing, Xxxxxxx makes no representation or warranty with
respect to information supplied by RMSI or any of its affiliates or
representatives in writing for inclusion in the Proxy Statement.
5.13 SEC Documents. As of the date it was declared effective by the
SEC, Xxxxxxx'x Registration Statement on Form S-1 (Registration No. 333-53419),
as amended (the "S-1"), (i) complied as to form in all material respects with
the applicable requirements of the Securities Act and the Exchange Act and (ii)
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in light of the circumstances under which they were made, not
misleading. As of its date of filing, Xxxxxxx'x Annual Report on Form 10-K for
the fiscal year ended December 31, 1998 filed with the SEC on March 31, 1999
(the "Xxxxxxx SEC Report") (i) complied as to form in all material respects with
the applicable requirements of the Securities Act and the Exchange Act and (ii)
did not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the statements
made therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the parties hereto acknowledge that the
Xxxxxxx SEC Report does not contain any information or disclosure relating to
this Agreement and the transactions contemplated thereby, including the Merger.
There is no material fact existing today directly relating to the business,
operations or condition of Xxxxxxx (other than facts which relate to general
economic trends or conditions or general conditions affecting the industries in
which Xxxxxxx or the Xxxxxxx Subsidiaries operate) that is reasonably likely to
have a Xxxxxxx Material Adverse Effect, that has not been set forth in the
Xxxxxxx SEC Report or the Xxxxxxx Disclosure Letter; provided that the loss of,
or a reduction in revenues from, one or more customers or principals shall be
deemed not to have a Xxxxxxx Material Adverse Effect, unless the loss of, or
reductions in revenues from, such customers or principals, individually or in
the aggregate, constitute a Material Customer Loss. A true and complete copy of
the Xxxxxxx SEC Report has been delivered to RMSI. Each of the consolidated
balance sheets of Xxxxxxx included in or incorporated by reference into the
Xxxxxxx SEC Report and the S-1 (including the related notes and schedules)
fairly presents the consolidated financial position of Xxxxxxx and the Xxxxxxx
Subsidiaries as of its date and each of the consolidated statements of income,
retained earnings and cash flows of Xxxxxxx included in or incorporated by
reference into the Xxxxxxx SEC Report and the S-1 (including any related
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notes and schedules) fairly presents the results of operations, retained
earnings or cash flows, as the case may be, of Xxxxxxx and the Xxxxxxx
Subsidiaries for the periods set forth therein (subject, in the case of
unaudited statements, to normal year-end audit adjustments which would not be
material in amount or effect), in each case in accordance with generally
accepted accounting principles consistently applied during the periods involved,
except, in the case of the unaudited statements, as permitted by Form 10-Q
pursuant to Section 13 or 15(d) of the Exchange Act.
5.14 No Brokers. Except as disclosed in Section 5.14 of the Xxxxxxx
Disclosure Letter, neither Xxxxxxx nor any Xxxxxxx Subsidiary has entered into
any contract, arrangement or understanding with any person or firm which may
result in the obligation of such entity, RMSI or Xxxxxxx to pay any finder's
fees, brokerage or agent's commissions, advisory fee or other like payments
relating to or in connection with the negotiations leading to this Agreement or
the consummation of the transactions contemplated hereby.
5.15 Litigation. There is no litigation or governmental or
administrative proceeding, arbitration or investigation pending or, to the
knowledge of Xxxxxxx, threatened against Xxxxxxx or the Xxxxxxx Subsidiaries
which, either individually or in the aggregate, is reasonably likely to have a
Xxxxxxx Material Adverse Effect on Xxxxxxx and the Xxxxxxx Subsidiaries taken as
a whole, or which would prevent or hinder the consummation of the transactions
contemplated by this Agreement.
5.16 Absence of Certain Changes. Except as disclosed in Section 5.16 of
the Xxxxxxx Disclosure Letter, since December 31, 1998 there has not been any
change in the financial condition, properties, assets, liabilities, business or
operations of Xxxxxxx, which change by itself or in conjunction with all other
such changes, whether or not arising in the ordinary course of business, has had
a Xxxxxxx Material Adverse Effect; provided that no decrease in the reported
price of Xxxxxxx Common Stock shall in any event constitute a Xxxxxxx Material
Adverse Effect under any provision of this Agreement; provided further that the
loss of, or a reduction in revenues from, one or more customers or principals
shall be deemed not to have a Xxxxxxx Material Adverse Effect under any
provision of this Agreement, unless the loss of, or reduction in revenues from,
such customers or principals, individually or in the aggregate, constitute a
Material Customer Loss.
5.17 Disclosure. The representations, warranties and statements
contained or referred to in this Agreement and in the certificates, exhibits and
the Xxxxxxx Disclosure Letter delivered by Xxxxxxx pursuant to this Agreement
(including the Xxxxxxx SEC Report) to RMSI do not contain any untrue statement
of a material fact, and, when taken together, do not omit to state a material
fact required to be stated therein or necessary in order to make such
representations, warranties or statements not misleading in light of the
circumstances under which they were made.
5.18 Undisclosed Liabilities. Except as and to the extent reflected,
reserved against or otherwise specifically disclosed in the Xxxxxxx SEC Report
and the Xxxxxxx Disclosure
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Letter, neither Xxxxxxx nor any Xxxxxxx Subsidiary has any liabilities or
obligations of any kind required to be disclosed in accordance with GAAP applied
on a basis consistent with past practice, whether accrued, absolute, known or
unknown, asserted or unasserted, contingent or otherwise which could reasonably
be expected to have, individually or in the aggregate, a Xxxxxxx Material
Adverse Effect.
5.19 Customers and Principals. Except as disclosed in Section 5.16 of
the Xxxxxxx Disclosure Letter, as of the date hereof, Xxxxxxx has no knowledge
of (i) any loss since December 31, 1998 or any currently threatened loss of any
material customer or principal, other than losses or threatened losses arising
out of, resulting from or relating to the execution or consummation of this
Agreement or the transactions contemplated thereby, or (ii) any pending
bankruptcy filing, insolvency or material adverse change in the financial
position of any material customer or principal.
5.20 Receivables. All of Xxxxxxx'x accounts receivable arose from bona
fide transactions in the ordinary course of business, are valid and collectible
obligations of the respective makers thereof and were not and are not subject to
any offset or counter-claim, except for the amount reserved for doubtful
accounts set forth on (i) prior to the availability of Xxxxxxx'x consolidated
unaudited financial statements for the quarter ended March 31, 1999, Xxxxxxx'x
consolidated audited financial statements for the year ended December 31, 1998,
and (ii) after Xxxxxxx'x consolidated unaudited financial statements for the
quarter ended March 31, 1999 become available, Xxxxxxx'x consolidated unaudited
financial statements for the quarter ended March 31, 1999 (the "Xxxxxxx
Financials"). Xxxxxxx'x accounts receivable are reflected on the Xxxxxxx
Financials in accordance with GAAP (as defined herein) applied on a basis
consistent with past practice. Since the date of the Xxxxxxx Financials, there
have not been any material write-offs as uncollectible of any of Xxxxxxx'x
accounts receivable, except for write-offs in the ordinary course of business
and consistent with past practice.
5.21 Definition of Xxxxxxx'x Knowledge. As used in this Agreement, the
phrase "to the knowledge of Xxxxxxx" or "to the best knowledge of Xxxxxxx" (or
words of similar import) means the actual knowledge of Xxxxxx X. Xxxxxxx, Xxxxx
X. Xxxxxx, Xxxxxx X. Xxxxx or Xxxxxx X. Xxxxxx.
5.22 Opinion of Financial Advisor. The Special Committee has received
the opinion of Xxxxxx Xxxxxxx Xxxxxx Gull, its financial advisor, substantially
to the effect that the Merger is fair to Xxxxxxx from a financial point of view,
a copy of which will be provided to RMSI.
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ARTICLE 6. COVENANTS
6.1 Acquisition Proposals.
(a) RMSI represents and warrants that it has terminated any
discussions or negotiations relating to, or that may reasonably be expected to
lead to, any Acquisition Proposal (as defined below). From and after the date
hereof until the termination of this Agreement, RMSI shall not, nor shall it
permit any of the RMSI Subsidiaries to, nor shall it authorize or permit any
officer, director, employee, agent, advisor or representative of RMSI or any of
the RMSI Subsidiaries to, directly or indirectly (i) solicit, initiate or
encourage the submission of, any inquiries, proposals or offers from any person
relating to an Acquisition Proposal, (ii) enter into any agreement with respect
to any Acquisition Proposal, or (iii) enter into, engage in, or participate or
continue in, any discussions or negotiations regarding, or furnish to any person
any information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or would reasonably be
expected to lead to, any Acquisition Proposal.
(b) Xxxxxxx represents and warrants that it has terminated any
discussions or negotiations relating to, or that may reasonably be expected to
lead to, any Acquisition Proposal (as defined below). From and after the date
hereof until the termination of this Agreement, Xxxxxxx shall not, nor shall it
permit any of the Xxxxxxx Subsidiaries to, nor shall it authorize or permit any
officer, director, employee, agent, advisor or representative of Xxxxxxx or any
of the Xxxxxxx Subsidiaries to, directly or indirectly (i) solicit, initiate or
encourage the submission of, any inquiries, proposals or offers from any person
relating to an Acquisition Proposal, (ii) enter into any agreement with respect
to any Acquisition Proposal, or (iii) enter into, engage in, or participate or
continue in, any discussions or negotiations regarding, or furnish to any person
any information with respect to, or take any other action to facilitate any
inquiries or the making of any proposal that constitutes, or would reasonably be
expected to lead to, any Acquisition Proposal. Notwithstanding anything to the
contrary in this Agreement, Xxxxxxx may (A) furnish information to, or
participate in discussions or negotiations with, any person or entity that makes
bona fide, written, unsolicited Acquisition Proposal for which financing, to the
extent required to consummate the Acquisition Proposal, is then fully and
unconditionally committed in writing or is, in the good faith judgment of the
Xxxxxxx Board of Directors, likely to be obtained, with respect to Xxxxxxx if
the Board of Directors of Xxxxxxx determines in good faith (i) after receiving
the advice of outside counsel and (ii) after receiving the advice of the
financial advisor to the directors that such Acquisition Proposal, if accepted,
is reasonably likely to be completed, taking into account all legal, financial,
regulatory and other aspects of the Acquisition Proposal and the person making
the Acquisition Proposal and that would, if consummated, result in a transaction
more favorable to Xxxxxxx'x stockholders from a financial point of view than the
transaction contemplated by this Agreement (any such Acquisition Proposal, a
"Superior Proposal"); provided, however, that prior to Xxxxxxx'x furnishing such
information or participating in such discussions or negotiations, such person or
entity shall have executed a confidentiality and standstill agreement with
Xxxxxxx having terms substantially similar to those contained in that certain
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exclusivity/confidentiality agreement, dated March 10, 1999 between Xxxxxxx and
RMSI (the "Confidentiality Agreement"), and (B) comply with Rules 14d-9 and
14e-2 promulgated under the Exchange Act with respect to an Acquisition
Proposal.
(c) As used herein, the term "Acquisition Proposal" shall
mean, with respect to any person, any proposal or offer for a (i) merger,
consolidation or similar transaction involving such person, (ii) sale, lease or
other disposition, directly or indirectly, by merger, consolidation, share
exchange or otherwise, of any assets of such person or their subsidiaries
representing 15% or more of the consolidated assets of such person and their
subsidiaries, (iii) issue, sale or other disposition of (including by way of
merger, consolidation, share exchange or any similar transaction) securities (or
options, rights or warrants to purchase, or securities convertible into, such
securities) representing 15% or more of the votes attached to the outstanding
securities of such person, (iv) transaction in which any person shall acquire
beneficial ownership (as such term is defined in Rule 13d-3 under the Exchange
Act), or the right to acquire beneficial ownership, or any "group" (as such term
is defined under the Exchange Act) shall have been formed which beneficially
owns or has the right to acquire beneficial ownership of, 15% or more of the
outstanding shares of such person's capital stock or (v) recapitalization,
restructuring, liquidation or dissolution with respect to such person or their
subsidiaries; provided, however, that the term "Acquisition Proposal" shall not
include the Merger and the transactions contemplated thereby.
(d) Xxxxxxx and RMSI shall immediately advise the other party
orally and in writing of any Acquisition Proposal made to it or made after the
date hereof, including the terms thereof and any changes thereto and any
termination thereof, or any inquiry, proposal or discussion regarding any such
Acquisition Proposal, the identity of the person making such Acquisition
Proposal or inquiry, proposal or discussion, the material terms thereof. After
the receipt by Xxxxxxx of an Acquisition Proposal, Xxxxxxx shall, unless
prohibited by law from doing so, keep RMSI informed on a current basis of the
status of any such inquiry, proposal or discussion.
(e) Prior to the vote on this Agreement at the Xxxxxxx
Stockholders Meeting, the Board of Directors of Xxxxxxx, at any time 48 hours
following notification to RMSI of Xxxxxxx'x intention to do so and only if
Xxxxxxx shall have otherwise complied with its obligations under this Section
6.1, may withdraw or modify its approval or recommendation of the Merger,
terminate this Agreement, and cause Xxxxxxx to enter into any agreement with
respect to a Superior Proposal, provided it shall pay or cause to be paid to
RMSI the Termination Amount. If Xxxxxxx shall have notified RMSI of its intent
to enter into an agreement with respect to a Superior Proposal in compliance
with the preceding sentence, and has otherwise complied with that sentence,
Xxxxxxx may enter into an agreement with respect to such Superior Proposal (with
the person making the Superior Proposal and on terms no less favorable than
those specified in the notification to RMSI) after the expiration of such 48
hour period.
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6.2 Conduct of Businesses.
(a) Conduct by Xxxxxxx and RMSI. Prior to the Effective Time,
unless the other party has consented in writing thereto or unless otherwise
specifically permitted by this Agreement and except for those matters set forth
in Schedule 6.2 attached hereto, Xxxxxxx and RMSI:
(i) shall use their respective reasonable best
efforts, and shall cause each of their respective subsidiaries to use
their reasonable best efforts, to preserve intact their business
organizations and goodwill and keep available the services of their
respective executive officers and material employees, their customers
and principals and others having business relations with Xxxxxxx or
RMSI, as applicable;
(ii) shall confer on a regular basis with one or more
representatives of the other party to report on material operational
matters and any proposals to engage in material transactions;
(iii) shall promptly notify the other party of any
material emergency or other material change in the condition (financial
or otherwise), business, properties, assets, liabilities, prospects or
the normal course of their businesses or in the operation of their
properties, any material governmental complaints, investigations or
hearings (or communications indicating that the same may be
contemplated), or the breach in any material respect of any
representation or warranty contained herein;
(iv) shall promptly deliver to the other party true
and correct copies of any report, statement or schedule filed by or
with respect to it with the SEC subsequent to the date of this
Agreement and copies of all correspondence with the SEC relating
thereto;
(v) shall, and shall cause each of their respective
subsidiaries to, conduct its operations according to their usual,
regular and ordinary course in substantially the same manner as
heretofore conducted and refrain from changing or introducing any
method of financial or tax accounting, management or operations except
in the ordinary course of business and consistent with past practices,
subject to clauses (vi)-(xix) below;
(vi) shall not amend their respective certificate of
incorporation or bylaws, and shall cause each of their respective
subsidiaries not to amend their charter, bylaws, joint venture
documents, partnership agreements or equivalent documents;
(vii) shall not (A) issue any shares of its capital
stock, effect any stock split, reverse stock split, stock dividend,
recapitalization or other similar transaction, (B) grant, confer or
award any option, warrant, conversion right or other right not existing
on the date hereof to acquire any shares of its capital stock or grant
any stock
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appreciation rights, (C) increase any compensation, other than in the
ordinary course of business consistent with past practice, or enter
into or amend any employment agreement with any of their present or
future officers or directors, or (D) adopt any new employee benefit
plan (including any stock option, stock appreciation right, stock
benefit or stock purchase plan) or amend any of their benefit plans in
any material respect, except for changes which are not more favorable
to participants in such plans or are otherwise required to comply with
applicable law;
(viii) shall not (A) declare, set aside or pay any
dividend or make any other distribution or payment with respect to any
shares of its capital stock, or (B) directly or indirectly redeem,
purchase or otherwise acquire any shares of their respective capital
stock or capital stock of any or their respective subsidiaries, or make
any commitment for any such action;
(ix) shall not, and shall cause all of their
respective subsidiaries not to, sell, lease or otherwise dispose of, or
agree to the sale, lease or other disposition of any of their assets or
properties which are material, individually or in the aggregate, or any
of the capital stock of, or partnership or other interests owned by,
Xxxxxxx, RMSI or any of their subsidiaries except in the ordinary
course of business;
(x) shall not, and shall not authorize or give any of
their respective subsidiaries consent to, make any loans, advances or
capital contributions to, or investments in, any other person other
than loans and advances to employees relating to the incurrence of
expenses in the ordinary course consistent with past practices;
(xi) shall not, and shall not permit any of their
respective subsidiaries to, pay, discharge or satisfy any claims,
liabilities or obligations (absolute, accrued, asserted or unasserted,
contingent or otherwise), other than the payment, discharge or
satisfaction, in the ordinary course of business consistent with past
practice or in accordance with their terms, of liabilities reflected or
reserved against in, or contemplated by, the most recent consolidated
financial statements (or the notes thereto) of RMSI included in the
RMSI SEC Report or of Xxxxxxx included in the Xxxxxxx SEC Reports, as
applicable, or incurred in the ordinary course of business consistent
with past practice or entered into in accordance with this Agreement or
the settlement of claims and litigation in the ordinary course of
business;
(xii) shall not, and shall cause all of their
respective subsidiaries not to, enter into any commitment not provided
for in their respective capital expenditure budgets which may result in
total payments or liability by it in excess of $100,000 per year
(provided, however, that nothing contained in this clause (xii) shall
permit Xxxxxxx or RMSI, as applicable, or any of their respective
subsidiaries to take any action prohibited by the other provisions of
this Section 6.2), other than commitments for expenses of attorneys,
accountants and investment bankers incurred in connection
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with the transactions contemplated by this Agreement or, if and to the
extent consistent with this Agreement, any Acquisition Proposal; and
(xiii) shall not, and shall cause all of their
respective subsidiaries not to, engage in any discussions relating to,
make any proposal or offer relating to, or enter into any agreement
with respect to, any acquisition or purchase by Xxxxxxx or RMSI, as
applicable, or any of their respective subsidiaries of all or a
significant portion of the assets of, or any capital stock or other
equity interest in, any entity, or any merger, consolidation, business
combination or similar transaction involving Xxxxxxx or RMSI, as
applicable, or any of their respective subsidiaries, other than in
connection with the pending transactions listed on Schedule
6.2(a)(xiii) contained in their respective Disclosure Letters;
(xiv) shall not, and shall cause all of their
respective subsidiaries not to, make any purchase of any product, asset
or property other than in the ordinary course of business, or mortgage,
pledge, subject to a lien or otherwise encumber any of its properties
or assets other than in the ordinary course of business, other than in
connection with the pending transactions listed on Schedule
6.2(a)(xiii) contained in their respective Disclosure Letters;
(xv) shall not, and shall cause all of their
respective subsidiaries not to, incur any contingent liability as a
guarantor or otherwise with respect to the obligations of others, or
incur any other indebtedness or contingent or fixed obligations or
liabilities except in the ordinary course of business;
(xvi) shall not, and shall cause all of their
respective subsidiaries not to, make any change in the compensation
payable or to become payable to any of their respective officers,
employees, agents or independent contractors other than increases in
the ordinary course of business consistent with past practices,
provided that no compensation payable to any of Xxxxxxx'x or RMSI's
officers, employees, agents, or independent contractors shall be
increased by more than 5% of the compensation received by such person
for the calendar year ending December 31, 1998;
(xvii) shall have, and shall cause all of their
respective subsidiaries to have, in effect and maintain at all times
all insurance of the kind and in the amount it currently carries or
equivalent insurance with any substitute insurers approved in writing
by the other party;
(xviii) shall permit, and shall cause all of their
respective subsidiaries to permit the other party and its authorized
representatives to have full access to all its properties, assets,
records, Tax Returns, contracts and documents and furnish to the other
party or its authorized representatives such financial and other
information with respect to its business or properties as the other
party may from time to time reasonably request; and
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(xix) shall not, and shall cause all of their
respective subsidiaries not to, make any material Tax elections, settle
or compromise any Tax liability with any Taxing Authority or file any
amended Tax Return or claim for refund.
Any request for consent of Xxxxxxx under this Section 6.2 shall be
directed to Xxxxxx X. Xxxxxxx at the address set forth for Xxxxxxx in Section
9.2 hereof, with copies to Xxxxxx X. Cable, P.C. at the address set forth for
Xxxxxxx, Procter & Xxxx LLP set forth in Section 9.2 hereof. Any request for
consent of RMSI under this Section 6.2 shall be directed to Xxxxxx X. Xxxxxxxx
at the address set forth for RMSI in Section 9.2 hereof, with copies to Xxxxxx
Xxxxxx Xxxxx, Esq. at the address set forth for Skadden, Arps, Slate, Xxxxxxx &
Xxxx LLP set forth in Section 9.2 hereof.
6.3 Meeting of Stockholders. Promptly following execution of this
Agreement, each of Xxxxxxx and RMSI will take all action necessary in accordance
with applicable law and their respective charter and bylaws to convene a meeting
of their respective stockholders as promptly as practicable to consider and vote
upon the approval of this Agreement and the consummation of the transactions
contemplated hereby. The Board of Directors of each of Xxxxxxx and RMSI has
recommended that their respective stockholders approve this Agreement and the
transactions contemplated hereby and each of Xxxxxxx and RMSI shall use their
reasonable best efforts to obtain such approval, including, without limitation,
by timely mailing the Proxy Statement (as defined in Section 6.7 hereof) to
Xxxxxxx'x stockholders; provided, however, that nothing contained in this
Section 6.3 shall prohibit the Board of Directors of Xxxxxxx from changing such
recommendation or using their reasonable best efforts to obtain such approval if
the Board of Directors of Xxxxxxx has determined in good faith, after
consultation with and in reliance upon the advice of Xxxxxxx, Procter & Xxxx
LLP, or another nationally recognized firm selected by Xxxxxxx, that the failure
to do so would be a violation of such Board of Directors' fiduciary duties to
its stockholders under applicable law. It shall be a condition to the mailing of
the Proxy Statement that (i) Xxxxxxx shall have received a "comfort" letter from
Ernst & Young, L.L.P., independent public accountants for RMSI, dated as of a
date within two business days before the date on which the Proxy Statement, with
respect to the financial statements of RMSI included or incorporated in the
Proxy Statement is first mailed to stockholders, in form and substance
reasonably satisfactory to Xxxxxxx, and customary in scope and substance for
"comfort" letters delivered by independent public accountants in connection with
proxy statements similar to the Proxy Statement; and (ii) RMSI shall have
received a "comfort" letter from Xxxxxx Xxxxxxxx LLP, independent public
accountants for Xxxxxxx, dated as of a date within two business days before the
date on which the Proxy Statement, with respect to the financial statements of
Xxxxxxx included or incorporated in the Proxy Statement is first mailed to
stockholders, in form and substance reasonably satisfactory to RMSI, and
customary in scope and substance for "comfort" letters delivered by independent
public accountants in connection with proxy statements similar to the Proxy
Statement.
6.4 Filings; Other Action. Subject to the terms and conditions herein
provided, RMSI and Xxxxxxx shall: (a) use all reasonable best efforts to
cooperate with one another in
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(i) determining which filings are required to be made prior to the Effective
Time with, and which consents, approvals, permits or authorizations are required
to be obtained prior to the Effective Time from, governmental or regulatory
authorities of the United States, the several states, and foreign jurisdictions
and any third parties in connection with the execution and delivery of this
Agreement and the other agreements contemplated hereby (the "Ancillary
Agreements") and the consummation of the transactions contemplated by such
agreements and (ii) timely making all such filings and timely seeking all such
consents, approvals, permits or authorizations; (b) use all reasonable best
efforts to obtain in writing any consents required from third parties to
effectuate the Merger and the transactions contemplated hereby and by the
Ancillary Agreements, including without limitation the required consents set
forth on Schedule 7.3(g), in form and substance reasonably satisfactory to each
of RMSI and Xxxxxxx; and (c) use all reasonable best efforts to take, or cause
to be taken, all other action and do, or cause to be done, all other things
necessary, proper or appropriate to consummate and make effective the
transactions contemplated by this Agreement, and the other Ancillary Agreements.
If, at any time after the Effective Time, any further action is necessary or
desirable to carry out the purpose of this Agreement or the Ancillary
Agreements, the proper officers and directors of Xxxxxxx and RMSI shall take all
such necessary action. Xxxxxxx and RMSI shall cooperate with all reasonable
requests of the other parties hereto and their counsel in connection with the
consummation of the transactions contemplated hereby.
6.5 Access to Information.
(a) Upon reasonable notice to the other, Xxxxxxx and RMSI
shall (and shall cause their respective subsidiaries to) afford to the officers,
employees, accountants, counsel and other representatives of the others,
reasonable access, during normal business hours during the period from the date
hereof to the Effective Time, to all its properties, books, contracts,
commitments and records and permit such persons to make such inspections as they
may reasonably require, and during such period, Xxxxxxx and RMSI shall (and
cause their respective subsidiaries to) furnish promptly to the others all
information concerning its business, properties, personnel and accountants as
the others may reasonably request.
(b) RMSI agrees that, unless and until the Closing has been
consummated, RMSI and their officers, directors, agents and representatives will
hold in strict confidence, and will not use, any confidential or proprietary
data or information obtained from Xxxxxxx with respect to its business or
financial condition except for the purpose of evaluating, negotiating and
completing the transaction contemplated hereby. Information that (i) is or
becomes generally available to the public as a result of disclosure by Xxxxxxx
or its representatives, (ii) was available to RMSI on a non-confidential basis
prior to its disclosure to RMSI by Xxxxxxx, (iii) becomes available to RMSI on a
non-confidential basis from a source other than Xxxxxxx or its representatives
provided that such source is not bound by a confidentiality Agreement with
Xxxxxxx or its representatives or (iv) was developed by RMSI independently and
without any use of information provided by or obtained from Xxxxxxx shall not be
deemed confidential or proprietary information for purposes of this agreement.
If the transaction contemplated by this Agreement is not consummated, RMSI will
return to Xxxxxxx
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(or certify that they have destroyed) all copies of such data and information,
including but not limited to financial information, customer lists, business and
corporate records, worksheets, test reports, Tax Returns, lists, memoranda, and
other documents prepared by or made available to RMSI in connection with the
transaction.
(c) Xxxxxxx agrees that, unless and until the Closing has been
consummated, Xxxxxxx and their officers, directors, agents and representatives
will hold in strict confidence, and will not use, any confidential or
proprietary data or information obtained from RMSI with respect to its business
or financial condition except for the purpose of evaluating, negotiating and
completing the transaction contemplated hereby. Information that (i) is or
becomes generally available to the public as a result of disclosure by RMSI or
its representatives, (ii) was available to Xxxxxxx on a non-confidential basis
prior to its disclosure to Xxxxxxx by RMSI, (iii) becomes available to Xxxxxxx
on a non-confidential basis from a source other than RMSI or its representatives
provided that such source is not bound by a confidentiality agreement with RMSI
or its representatives or (iv) was developed by Xxxxxxx independently and
without any use of information provided by or obtained from RMSI shall not be
deemed confidential or proprietary information for purposes of this Agreement.
If the transaction contemplated by this Agreement is not consummated, Xxxxxxx
will return to RMSI (or certify that they have destroyed) all copies of such
data and information, including but not limited to financial information,
customer lists, business and corporate records, worksheets, test reports, Tax
Returns, lists, memoranda, and other documents prepared by or made available to
Xxxxxxx in connection with the transaction.
6.6 Publicity. Xxxxxxx and RMSI shall consult with each other before
issuing any press release or otherwise making any public statements with respect
to this Agreement, the Ancillary Agreements, or any transaction contemplated
hereby and thereby and shall not issue any such press release or make any such
public statement without the prior consent of the other parties, which consent
shall not be unreasonably withheld; provided, however, that a party may, without
the prior consent of the other parties, issue such press release or make such
public statement as may be required (i) in the opinion of counsel under any
applicable law or regulation or pursuant to the rules of any exchange or the
NASDAQ National Market or (ii) in response to any legal process, including,
without limitation, any interrogatories, documents subpoena or civil
investigative demand.
6.7 Proxy Statement. Xxxxxxx shall prepare and file with the SEC (with
appropriate requests for confidential treatment, unless the parties hereto
otherwise agree) under the Exchange Act, a proxy statement and form of proxies
(such proxy statement and form of proxy, together with any amendments to
supplements thereto, the "Proxy Statement") relating to the stockholder meeting
of Xxxxxxx and the vote of the stockholders of Xxxxxxx with respect to this
Agreement (the "Xxxxxxx Stockholders Meeting"). Xxxxxxx and RMSI will cause the
Proxy Statement to comply as to form in all material respects with the
applicable provisions of the Exchange Act and the rules and regulations
thereunder. Each of Xxxxxxx, on the one hand, and RMSI, on the other hand, shall
furnish all information about itself and its business and operations and all
necessary financial information to the other as the other may reasonably
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request in connection with the preparation of the Proxy Statement. Xxxxxxx shall
use its reasonable best efforts, and RMSI will cooperate with them, to have the
Proxy Statement cleared with the SEC as promptly as practicable. Each of Xxxxxxx
and RMSI, agrees promptly to correct any information provided by it for use in
the Proxy Statement if and to the extent that such information shall have become
false or misleading in any material respect, and each of the parties hereto
further agrees to take all steps necessary to amend or supplement the Proxy
Statement and to cause the Proxy Statement as so amended or supplemented to be
filed with the SEC and to be disseminated to Xxxxxxx'x stockholders, in each
case as and to the extent required by applicable federal and state securities
laws and the DGCL. Each of Xxxxxxx and RMSI agrees that the information provided
by it for inclusion in the Proxy Statement and each amendment or supplement
thereto, at the time of mailing thereof, will not include any untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Each of Xxxxxxx and
RMSI will advise the other parties, and deliver copies (if any) to them,
promptly after receipt thereof, of (i) any request by or correspondence or
communication from the SEC with respect to the Proxy Statement (ii) any
responses thereto and (iii) notice of the time when the Proxy Statement has been
cleared or any supplement or amendment has been filed, the issuance of any stop
order.
6.8 Listing Application. Xxxxxxx and RMSI shall cooperate and promptly
prepare and submit to the Nasdaq National Market all reports, applications and
other documents that may be necessary or desirable to enable all of the shares
of Xxxxxxx Common Stock issuable in the Merger or that will be reserved for
issuance at the Effective Time to be listed for trading on the Nasdaq National
Market. Each of Xxxxxxx and RMSI shall furnish all information about itself and
its business and operation and all necessary financial information to the other
as the other may reasonably request in connection with the such Nasdaq National
Market listing process. Each of Xxxxxxx and RMSI agree promptly to correct any
information provided by it for use in the Nasdaq National Market listing process
if and to the extent that such information shall have become false or misleading
in any material respect. Each of Xxxxxxx and RMSI will advise and deliver copies
(if any) to the other parties, promptly after it receives notice thereof, of any
request by the Nasdaq National Market for amendment of any submitted materials
or comments thereon and responses thereto or requests by the Nasdaq National
Market for additional information.
6.9 Further Action. Each party hereto shall, subject to the fulfillment
at or before the Effective Time of each of the conditions of performance set
forth herein or the waiver thereof, perform such further acts and execute such
documents as may reasonably be required to effect the Merger and the
transactions contemplated by this Agreement, and the Ancillary Agreements. In
connection with the Closing, RMSI and each RMSI Subsidiary shall use its
reasonable best efforts to deliver to Xxxxxxx such deeds, bills of sale,
assignments, certificates, affidavits, indemnities and other agreements and
documents as are reasonably required to effectuate consummation of the
transactions described herein.
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6.10 Affiliates of RMSI.
(a) RMSI shall use its reasonable best efforts to deliver or
cause to be delivered to Xxxxxxx, prior to the Closing Date, from each of the
RMSI Stockholders ("Affiliates"), an Affiliate Letter in the form attached
hereto as Exhibit X. Xxxxxxx shall be entitled to place legends as specified in
such affiliate letters on the certificates evidencing any shares to be received
by such Affiliates pursuant to the terms of this Agreement and to issue
appropriate stop transfer instructions to the transfer agent for the shares,
consistent with the terms of such affiliate letters.
(b) Xxxxxxx shall file the reports required to be filed by it
under the Exchange Act and the rules and regulations adopted by the SEC
thereunder, and shall take such further action as any Affiliate of RMSI may
reasonably request, all to the extent required from time to time to enable such
Affiliate to sell shares received by such Affiliate in the Merger without
registration under the Securities Act pursuant to (i) Rule 145(d)(1) or (ii) any
successor rule or regulation hereafter adopted by the SEC.
6.11 Expenses. All costs and expenses incurred in connection with this
Agreement and the Ancillary Agreements and the transactions contemplated hereby
and thereby shall be paid by the party incurring such expenses, except that (a)
the filing fees in connection with the filing of the Proxy Statement with the
SEC, (b) the filing fee in connection with the listing of the shares of Xxxxxxx
Common Stock issuable in the Merger and issuable upon exercise of the Rollover
Options and the New Options on the Nasdaq National Market, if any, (c) the
expenses incurred for printing the Proxy Statement, and (d) the filing fee in
connection with the filing(s), if any, under the HSR Act, shall be shared
equally by RMSI, on the one hand, and Xxxxxxx, on the other hand. All costs and
expenses for professional services rendered in connection with the transactions
contemplated by this Agreement and the Ancillary Agreements including, but not
limited to, investment banking and legal services ("Professional Expenses"),
will be paid by each party incurring such costs and expenses. Notwithstanding
anything in this Agreement to the contrary, in the event that the Merger is
consummated, all costs and expenses incurred by Xxxxxxx, RMSI and the RMSI
Stockholders in connection with this Agreement and the Ancillary Agreements and
the transactions contemplated hereby and thereby (including, without limitation,
any and all Professional Expenses) shall be paid by the Surviving Corporation;
provided, however, that the Surviving Corporation shall not be obligated to pay
any expenses incurred by Xx. Xxxxxxxx, Xx. Xxxxxx, Xx. Xxxxxx or Xx. Xxxx in an
amount not to exceed $10,000 in the aggregate.
6.12 Notice of Default.
(a) Promptly upon the occurrence of, or promptly upon RMSI
becoming aware of the impending or threatened occurrence of, any event which
would cause or constitute a breach or default, or would have caused or
constituted a breach or default had such event occurred or been known to the
RMSI prior to the date hereof, of any of the representations, warranties or
covenants of RMSI contained in or referred to in this
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Agreement, the RMSI Disclosure Letter or in any Exhibit referred to in this
Agreement, RMSI shall give detailed written notice thereof to Xxxxxxx and RMSI
shall use its best efforts to prevent or promptly remedy the same.
(b) Promptly upon the occurrence of, or promptly upon Xxxxxxx
becoming aware of the impending or threatened occurrence of, any event which
would cause or constitute a breach or default, or would have caused or
constituted a breach or default had such event occurred or been known to the
Xxxxxxx prior to the date hereof, of any of the representations, warranties or
covenants of Xxxxxxx contained in or referred to in this Agreement, the Xxxxxxx
Disclosure Letter or in any Exhibit referred to in this Agreement, Xxxxxxx give
detailed written notice thereof to RMSI and Xxxxxxx shall use its best efforts
to prevent or promptly remedy the same.
6.13 Filings Under Xxxx-Xxxxx-Xxxxxx Act. As soon as practicable, each
of Xxxxxxx and RMSI shall, if required, file with the Federal Trade Commission
(the "FTC") and the Antitrust Division of the Department of Justice (the
"Antitrust Division") a premerger notification form and any supplemental
information (other than privileged information) which may be requested in
connection therewith pursuant to the Xxxx-Xxxxx-Xxxxxx Act, which filings and
supplemental information will comply in all material respects with the
requirements of the Xxxx-Xxxxx-Xxxxxx Act. Each of Xxxxxxx and RMSI shall
cooperate fully with the other in connection with the preparation of any such
filings and shall use their respective best efforts to respond to any requests
for supplemental information from the FTC or the Antitrust Division and to
obtain early termination of any waiting period applicable to the Merger under
the Xxxx-Xxxxx-Xxxxxx Act. Any and all filing fees required to be paid in
connection with the premerger notification pursuant to the Xxxx-Xxxxx-Xxxxxx Act
shall be borne and paid by one half by Xxxxxxx and one half by RMSI.
6.14 Tax-Free Treatment. Neither Xxxxxxx nor RMSI nor any of the
Xxxxxxx Subsidiaries nor any of the RMSI Subsidiaries shall take or cause to be
taken any action, whether before or after Closing, which would cause the Merger
to fail to qualify as a reorganization under Section 368(a) of the Code.
6.15 Nonsolicitation. Prior to the Effective Time and, in the event
that this Agreement is terminated for any reason, for a period of one (1) year
following the Effective Time, neither Xxxxxxx nor RMSI nor any of the Xxxxxxx
Subsidiaries nor any of the RMSI Subsidiaries shall directly, or indirectly,
solicit for employment or hire any employee of the other party, or any of their
respective subsidiaries, with whom such party has had contact or who became
known to such party in connection with the Merger; provided, however, that the
foregoing provision shall not prohibit (i) the employment of an employee who
contacts the hiring party of his or her own initiative and without any direct or
indirect solicitation by such hiring party or (ii) general advertisement in
newspapers or other periodicals in the ordinary course of business.
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6.16 Financing.
(a) RMSI and Xxxxxxx agree to use commercially reasonable
efforts to refinance their existing senior debt and credit facilities with Chase
Manhattan Bank and First Union National Bank, respectively (the "Senior Debt"),
to the extent required, on terms which are commercially reasonable based upon
the business, operations and financial condition of RMSI and Xxxxxxx (including
any potential Tax liability of RMSI or the Surviving Corporation incurred in
connection with the consummation of the Merger (the "Relevant Factors")) at the
time, as determined independently by Xxxxxxx and RMSI in their respective good
faith judgment.
(b) Xxxxxxx agrees to use commercially reasonable efforts to
assume RMSI's 10 1/8% Senior Subordinated Notes due 2007 (the "RMSI Notes") and
RMSI and Xxxxxxx will if necessary, use commercially reasonable efforts to
obtain any consents or waivers required to permit the assumption of the RMSI
Notes by Xxxxxxx; provided, however, that if Xxxxxxx and RMSI mutually agree to
repurchase and refinance the RMSI Notes, Xxxxxxx and RMSI shall use commercially
reasonable efforts to consummate such repurchase and refinancing on terms which
are commercially reasonable based upon the Relevant Factors at the time, as
determined independently by Xxxxxxx and RMSI in their respective good faith
judgment.
(c) Xxxxxxx agrees to use commercially reasonable efforts to
assist RMSI in completing the exchange offer relating to, and registration of,
the RMSI Notes, including assisting RMSI in the preparation of pro forma
financial statements and providing RMSI with any other information reasonably
required to complete the exchange offer and the registration of the RMSI Notes.
6.17 RMSI Employees. Each employee of RMSI who was an employee of RMSI
immediately prior to the Closing shall (i) be entitled to participate in the
Xxxxxxx Employee Programs (or any similar or successor program) to the same
extent as similarly situated employees of Xxxxxxx, (ii) shall receive credit for
such employee's past service with RMSI as of the Closing for all purposes under
such plans and programs, (iii) to the extent permitted under the terms of such
plans and programs, not to be subject to any waiting periods or limitations on
benefits for pre-existing conditions and shall be given credit for amounts paid
under corresponding plans during the appropriate period prior to the Closing and
(iv) shall be given credit for all accrued but unused vacation time credited to
such employee as of the Closing. Notwithstanding the foregoing, nothing
contained in this Section 6.19 shall confer any rights, remedies, obligations or
liabilities upon any party other than the parties hereto.
6.18 Exchange Offer Registration Statement. RMSI shall use reasonable
best efforts to take all actions necessary, including without limitation,
preparing and filing any additional amendments to its Registration Statement on
Form S-4 initially filed on March 10, 1999 (the "RMSI Registration Statement")
relating to the RMSI Notes, to have the RMSI Registration Statement declared
effective with the SEC under the Securities Act and to consummate the exchange
offer contemplated therein as promptly as practicable thereafter and prior to
the Effective Time. RMSI will cause the RMSI Registration Statement to comply as
to form in all
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material respects with the applicable provisions of the Securities Act and the
rules and regulations thereunder. Each of Xxxxxxx, on the one hand, and RMSI, on
the other hand, shall furnish all information about itself and its business and
operations and all necessary financial information to the other as the other may
reasonably request in connection with the preparation of the RMSI Registration
Statement. RMSI shall use its reasonable best efforts, and Xxxxxxx will
cooperate with them, to have the RMSI Registration Statement declared effective
by the SEC as promptly as practicable but in any event prior to the Effective
Time. Each of Xxxxxxx and RMSI agrees promptly to correct any information
provided by it for use in the RMSI Registration Statement if and to the extent
that such information shall have become false or misleading in any material
respect, and each of the parties hereto further agrees to take all steps
necessary to amend or supplement the RMSI Registration Statement and to cause
the RMSI Registration Statement as so amended or supplemented to be filed with
the SEC and to be disseminated to the holders of the RMSI Notes. Each of Xxxxxxx
and RMSI agrees that the information provided by it in writing for inclusion in
the RMSI Registration Statement and each amendment or supplement thereto, at the
time of mailing thereof, will not include any untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Each of Xxxxxxx and RMSI will advise the other party,
and deliver copies (if any) to them, promptly after receipt thereof, of (i) any
request by or correspondence or communication from the SEC with respect to the
RMSI Registration Statement, (ii) any responses thereto and (iii) notice of the
time when the RMSI Registration Statement has been declared effective or any
supplement or amendment has been filed, the issuance of any stop order.
6.19 Option Registration Statement. Xxxxxxx shall prepare and file with
the SEC under the Securities Act the Option Registration Statement relating to
the registration of shares of Xxxxxxx Common Stock issuable upon the exercise of
the Rollover Options, the New Options and the Director Options. Xxxxxxx and RMSI
will cause the Option Registration Statement to comply as to form in all
material respects with the applicable provisions of the Securities Act and the
rules and regulations thereunder. Xxxxxxx shall use its reasonable best efforts
to have the Option Registration Statement declared effective as promptly as
practicable following the Effective Time.
6.20 Ancillary Agreements. The parties shall use their reasonable best
efforts (i) to enter into a voting agreement in the form attached hereto as
Exhibit D (the "Post-Merger Voting Agreement") by and among each of the RMSI
Stockholders, Monroe & Company, LLC, and JLM Management Company, LLC, (ii) to
obtain an executed SMART Cancellation Consent from each holder of SMARTs and the
agreements representing such holder's SMARTs, (iii) enter into an advisory
agreement in the form attached hereto as Exhibit F (the "Joint Advisory
Agreement") by and among Xxxxxxx, Xxxxxx & Company, LLC and Richmont Capital
Partners I, L.P. and (iv) to enter into the Registration Rights Agreement (as
defined in Section 7.2(e)).
6.21 Spousal Consent. RMSI, Xx. Xxxxxx and Xx. Xxxxxx shall use their
respective best efforts to obtain, no later than seventy-two hours following the
date hereof, a consent in
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substantially the form attached hereto as Exhibit F from the spouses of each of
Xx. Xxxxxx and Xx. Xxxxxx.
ARTICLE 7. CONDITIONS
7.1 Conditions to Each Party's Obligation to Effect the Merger. The
respective obligation of each party to effect the Merger and the other
transactions contemplated herein shall be subject to the fulfillment at or prior
to the Closing Date of the following conditions, any or all of which may be
waived, in whole or in part by the parties hereto, to the extent permitted by
applicable law:
(a) Stockholder Approvals. This Agreement and the Merger shall
have been approved and adopted by the requisite vote of the stockholders of RMSI
and this Agreement, the Merger and the Board Amendment shall have been approved
and adopted by the requisite vote of the stockholders of Xxxxxxx.
(b) Xxxx-Xxxxx-Xxxxxx. All required filings under the
Xxxx-Xxxxx-Xxxxxx Act shall have been completed and all applicable time
limitations under such Act shall have expired without a request for further
information by the relevant federal authorities under such Act, or in the event
of such a request for further information, the expiration of all applicable time
limitations under the Act shall have occurred without the objection of such
federal authorities.
(c) Listing. Xxxxxxx shall have obtained the approval for the
listing of the shares issuable in the Merger on the Nasdaq National Market,
subject to official notice of issuance.
(d) Refinancing. (a) The Senior Debt shall have been
refinanced to the extent required on terms which are commercially reasonable
based upon the Relevant Factors at the time, as determined independently by
Xxxxxxx and RMSI in their respective good faith judgment, (b) (i) Xxxxxxx shall
have assumed the RMSI Notes, (ii) Xxxxxxx and RMSI shall have obtained any
consents or waivers required for Xxxxxxx to assume the RMSI Notes on
commercially reasonable terms as determined independently by both RMSI and
Xxxxxxx in their respective good faith judgment and Xxxxxxx shall have assumed
the RMSI Notes, or (iii) the RMSI Notes shall have been repurchased and
refinanced on terms which are commercially reasonable based upon the Relevant
Factors at the time, as determined independently by Xxxxxxx and RMSI in their
respective good faith judgment ((a) and (b) together, the "Financing"), and (c)
after giving effect to the Merger and the Financing, RMSI and Xxxxxxx, on a
consolidated pro forma basis, shall have available funds to pay all expenses
relating to the consummation of the Merger.
(e) Ancillary Agreements. The Post-Merger Voting Agreement and
the Joint Advisory Agreement shall have been entered into by the parties
thereto.
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(f) No Injunction. No United States federal or state court of
competent jurisdiction or other governmental entity shall have issued a final
order, decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Merger.
7.2 Conditions to Obligations of RMSI to Effect the Merger. The
obligation of RMSI to effect the Merger and the other transactions contemplated
hereby shall be subject to the fulfillment at or prior to the Closing Date of
the following conditions, unless waived by RMSI:
(a) Representations and Warranties. Each of the
representations and warranties of Xxxxxxx contained in this Agreement qualified
as to materiality or Xxxxxxx Material Adverse Effect shall be true and correct
in all respects and the representations and warranties of Xxxxxxx contained in
this Agreement that are not so qualified shall be true and correct in all
material respects, in each case as of the date of this Agreement and as of the
Effective Time as though made on and as of the Effective Time, and RMSI shall
have received a certificate, dated the Closing Date, signed on behalf of Xxxxxxx
by the President of Xxxxxxx to the foregoing effect; provided, however, that (A)
representations and warranties expressly made as of an earlier date need only be
true and correct in all material respects as of such earlier date, (B) no
decrease in the reported price of Xxxxxxx Common Stock, and no loss of any
customers or principals shall be taken into account when determining the truth
or accuracy of any representation or warranty, except to the extent that the
loss of such customers or principals, individually or in the aggregate,
constitute a Material Customer Loss.
(b) Performance of Obligations. Xxxxxxx shall have performed
or complied in all material respects with all agreements and covenants required
by this Agreement to be performed or complied with by Xxxxxxx at or prior to the
Closing.
(c) Certificate from Officers. Xxxxxxx shall have delivered to
RMSI a certificate of its respective President or Chief Financial Officer dated
the Closing Date to the effect that the statements set forth in paragraphs (a)
and (b) above with respect to Xxxxxxx in this Section 7.2 are true and correct.
(d) Opinion of Counsel. RMSI shall have received the opinion
of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP, or another nationally recognized
law firm selected by RMSI, subject to customary conditions and qualifications
(including reliance, in part, on a certificate from an authorized officer of
each of Xxxxxxx and RMSI (collectively, the "Tax Certificates") to the effect
that the Merger will qualify as a reorganization within the meaning of Section
368(a) of the Code, which opinion shall not have been withdrawn or modified in
any material respect.
(e) Registration Rights. Xxxxxxx and the RMSI Stockholders and
shall have entered into a registration rights agreement in the form attached
hereto as Exhibit I-1 (the "Registration Rights Agreement").
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(f) Consents. Xxxxxxx shall have obtained the consents set
forth on Schedule 7.2(g) hereto in a form satisfactory to RMSI.
(g) Option Approval. Xxxxxxx shall have obtained the Xxxxxxx
Option Approval from the stockholders of Xxxxxxx to the extent necessary.
7.3 Conditions to Obligation of Xxxxxxx to Effect the Merger. The
obligations of Xxxxxxx to effect the Merger and the other transactions
contemplated hereby shall be subject to the fulfillment at or prior to the
Closing Date of the following conditions, unless waived by Xxxxxxx:
(a) Representations and Warranties. Each of the
representations and warranties of RMSI contained in this Agreement qualified as
to materiality or RMSI Material Adverse Effect and in Section 3.22 shall be true
and correct in all respects and the representations and warranties of RMSI
contained in this Agreement that are not so qualified (except for the
representations in Section 3.22) shall be true and correct in all material
respects, in each case as of the date of this Agreement and as of the Effective
Time as though made on and as of the Effective Time, and Xxxxxxx shall have
received a certificate, dated the Closing Date, signed on behalf of RMSI by the
President of RMSI to the foregoing effect; provided, however, that (A)
representations and warranties expressly made as of an earlier date need only be
true and correct in all material respects as of such earlier date, and (B) the
loss of any customer or principal shall not be taken into account when
determining the truth or accuracy of any representation or warranty, except to
the extent that the loss of such customers or principals, individually or in the
aggregate, constitute a Material Customer Loss.
(b) Performance of Obligations. RMSI shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by RMSI, at or prior to the
Closing.
(c) Certificate from Officers. RMSI shall have delivered to
Xxxxxxx a certificate of the Chairman of the Board, the President or the Chief
Financial Officer of RMSI dated the Closing Date to the effect that the
statements set forth in paragraphs (a) and (b) above in this Section 7.3 are
true and correct.
(d) Opinion of Counsel. Xxxxxxx shall have received the
opinion of Xxxxxxx, Procter & Xxxx LLP, or another nationally recognized law
firm selected by Xxxxxxx, subject to customary conditions and qualifications
(including reliance, in part, on the Tax Certificates (as defined in Section
7.2(d) to the effect that the Merger will qualify as a reorganization within the
meaning of Section 368(a) of the Code), which opinion shall not have been
withdrawn or modified in any material respect.
(e) Consents. RMSI shall have obtained the consents set forth
on Schedule 7.3(g) hereto in a form satisfactory to Xxxxxxx.
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(f) Registration Rights Agreement. Xxxxxxx and certain
stockholders of Xxxxxxx attached hereto as Exhibit I-2.
ARTICLE 8. TERMINATION; AMENDMENT; WAIVER
8.1 Termination. This Agreement may be terminated and abandoned at any
time prior to the Effective Time, whether before or after approval of matters
presented in connection with the Merger by the stockholders of RMSI and Xxxxxxx:
(a) by mutual written consent of Xxxxxxx and RMSI;
(b) by Xxxxxxx or RMSI, if any United States federal or state
court of competent jurisdiction or other governmental entity shall have issued a
final order, decree or ruling or taken any other action permanently enjoining,
restraining or otherwise prohibiting the Merger and such order, decree, ruling
or other action shall have become final and nonappealable, provided that the
party seeking to terminate shall have used its best efforts to appeal such
order, decree, ruling or other action;
(c) by RMSI, if Xxxxxxx has failed to perform in any material
respect any of its obligations required to be performed by it under this
Agreement and such failure continues for more than 30 days after notice unless
failure to so perform has been caused by or results from a breach of this
Agreement by RMSI;
(d) by Xxxxxxx, if RMSI shall have failed to perform in any
material respect any of its obligations required to be performed by it under
this Agreement and such failure continues for more than 30 days after notice
unless failure to so perform has been caused by or results from a breach of this
Agreement by Xxxxxxx;
(e) (i) by RMSI, if the Board of Directors of Xxxxxxx or the
Special Committee withdraws or modifies in a manner adverse to RMSI its approval
or recommendation of the Merger, or (ii) by Xxxxxxx or RMSI, if the Board of
Directors of Xxxxxxx, or any independent or special committee of the Board of
Directors of Xxxxxxx formed for the purpose of evaluating a Superior Proposal,
recommends a Superior Proposal as provided in Section 6.1(e);
(f) by either Xxxxxxx or RMSI, if this Agreement and the
transactions contemplated hereby shall have failed to receive the requisite vote
for approval and adoption by the stockholders of Xxxxxxx upon the holding of a
duly convened stockholder meeting; or
(g) by either Xxxxxxx or RMSI, if the Merger shall not have
been consummated on or before December 31, 1999 (other than due to the failure
of the party seeking to terminate this Agreement to perform its obligations
under this Agreement required to be performed by it at or prior to the Effective
Time).
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8.2 Effect of Termination.
(a) In the event of termination of this Agreement by either
RMSI or Xxxxxxx as provided in Section 8.1, this Agreement shall forthwith
become void and have no effect, without any liability or obligation on the part
of RMSI or Xxxxxxx, other than the provisions of Sections 6.5(b), 6.5(c), 6.6,
6.11, 6.15, 8.2, 8.3 and 9.4 and the last sentence of Section 9.3. Nothing
contained in this Section 8.2 shall relieve any party for any willful breach of
the representations, warranties, covenants or agreements set forth in this
Agreement or any RMSI Voting Agreement or Xxxxxxx Voting Agreement.
(b) If Xxxxxxx or RMSI terminates this Agreement pursuant to
Section 8.1(e), then Xxxxxxx shall pay to RMSI an amount in cash equal to
$2,500,000 plus out-of-pocket costs and expenses, in connection with this
Agreement and the transactions contemplated hereby, including without limitation
Professional Expenses (the "Termination Amount"). Payment of such Termination
Amount shall be RMSI's exclusive remedy relating to such termination and, upon
Xxxxxxx'x payment of such amount, RMSI shall have no right to any further
damages.
(c) If at any time prior to or within one year after
termination of this Agreement pursuant to Section 8.1(f), Xxxxxxx enters into an
agreement relating to a Post-Termination Acquisition Proposal (as hereinafter
defined) with a person other than RMSI or Xxxxxxx'x Board of Directors
recommends or resolves to recommend to Xxxxxxx'x stockholders approval or
acceptance of a Post-Termination Acquisition Proposal with a person other than
RMSI, then, upon the entry into such agreement or the making of such
recommendation or resolution, Xxxxxxx shall pay to RMSI the Termination Amount
which amount shall be reduced by any monies previously paid by Xxxxxxx to RMSI
pursuant to this Section 8.2. Payment of such Termination Amount shall be RMSI's
exclusive remedy relating to such termination and, upon Xxxxxxx'x payment of
such amount, RMSI shall have no right to any further damages. For purposes of
this Agreement, "Post-Termination Acquisition Proposal" shall mean, with respect
to any person, any Acquisition Proposal made after the termination of this
Agreement.
(d) At any time prior to or within one year after termination
of this Agreement, Xxxxxxx shall not enter into any agreement relating to a
Post-Termination Acquisition Proposal with a Person other than RMSI unless such
agreement provides that such Person shall, upon the execution of such agreement,
pay any Termination Amount otherwise due RMSI under this Section 8.2.
8.3 Extension; Waiver. At any time prior to the Effective Time, the
parties may (a) extend the time for the performance of any of the obligations or
other acts of the other parties, (b) waive any inaccuracies in the
representations and warranties contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) subject to the first sentence of
Section 9.5, waive compliance with any of the agreements or conditions contained
in this Agreement; provided, however, that if either party waives in writing any
inaccuracies in the representations or warranties contained in this Agreement or
any breaches thereof, or the sole
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remedy of such party (the "Determining Party") shall be to consummate the
Merger; provided, further, that whether or not the Merger is consummated, the
Determining Party may not seek any damages or other payments from the other
party hereto arising out of or relating to any such inaccuracies or breaches.
Any agreement on the part of a party to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party. The failure of any party to this Agreement to assert any of its rights
under this Agreement or otherwise shall not constitute a waiver of such rights.
ARTICLE 9. GENERAL PROVISIONS
9.1 Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement shall not survive
the Merger; provided, however, that the agreements contained in Article 2, and
Sections 6.5, 6.9, 6.11, 6.17, 6.19, 8.3 and this Article 9 shall survive the
Merger.
9.2 Notices. Any notice required to be given hereunder shall be in
writing and shall be sent by facsimile transmission (confirmed by any of the
methods that follow), courier service (with proof of service), hand delivery or
certified or registered mail (return receipt requested and first-class postage
prepaid) and addressed as follows:
If to Xxxxxxx:
Xxxxxxx American Corporation
000 Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
With copies to:
Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxxxx X. Cable, P.C.
If to RMSI:
Richmont Marketing Specialists Inc.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxxx Xxxxxxxxx, Esq.
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With copies to:
Richmont Capital Partners I, L.P.
00000 Xxxxx Xxxxxx Xxxxxxx
Xxxxxx, Xxxxx 00000
Attn: Xxxx X. Xxxxxx
and:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx Simon, Esq.
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
delivered.
9.3 Assignment; Binding Effect; Benefit. Neither this Agreement nor any
of the rights, interests or obligations hereunder shall be assigned prior to the
Closing by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Article 2 and Sections 6.9 and 6.11, nothing in this Agreement, expressed or
implied, is intended to confer on any person other than the parties hereto or
their respective heirs, successors, executors, administrators and assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
9.4 Entire Agreement. This Agreement (including all exhibits and
schedules hereto), the Ancillary Agreements, the RMSI Disclosure Letter and the
Xxxxxxx Disclosure Letter and any documents expressly identified in this
Agreement as having been delivered by the parties in connection herewith
including, without limitation, the Xxxxxxx SEC Report and the RMSI SEC Report,
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings among the
partes with respect thereto except that the Confidentiality Agreement shall
remain in effect and shall be binding upon the parties hereto and thereto in
accordance with their respective terms; provided, however, to the extent, any of
the terms of the Confidentiality Agreement are inconsistent with this Agreement
or any of the Ancillary Agreements, this Agreement and such Ancillary Agreements
shall be controlling. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
9.5 Amendment. This Agreement may be amended by the parties hereto, by
action taken by their respective boards of directors, at any time before or
after approval of matters
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presented in connection with the Merger by the stockholders of Xxxxxxx and the
stockholders of RMSI, but after any such stockholder approval, no amendment
shall be made which by law requires the further approval of stockholders without
obtaining such further approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
9.6 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware without regard to its rules of
conflict of laws. RMSI and Xxxxxxx hereby irrevocably and unconditionally
consent to submit to the exclusive jurisdiction of the courts of the State of
Delaware and of the United States of America located in the State of Delaware
(the "Delaware Courts") for any litigation arising out of or relating to this
Agreement and the transactions contemplated hereby (and agrees not to commence
any litigation relating thereto except in such courts), waive any objection to
the laying of venue of any such litigation in the Delaware Courts and agree not
to plead or claim in any Delaware Court that such litigation brought therein has
been brought in any inconvenient forum.
9.7 Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof each
signed by less than all, but together signed by all of the parties hereto.
9.8 Headings. Headings of the Articles and Sections of this Agreement
are for the convenience of the parties only, and shall be given no substantive
or interpretive effect whatsoever.
9.9 Interpretation. In this Agreement, unless the context otherwise
requires, words describing the singular number shall include the plural and vice
versa, and words denoting any gender shall include all genders and words
denoting natural persons shall include corporations and partnerships and vice
versa.
9.10 Waivers. Except as provided in this Agreement, no action taken
pursuant to this Agreement, including, without limitation, any investigation by
or on behalf of any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations, warranties, covenants
or agreements contained in this Agreement. The waiver by any party hereto of a
breach of any provision hereunder shall not operate or be construed as a waiver
of any prior or subsequent breach of the same or any other provision hereunder.
9.11 Incorporation. The RMSI Disclosure Letter, the Xxxxxxx Disclosure
Letter and all Exhibits attached hereto and thereto and referred to herein and
therein are hereby incorporated herein and made a part hereof for all purposes
as if fully set forth herein.
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9.12 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
9.13 Enforcement of Agreement. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions and other equitable remedies to prevent breaches
of this Agreement and to enforce specifically the terms and provisions hereof in
any Delaware Court, this being in addition to any other remedy to which they are
entitled at law or in equity. Any requirements for the securing or posting of
any bond with respect to such remedy are hereby waived by each of the parties
hereto.
9.14 Certain Definitions.
(a) As used in this Agreement, the term "Xxxxxxx Subsidiary"
or "Xxxxxxx Subsidiaries" when used with respect to any party means any
corporation, partnership, joint venture, business trust or other entity, of
which such party directly or indirectly owns or controls at least a majority of
the securities or other interests having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization or a majority
of the economic interest in such entity.
(b) As used in this Agreement, the term "RMSI Subsidiary" or
"RMSI Subsidiaries" means when used with respect to any party means any
corporation, partnership, joint venture, business trust or other entity, of
which such party directly or indirectly owns or controls at least a majority of
the securities or other interests having by their terms ordinary voting power to
elect a majority of the board of directors or others performing similar
functions with respect to such corporation or other organization or a majority
of the economic interest in such entity.
(c) As used in this Agreement, the word "person" means an
individual, a corporation, a partnership, an association, a joint-stock company,
a trust, a limited liability company, any unincorporated organization or any
other entity.
(d) As used in this Agreement, the word "affiliate" shall have
the meaning set forth in Rule 12b-2 of the Exchange Act.
(e) As used in this Agreement, the phrase "transactions
contemplated by this Agreement" shall include without limitation, each act and
transaction to be performed or
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completed under this Agreement or any of the Ancillary Agreements by any party
hereto or thereto.
[remainder of page intentionally left blank]
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[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
IN WITNESS WHEREOF, the parties have executed this Agreement and caused
the same to be duly delivered on their behalf on the day and year first written
above.
XXXXXXX AMERICAN CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President & Chief Executive Officer
RICHMONT MARKETING SPECIALISTS INC.
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: President and Chief Executive Officer
S-1
64
[SIGNATURE PAGE TO AGREEMENT AND PLAN OF MERGER]
RMSI STOCKHOLDERS:
MS ACQUISITION LIMITED
By: MS Acquisition Corporation, its
General Partner
By:/s/ Xxxx Xxxxxx
---------------------------------
Name: Xxxx Xxxxxx
Title: Vice President
/s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxx
---------------------------------
Xxxxx X. Xxxxxx
/s/ Xxxx X. Xxxxxx
---------------------------------
Xxxx X. Xxxxxx
/s/ Xxxxxxx X. Xxxx
---------------------------------
Xxxxxxx X. Xxxx
S-2
