EXHIBIT 99.2
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AGREEMENT AND PLAN OF REORGANIZATION
AMONG
CRA MANAGED CARE, INC.
OCCUSYSTEMS, INC.
AND
CONCENTRA MANAGED CARE, INC.
April 21, 1997
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Table of Contents
Page
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ARTICLE I
FORMATION OF HOLDING COMPANY AND SUBSIDIARIES......................- 2 -
1.1. Holding Company..............................................- 2 -
1.2. Directors and Officers of Holding Company....................- 2 -
1.3. Organization of CRA Merger Subsidiary........................- 2 -
1.4. Actions of Directors and Officers............................- 2 -
1.5. Actions of CRA and OSI.......................................- 3 -
ARTICLE 2
THE MERGERS; CLOSING...............................................- 3 -
2.1. The Mergers..................................................- 3 -
2.2. The Closing..................................................- 4 -
ARTICLE 3
DIRECTORS AND OFFICERS OF CRA MERGER SUB
AND SURVIVING CORPORATIONS.........................................- 4 -
3.1. Directors....................................................- 4 -
3.2. Officers.....................................................- 4 -
ARTICLE 4
EFFECT OF THE MERGERS ON SECURITIES OF
CRA, OSI, HOLDING COMPANY AND THE
CRA MERGER SUB.....................................................- 5 -
4.1. CRA Merger Sub Stock........................................- 5 -
4.2. Holding Company Capital Stock................................- 5 -
4.3. Conversion of CRA Stock......................................- 5 -
4.4. Conversion of OSI Common Stock...............................- 6 -
4.5. Fractional Shares, Etc.......................................- 7 -
4.6 Exchange Fund Exchange Procedures, Etc.......................- 8 -
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF OSI.............................- 11 -
5.1. Existence; Good Standing; Corporate Authority...............- 11 -
5.2. Authorization, Validity and Effect of Agreements............- 11 -
5.3. Capitalization..............................................- 11 -
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5.4. Subsidiaries................................................- 12 -
5.5. Other Interests.............................................- 13 -
5.6. No Conflict; Required Filings and Consents..................- 13 -
5.7. Compliance..................................................- 14 -
5.8. SEC Documents...............................................- 14 -
5.9. Litigation..................................................- 15 -
5.10. Absence of Certain Changes..................................- 15 -
5.11. Taxes.......................................................- 15 -
5.12 Employee Benefit Plans......................................- 16 -
5.13. Labor Matters...............................................- 18 -
5.14. No Brokers..................................................- 18 -
5.15. Opinion of Financial Advisor................................- 18 -
5.16 Preliminary Pooling Letter..................................- 18 -
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF CRA.............................- 19 -
6.1. Existence; Good Standing; Corporate Authority...............- 19 -
6.2. Authorization, Validity and Effect of Agreements............- 19 -
6.3. Capitalization..............................................- 20 -
6.4. Subsidiaries................................................- 20 -
6.5. Other Interests.............................................- 20 -
6.6. No Conflict; Required Filings and Consents..................- 21 -
6.7. Compliance..................................................- 22 -
6.8. SEC Documents...............................................- 22 -
6.9. Litigation..................................................- 23 -
6.10. Absence of Certain Changes..................................- 23 -
6.11. Taxes.......................................................- 23 -
6.12 Employee Benefit Plans......................................- 24 -
6.13. Labor Matters...............................................- 26 -
6.14. No Brokers..................................................- 26 -
6.15. Opinion of Financial Advisor................................- 26 -
6.16 Preliminary Pooling Letter..................................- 26 -
ARTICLE 7
COVENANTS.........................................................- 27 -
7.1. Alternative Proposals.......................................- 27 -
7.2. Interim Operations..........................................- 29 -
7.3. Meetings of Stockholders....................................- 34 -
7.4. Filings, Other Action.......................................- 35 -
7.5. Inspection of Records.......................................- 35 -
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7.6. Publicity...................................................- 36 -
7.7. Registration Statement......................................- 36 -
7.8. Listing Application.........................................- 37 -
7.9. Further Action..............................................- 37 -
7.10. Affiliate Letters...........................................- 37 -
7.11. Expenses....................................................- 38 -
7.12. Insurance; Indemnity........................................- 38 -
7.13. Takeover Statute............................................- 39 -
7.14. Conduct of Business by Holding Company and CRA Merger
Sub Pending the Mergers.....................................- 39 -
7.15. Employee Benefits...........................................- 40 -
7.16. Conveyance Taxes............................................- 40 -
7.17 Incentive Plan..............................................- 40 -
ARTICLE 8
CONDITIONS........................................................- 40 -
8.1. Conditions to Each Party's Obligation to Effect the Mergers.- 40 -
8.2. Conditions to Obligation of OSI to Effect the Mergers.......- 41 -
8.3. Conditions to Obligation of CRA to Effect the Mergers.......- 42 -
ARTICLE 9
TERMINATION.......................................................- 43 -
9.1. Termination by Mutual Consent...............................- 43 -
9.2. Termination by Either CRA or OSI............................- 43 -
9.3. Termination by OSI..........................................- 44 -
9.4. Termination by CRA..........................................- 44 -
9.5. Effect of Termination and Abandonment.......................- 45 -
9.6. Extension, Waiver...........................................- 46 -
ARTICLE 10
GENERAL PROVISIONS................................................- 46 -
10.1. Nonsurvival of Representations, Warranties and Agreements...- 46 -
10.2. Notices.....................................................- 46 -
10.3. Assignment; Binding Effect..................................- 48 -
10.4. Entire Agreement............................................- 48 -
10.5. Amendment...................................................- 48 -
10.6. Governing Law...............................................- 48 -
10.7. Counterparts................................................- 48 -
10.8. Headings....................................................- 49 -
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10.9. Interpretation..............................................- 49 -
10.10.Waivers.....................................................- 49 -
10.11.Incorporation of Exhibits...................................- 49 -
10.12.Severability................................................- 49 -
10.13.Enforcement of Agreement....................................- 49 -
10.14.Subsidiaries................................................- 49 -
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AGREEMENT AND PLAN OF REORGANIZATION
AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement"), dated as of April
21, 1997, among CRA Managed Care, Inc., a Massachusetts corporation ("CRA"),
OccuSystems, Inc., a Delaware corporation ("OSI"), and Concentra Managed Care,
Inc., a Delaware corporation ("Holding Company").
RECITALS
A. The Boards of Directors of CRA, OSI and Holding Company have approved,
and deem it advisable and in the best interests of their respective companies
and stockholders, to consummate the reorganization (the "Reorganization")
provided for herein, pursuant to which (i) Holding Company will acquire all of
the common stock of CRA through the merger of a Subsidiary (as defined in
Section 10.14) of Holding Company with and into CRA and (ii) OSI will be merged
with and into Holding Company.
B. For federal income tax purposes, it is intended that the CRA Merger (as
hereinafter defined) will qualify as an exchange under the provisions of Xxxxxxx
000 xx xxx Xxxxxx Xxxxxx Internal Revenue Code of 1986, as amended (the "Code"),
a tax free reorganization under Section 368(a) of the Code or both, and that the
OSI Merger (as hereafter defined) will qualify as a tax free reorganization
under Section 368(a) of the Code.
C. CRA and OSI desire to make certain representations, warranties,
covenants and agreements in connection with the transactions contemplated
hereby.
D. Simultaneously with the execution and delivery of this Agreement CRA
has entered into a certain CRA Managed Care, Inc. Stock Option Agreement (the
"CRA Stock Option Agreement) pursuant to which OSI has the right to acquire
certain shares of CRA Common Stock subject to and in accordance with the terms
and conditions of said Agreement and simultaneously with the execution and
delivery of this Agreement OSI has entered into a certain OccuSystems, Inc.
Stock Option Agreement (the "OSI Stock Option Agreement") pursuant to which CRA
has the right to acquire certain shares of OSI Common Stock subject to and in
accordance with the terms and conditions of said Agreement.
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE I
FORMATION OF HOLDING COMPANY AND SUBSIDIARIES
1.1. Holding Company. Holding Company is a corporation newly formed for
the purpose of entering into this Agreement and effecting the transactions
contemplated hereby. Holding Company has undertaken no actions and has incurred
no liabilities other than in connection with this Agreement and the transactions
contemplated hereby. The Certificate of Incorporation and By-laws of Holding
Company are set forth on Exhibit A attached hereto. The Certificate of
Incorporation of Holding Company will be amended prior to the Effective Time to
provide that (a) the authorized capital stock of Holding Company shall consist
of 100,000,000 shares of common stock, $.01 par value (the "Holding Company
Common Stock") and 20,000,000 shares of blank check preferred stock, $.01 par
value, (b) Holding Company shall have a staggered board of directors, (c) no
action required to be taken or that may be taken at any meeting of common
stockholders of Holding Company may be taken without a meeting, and the power of
common stockholders to consent in writing, without a meeting, to the taking of
any action is specifically denied, and (d) special meetings of the stockholders
of Holding Company, and any proposals to be considered at such meetings, may be
called and proposed exclusively by Holding Company's Board of Directors, and the
stockholders of Holding Company shall not have the right to call special
meetings of the stockholders or to propose business at a special meeting thereof
(in each of cases (b), (c) and (d), on terms substantially similar to the forms
of such provisions previously reviewed by the parties hereto). Immediately prior
to the Effective Time there shall be no more than 100 shares of Holding Company
Common Stock outstanding.
1.2. Directors and Officers of Holding Company. Immediately following the
execution and delivery of this Agreement the directors and officers of Holding
Company shall be as set forth on Schedule 1.2 attached hereto. Each such officer
and director shall remain in office until his or her successors are elected.
1.3. Organization of CRA Merger Subsidiary. As promptly as practicable
following the execution of this Agreement, Holding Company shall cause CRA
Merger Corp., a corporation organized under the laws of the Commonwealth of
Massachusetts ("CRA Merger Sub") to be organized for the sole purpose of
effectuating the CRA Merger contemplated herein. The Articles of Organization
and By-laws of CRA Merger Sub are and at Closing shall be substantially in the
forms attached hereto as Exhibit B. The authorized capital stock of CRA Merger
Sub are and shall at Closing consist of 100 shares of common stock, par value
$.01 per share, all of which are and at Closing shall be owned by Holding
Company.
1.4. Actions of Directors and Officers. As promptly as practicable
following the execution of this Agreement, Holding Company shall cause (a) the
directors of CRA Merger Sub to ratify and approve the Merger Agreement (as
defined in Section 2.1) to be executed on behalf of the CRA Merger Sub, and (b)
the directors and officers of the CRA Merger Sub to
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take such steps as may be necessary or appropriate to complete the organization
of the CRA Merger Sub and to approve the Merger Agreement (as defined in Section
2.1).
1.5. Actions of CRA and OSI. CRA and OSI, as the holders of all of the
outstanding shares of capital stock of Holding Company, have ratified and
approved this Agreement, and Holding Company, as the sole shareholder of CRA
Merger Sub, has ratified and approved the Merger Agreement. CRA, OSI and Holding
Company agree that they shall not rescind, revoke, condition or impair any such
ratification or approval. CRA and OSI shall cause Holding Company and CRA Merger
Sub to perform their respective obligations under this Agreement and the Merger
Agreements.
ARTICLE 2
THE MERGERS; CLOSING
2.1. The Mergers. Pursuant to Plans of Merger substantially in the forms
attached as Exhibits C and D (sometimes hereinafter referred to individually as
the "CRA Merger Agreement" and the "OSI Merger Agreement", respectively, and
collectively as the "Merger Agreements"), upon the terms and subject to the
conditions set forth in this Agreement and in the Merger Agreements:
(a) CRA Merger Sub shall be merged with and into CRA (the "CRA
Merger") in accordance with the applicable provisions of the laws of the
Commonwealth of Massachusetts. CRA shall be the surviving corporation in
the CRA Merger and shall continue its corporate existence under the laws
of the Commonwealth of Massachusetts. As a result of the CRA Merger, CRA
shall become a wholly owned Subsidiary of Holding Company. The effects and
consequences of the CRA Merger shall be as set forth in the CRA Merger
Agreement and as provided by the laws of the Commonwealth of
Massachusetts.
(b) OSI will be merged with and into Holding Company (the "OSI
Merger"), in accordance with the applicable provisions of the laws of the
State of Delaware. Holding Company shall be the surviving corporation in
the OSI Merger and shall continue its corporate existence under the laws
of the State of Delaware. The effects and consequences of the OSI Merger
shall be as set forth in the OSI Merger Agreement and as provided by the
laws of the State of Delaware. The term "Mergers" shall mean the CRA
Merger and the OSI Merger.
(c) The term "Effective Time" shall mean the time and date which is
(A) the later of (i) the date and time of the filing of the articles of
merger relating to the CRA Merger with the Secretary of State of the
Commonwealth of Massachusetts (or such other date and time as may be
specified in such certificate as may be permitted by law) and (ii) the
date and time of the filing of a certificate of merger with the Secretary
of
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State of the State of Delaware with respect to the OSI Merger (or such
other date and time as may be specified in such certificate as may be
permitted by law) or (B) such other time and date as CRA and OSI may
agree.
2.2. The Closing. Subject to the terms and conditions of this Agreement,
the closing of the transactions contemplated by this Agreement and the Merger
Agreements (the "Closing") shall take place (a) at the offices of Xxxxxxxx,
Xxxxxxx & Xxxxxxx, A Professional Corporation, Boston, Massachusetts at 10:00
a.m., local time, on the third business day following the day on which the last
to be fulfilled or waived of the conditions set forth in Article 8 shall be
fulfilled or waived in accordance herewith or (b) at such other time, date or
place as CRA and OSI may agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
ARTICLE 3
DIRECTORS AND OFFICERS OF CRA MERGER SUB
AND SURVIVING CORPORATIONS
3.1. Directors. The persons listed on Schedule 3.1(a) shall be the
directors of the surviving corporation of the CRA Merger as of the Effective
Time and until their successors are duly appointed or elected in accordance with
applicable law. The directors of the surviving corporation of the OSI Merger as
of the Effective Time shall include four (4) individuals appointed by CRA and
four (4) individuals appointed by OSI. The persons listed on Schedule 3.1(b)
shall be the directors of OccuCenters, Inc. ("OCI"), a wholly owned subsidiary
of Holding Company, as of the Effective Time and until their successors are duly
appointed or elected in accordance with applicable law. The Board of Directors
of the surviving corporation of the OSI Merger as of the Effective Time shall
establish the following committees: (i) a Compensation Committee consisting of
three (3) members including one independent director; (ii) an Audit Committee
consisting of two (2) members; and (iii) a Nominating Committee consisting of
two (2) members.
3.2. Officers. The persons listed on Schedules 3.2(a) and 3.2(b) shall be
the officers of the surviving corporations of the CRA Merger and the OSI Merger,
respectively, as of the Effective Time and until their successors are duly
appointed or elected in accordance with applicable law. The persons listed on
Schedule 3.2(c) shall be the officers of OCI as of the Effective Time and until
their successors are duly appointed or elected in accordance with applicable
law.
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ARTICLE 4
EFFECT OF THE MERGERS ON SECURITIES OF
CRA, OSI, HOLDING COMPANY AND THE
CRA MERGER SUB
4.1. CRA Merger Sub Stock. At the Effective Time, each share of the common
stock of CRA Merger Sub outstanding immediately prior to the Effective Time
shall be converted into and shall become one share of common stock of the
surviving corporation of the CRA Merger.
4.2. Holding Company Capital Stock. At the Effective Time, each share of
the capital stock of Holding Company issued and outstanding immediately prior to
the Effective Time shall be canceled and retired without payment of any
consideration therefor.
4.3. Conversion of CRA Stock. (a) Subject to Section 4.3(b), at the
Effective Time, each share of common stock, par value $0.01 per share, of CRA
("CRA Common Stock") issued and outstanding at the Effective Time shall be
converted into the right to receive 1.786 (the "CRA Ratio") shares of Holding
Company Common Stock, payable upon the surrender of the certificates formerly
representing CRA Common Stock pursuant to Section 4.6.
(b) As a result of the CRA Merger and without any action on the part of
the holder thereof, at the Effective Time all shares of CRA Common Stock shall
cease to be outstanding and shall be canceled and retired and shall cease to
exist, and each holder of shares of CRA Common Stock shall thereafter cease to
have any rights with respect to such shares of CRA Common Stock, except the
right to receive the number of shares of Holding Company Common Stock determined
in accordance with Section 4.3(a), cash without interest, for fractional shares
of Holding Company Common Stock in accordance with Section 4.5 and dividends or
other distributions, if any, in accordance with Section 4.5 upon the surrender
of a certificate representing such shares of CRA Common Stock (a "CRA
Certificate").
(c) At the Effective Time, each share of CRA Common Stock which is held in
the treasury of CRA immediately prior to the Effective Time shall, by virtue of
the Mergers, cease to be outstanding and shall be canceled and retired without
payment of any consideration therefor.
(d) Notwithstanding anything in this Section 4.3 to the contrary, shares
of CRA Common Stock which are issued and outstanding immediately prior to the
Effective Time and which are held by stockholders who have not voted such shares
in favor of the CRA Merger and who shall have properly exercised their rights of
appraisal for such shares in the manner provided by the Massachusetts General
Business Corporation Law, Chapter 156B (the "MBCL") (the "CRA Dissenting
Shares"), shall not be converted into the right to receive the Holding Company
Common Stock, unless and until such holder shall have failed to perfect or
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shall have effectively withdrawn or lost his right to appraisal and payment, as
the case may be. If such holder shall have so failed to perfect or shall have
effectively withdrawn or lost such right, his shares shall thereupon be deemed
to have been converted into, at the Effective Time, the right to receive the
Holding Company Common Stock plus cash in accordance with Section 4.5 and
Section 4.6. CRA shall give OSI prompt notice of any CRA Dissenting Shares (and
shall also give OSI prompt notice of any withdrawals of such demands for
appraisal rights) and Holding Company shall have the right to direct all
negotiations and proceedings with respect to any such demands. Neither CRA nor
the surviving corporation of the CRA Merger shall, except with the prior written
consent of Holding Company, voluntarily make any payment with respect to, or
settle or offer to settle, any such demand for appraisal rights.
(e) At the Effective Time, each outstanding option or right to purchase
shares of CRA Common Stock (a "CRA Option") shall be assumed by Holding Company
in such manner that it is converted into an option to purchase shares of Holding
Company Common Stock, as provided below. Following the Effective Time, each such
CRA Option shall be exercisable upon the same terms and conditions as then are
applicable to such CRA Option, except that (i) each such CRA Option shall be
exercisable for that number of shares of Holding Company Common Stock equal to
the product of (x) the number of shares of CRA Common Stock for which such CRA
Option was exercisable and (y) the CRA Ratio and (ii) the exercise price of such
option shall be equal to the exercise price of such option as of the date hereof
divided by the CRA Ratio. It is the intention of the parties that, to the extent
that any such CRA Option constituted an "incentive stock option" (within the
meaning of Section 422 of the Code) immediately prior to the Effective Time,
such option continue to qualify as an incentive stock option to the maximum
extent permitted by Section 422 of the Code, and that the assumption of CRA
Stock Options provided by this Section 4.3(e) satisfy the conditions of Section
424(a) of the Code. From and after the date of this Agreement, no additional
options to purchase shares of CRA Common Stock shall be granted under the CRA
1994 Time Accelerated Restricted Stock Option Plan, the CRA 1994 Non-Qualified
Stock Option Plan for Non-Employee Directors, the CRA 1997 Stock Option Plan or
any other CRA option, stock or other benefit plan or agreement (collectively,
the "CRA Stock Option Plans") (other than (i) the grant of options to
individuals other than executive officers of CRA to acquire up to 15,000 shares
of CRA Common Stock pursuant to the terms of the CRA Stock Option Plans at an
exercise price of not less than the fair market value of the CRA Common Stock on
the date of grant and (ii) the option granted to OSI on the date hereof).
4.4. Conversion of OSI Common Stock. (a) Subject to Sections 4.4(c) and
4.4(d), at the Effective Time each issued and outstanding share of Common Stock,
$.01 par value of OSI (the "OSI Common Stock"), shall be converted into the
right to receive one (the "OSI Ratio") share of Holding Company Common Stock,
payable upon the surrender of the certificates formerly representing OSI Common
Stock pursuant to Section 4.6.
(b) As a result of the OSI Merger and without any action on the part of
the holders thereof, at the Effective Time all shares of OSI Common Stock shall
cease to be outstanding
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and shall be canceled and retired and shall cease to exist, and each holder of
shares of OSI Common Stock shall thereafter cease to have any rights with
respect to such shares of OSI Common Stock, except the right to receive the
number of shares of Holding Company Common Stock determined in accordance with
Section 4.4(a), cash, without interest, for fractional shares of Holding Company
Common Stock in accordance with Section 4.5 and dividends or other
distributions, if any, in accordance with Section 4.5 upon the surrender of a
certificate representing such shares of OSI Common Stock (an "OSI Certificate").
(c) Notwithstanding anything contained in this Section 4.4 to the
contrary, each share of OSI Common Stock issued and held in OSI's treasury
immediately prior to the Effective Time shall, by virtue of the OSI Merger,
cease to be outstanding and shall be canceled and retired without payment of any
consideration therefor.
(d) At the Effective Time, each outstanding option or right to purchase
shares of OSI Common Stock (a "OSI Option") shall be assumed by Holding Company
in such manner that it is converted into an option to purchase shares of Holding
Company Common Stock, as provided below. Following the Effective Time, each such
OSI Option shall be exercisable upon the same terms and conditions as then are
applicable to such OSI Option, except that (i) each such OSI Option shall be
exercisable for that number of shares of Holding Company Common Stock equal to
the product of (x) the number of shares of OSI Common Stock for which such OSI
Option was exercisable and (y) the OSI Ratio and (ii) the exercise price of such
option shall be equal to the exercise price of such option as of the date hereof
divided by the OSI Ratio. It is the intention of the parties that, to the extent
that any such OSI Option constituted an "incentive stock option" (within the
meaning of Section 422 of the Code) immediately prior to the Effective Time,
such option continue to qualify as an incentive stock option to the maximum
extent permitted by Section 422 of the Code, and that the assumption of OSI
Options provided by this Section 4.4(d) satisfy the conditions of Section 424(a)
of the Code. From and after the date of this Agreement, no additional options to
purchase shares of OSI Common Stock shall be granted under the OSI 1995
Long-Term Incentive Plan, the First Amended and Restated OSI and its
Subsidiaries and Affiliates Stock Option and Restricted Stock Purchase Plan, the
currently existing stock option agreements of OSI not governed by such plans or
any other OSI option, stock or other benefit plan or agreement (collectively,
the "OSI Stock Option Plans") (other than (i) the grant of options to
individuals other than executive officers of OSI to acquire up to 15,000 shares
of OSI Common Stock pursuant to the terms of the OSI Stock Option Plans at an
exercise price of not less than fair market value of the OSI Common Stock on the
date of grant and (ii) the option granted to CRA on the date hereof).
4.5. Fractional Shares, Etc. No certificate or scrip representing
fractional shares of Holding Company Common Stock shall be issued upon the
surrender for exchange of Certificates (as hereinafter defined) except pursuant
to this Section 4.5, no dividend or other distribution, stock split or interest
shall relate to any such fractional shares, and such fractional shares shall not
entitle the holder thereof to vote or to any rights of a security holder of
Holding Company. In lieu of any fractional shares, each holder of shares of
Converted Stock (as
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hereinafter defined) who would otherwise have been entitled to a fraction of a
share of Holding Company Common Stock upon surrender of Certificates for
exchange pursuant to this Article 4 will be paid an amount of cash (without
interest) equal to such holder's proportionate interest in the sum of (i) the
gross proceeds from the sale or sales by the Exchange Agent (as hereinafter
defined) in accordance with the provisions of this Section 4.5, on behalf of all
such holders of shares of Converted Stock, of the aggregate fractional shares of
Holding Company Common Stock issued pursuant to this Article 4 and (ii) the
aggregate dividends or other distributions that are payable to holders of shares
of Converted Stock with respect to such shares of Holding Company Common Stock
pursuant to Section 4.6(c) (such dividends and distributions being herein called
the "Fractional Dividends"). As soon as practicable following the Effective
Time, the Exchange Agent shall determine the excess of (x) the number of full
shares of Holding Company Common Stock delivered to the Exchange Agent by
Holding Company pursuant to Section 4.6(a) over (y) the aggregate number of full
shares of Holding Company Common Stock to be distributed to the holders of
Converted Stock pursuant to Section 4.3 (with respect to CRA Common Stock) and
Section 4.4 (with respect to OSI Common Stock) (such excess being herein called
the "Excess Securities") and the Exchange Agent, as agent for the former holders
of Converted Stock, shall sell the Excess Securities at the prevailing prices on
the Nasdaq National Market. The sale of the Excess Securities by the Exchange
Agent shall be executed on the Nasdaq National Market through one or more member
firms of the National Association of Securities Dealers, Inc. Holding Company
shall pay all commissions, transfer taxes and other out-of-pocket transaction
costs, including the expenses and compensation of the Exchange Agent, incurred
in connection with such sale of Excess Securities. Until the gross proceeds of
such sale of Excess Securities and the Fractional Dividends, if any, have been
distributed to the former holders of shares of Converted Stock, the Exchange
Agent will hold such proceeds and dividends in trust for such former holders.
4.6 Exchange Fund Exchange Procedures, Etc. (a) At or prior to the
Effective Time, Holding Company shall deposit, or cause to be deposited, with a
bank or trust company designated by Holding Company (the "Exchange Agent"), for
the benefit of the holders of CRA Common Stock and OSI Common Stock which were
outstanding immediately prior to the Effective Time, for exchange in accordance
with this Section 4.6, through the Exchange Agent, (i) certificates evidencing a
number of shares of Holding Company Common Stock equal to the aggregate number
issuable to holders of CRA Common Stock pursuant to Section 4.3, together with
any dividend or distribution with respect thereto and (ii) certificates
evidencing a number of shares of Holding Company Common Stock equal to the
aggregate number issuable to holders of OSI Common Stock pursuant to Section
4.4, together with any dividend or distribution with respect thereto. The
certificates and cash deposited with the Exchange Agent in accordance with this
subsection 4.6(a) are hereinafter referred to as the "Exchange Fund." The
Exchange Agent shall, pursuant to irrevocable instructions, deliver Holding
Company Common Stock and cash, as described above, in exchange for surrendered
certificates representing CRA Common Stock and OSI Common Stock pursuant to the
terms of this Agreement out of the Exchange Fund.
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(b) As soon as practicable after the Effective Time, Holding Company shall
cause the Exchange Agent to send to each record holder of a certificate or
certificates which, at the Effective Time, represent outstanding shares of CRA
Common Stock or OSI Common Stock (the "Certificates"), which holder's shares of
CRA Common Stock or OSI Common Stock were converted into the right to receive
shares of Holding Company Common Stock (the "Converted Stock") pursuant to
Section 4.3 and 4.4, respectively, (i) a letter of transmittal (which shall
specify that delivery shall be effected, and risk of loss and title to the
certificates theretofore representing the Converted Stock shall pass, only upon
delivery of the Certificates to the Exchange Agent and shall be in such form and
contain such other provisions as Holding Company shall reasonably determine),
and (ii) instructions for use in effecting the surrender of the Certificates in
exchange for certificates representing shares of Holding Company Common Stock.
Upon surrender of a Certificate for cancellation to the Exchange Agent, together
with such letter of transmittal, duly executed, the holder of such Certificate
shall be entitled to receive in exchange therefor a certificate representing
that number of whole shares of Holding Company Common Stock and cash in lieu of
fractional shares as contemplated by Section 4.5, if any, which such holder has
the right to receive pursuant to the provisions of this Article 4, and the
Certificate so surrendered shall forthwith be canceled. In the event of a
transfer of ownership of Converted Stock which is not registered in the transfer
records of the Company, a certificate evidencing the proper number of shares of
Holding Company Common Stock may be issued to the transferee if the certificate
evidencing the Converted Stock, as the case may be, shall be surrendered to the
Exchange Agent, accompanied by all documents required to evidence and effect
such transfer and by evidence that any applicable stock transfer taxes have been
paid. Until surrender for exchange in accordance with the provisions of Section
4.6 of this Agreement, each Certificate theretofore representing shares of
Converted Stock (other than any CRA Dissenting Shares) shall from and after the
Effective Time represent for all purposes only the right to receive the number
of shares of Holding Company Common Stock and cash in lieu of fractional shares,
if any, as set forth in this Agreement. If any holder of Converted Stock shall
be unable to surrender such holder's Certificates because such Certificates have
been lost or destroyed, such holder may deliver in lieu thereof an affidavit and
indemnity bond in the form and substance and with surety reasonably satisfactory
to Holding Company.
(c) No dividends or other distributions with respect to Holding Company
Common Stock declared or made after the Effective Time with a record date after
the Effective Time shall be paid to the holder of any unsurrendered Certificate
with respect to the right to receive shares of Holding Company Common Stock
represented thereby, and no cash payment in lieu of fractional shares shall be
paid to any such holder pursuant to Section 4.5, until the holder of such
Certificate shall surrender such Certificate in accordance herewith. Subject to
the effect of applicable laws, following the surrender of any such Certificate,
there shall be paid to the holder thereof, without interest: (i) at the time of
such surrender, the amount of any cash payable in lieu of a fractional share of
Holding Company Common Stock to which such holder is entitled pursuant to
Section 4.5 and the amount of dividends or distributions with a record date
after the Effective Time theretofore paid with respect to such whole shares of
Holding
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Company Common Stock, if any; and (ii) at the appropriate payment date, the
amount of dividends or other distributions with a record date after the
Effective Time but prior to such surrender and a payment date subsequent to such
surrender payable with respect to such whole shares of Holding Company Common
Stock, if any.
(d) All shares of Holding Company Common Stock issued upon surrender for
exchange of shares of Converted Stock in accordance with the terms hereof
(including any cash paid pursuant to Section 4.5) shall be deemed to have been
issued in full satisfaction of all rights pertaining to such shares of Converted
Stock.
(e) Any portion of the Exchange Fund that remains unclaimed by the former
holders of Converted Stock on the first anniversary of the Closing Date shall be
delivered to Holding Company upon demand, and any former holders of Converted
Stock who have not theretofore complied with this Article 4 shall thereafter
look only to Holding Company for the number of shares of Holding Company Common
Stock and cash in lieu of fractional shares, if any, as set forth in this
Agreement. Holding Company shall not be liable to any former holder of Converted
Stock for any Holding Company Common Stock or cash delivered to a public
official pursuant to any applicable abandoned property, escheat or similar law.
(f) Holding Company (or any affiliate thereof) shall be entitled to deduct
and withhold from the consideration otherwise payable pursuant to this Agreement
to any former holder of Converted Stock such amounts as Holding Company (or any
affiliate thereof) is required to deduct and withhold with respect to the making
of such payment under the Code or any other provision of federal, state, local
or foreign tax law and Holding Company agrees to remit to the proper taxing
authority such amounts so withheld. To the extent that amounts are so withheld
by Holding Company, such withheld amounts shall be treated for all purposes of
this Agreement as having been paid to the former holder of Converted Stock in
respect of which such deduction and withholding was made by Holding Company.
Holding Company shall, within a reasonable period of time prior to withholding
any such amount, inform CRA and OSI of its intent to deduct and withhold any
amounts pursuant to this Section 4.6(d) and will cooperate with CRA and OSI in
taking commercially reasonable actions necessary to avoid and/or minimize the
amounts required to be deducted and withheld from the consideration payable
pursuant to this Agreement. Holding Company agrees to promptly pay to the former
holders of Converted Stock any refunded amounts received by Holding Company that
are attributable to such withholding.
(g) Certificates surrendered for exchange by any person constituting an
"affiliate" of CRA or OSI for purposes of Rule 145(c) under the Securities Act
of 1933, as amended (the "Securities Act"), shall not be exchanged until Holding
Company has received a written agreement from such person as provided in Section
7.10.
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ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF OSI
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to CRA (the "OSI Disclosure Letter") or in OSI Reports (as
defined below), OSI represents and warrants to CRA as of the date of this
Agreement as follows:
5.1. Existence; Good Standing; Corporate Authority. OSI is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. OSI 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 or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified or to be in
good standing would not have a material adverse effect on the business, results
of operations, financial condition or prospects of OSI and its Subsidiaries
taken as a whole (an "OSI Material Adverse Effect"). OSI has all requisite
corporate power and authority to own, operate and lease its properties and carry
on its business as now conducted. Each of OSI's Significant Subsidiaries (as
defined in Section 10.14 hereof) is a corporation, partnership or limited
liability company duly organized, validly existing and in good standing under
the laws of its jurisdiction of incorporation or organization, has the
corporate, partnership or other similar power and authority to own its
properties and to carry on its business as it is now being 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 an OSI Material Adverse Effect. The
copies of OSI's Certificate of Incorporation and Bylaws previously made
available to CRA are true and correct.
5.2. Authorization, Validity and Effect of Agreements. OSI has the
requisite corporate power and authority to execute and deliver this Agreement
and all agreements and documents contemplated hereby. Subject only to the
approval of this Agreement and the transactions contemplated hereby by the
holders of a majority of the outstanding shares of OSI Common Stock, the
consummation by OSI of the transactions contemplated hereby has been duly
authorized by all requisite corporate action. This Agreement constitutes, and
all agreements and documents contemplated hereby (when executed and delivered
pursuant hereto for value received) will constitute, the valid and legally
binding obligations of OSI, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
5.3. Capitalization. The authorized capital stock of OSI consists of
50,000,000 shares of OSI Common Stock and 20,000,000 shares of preferred stock,
no par value (the "OSI Preferred Stock"). As of March 31, 1997, (a) 21,579,898
shares of OSI Common Stock
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were issued and outstanding, (b) no shares of preferred stock were issued and
outstanding, (c) 2,518,094 shares of OSI Common Stock were reserved for issuance
pursuant to the OSI Stock Option Plans, (d) there were no shares of OSI Common
Stock held in OSI's treasury, (e) 200,000 shares of OSI Common Stock were
reserved for issuance pursuant to certain warrants issued by OSI, (f) 3,291,246
shares of OSI Common Stock were reserved for issuance upon conversion of the 6%
Convertible Subordinated Notes due 2001 of OSI in the aggregate principal amount
of $97,750,000 (the "OSI Convertible Notes") and (g) 26,482 shares of OSI Common
Stock were reserved for issuance upon conversion of that certain 6% Convertible
Promissory Note dated October 1, 1993 issued by OSI to Xxxx Xxxxxxxx, D.O. in
connection with the Stock Purchase Agreement dated October 1, 1993 between an
OSI Subsidiary and Xxxx Xxxxxxxx, D.O. (the "Xxxxxxxx Note"). Since March 31,
1997, (i) no additional shares of capital stock of OSI have been issued, except
pursuant to the terms existing on the date hereof of the OSI Stock Option Plans
and (ii) no options or other rights to acquire shares of OSI's capital stock
have been granted (other than (i) options that have been or may be granted after
March 31, 1997 to individuals other than executive officers of OSI to acquire up
to 15,000 shares of OSI Common Stock pursuant to the terms of the OSI Stock
Option Plans at an exercise price of not less than the fair market value of the
OSI Common Stock on the date of grant and (ii) the option granted to CRA on the
date hereof). Other than the OSI Convertible Notes and the Xxxxxxxx Note, OSI
has no outstanding bonds, debentures, notes or other obligations the holders of
which have the right to vote (or which are convertible into or exercisable for
securities having the right to vote) with the stockholders of OSI on any matter.
All issued and outstanding shares of OSI Common Stock are duly authorized,
validly issued, fully paid, nonassessable and free of preemptive rights. There
are not at the date of this Agreement any existing options, warrants, calls,
subscriptions, convertible securities, or other rights, agreements or
commitments which obligate OSI or any of its Subsidiaries to issue, transfer or
sell any shares of capital stock of OSI or any of its Subsidiaries (other than
under the OSI Stock Option Plans, the OSI Convertible Notes and the Xxxxxxxx
Note).
5.4. Subsidiaries. OSI owns directly or indirectly each of the outstanding
shares of capital stock (or other ownership interests having by their terms
ordinary voting power to elect a majority of directors or others performing
similar functions with respect to such OSI Significant Subsidiary) of each of
OSI's Significant Subsidiaries. Each of the outstanding shares of capital stock
of each of OSI's Significant Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable, and is owned, directly or indirectly, by OSI. Each
of the outstanding shares of capital stock of each Significant Subsidiary of OSI
is owned, directly or indirectly, by OSI free and clear of all liens, pledges,
security interests, claims or other encumbrances other than liens in favor of
Creditanstalt-Bankverein, as agent, under OSI's existing Loan and Security
Agreement therewith and liens imposed by local law which are not material. The
following information for each Significant Subsidiary of OSI has been previously
provided to CRA, if applicable: (i) its name and jurisdiction of incorporation
or organization; (ii) its authorized capital stock or share capital; and (iii)
the number of issued and outstanding shares of capital stock or share capital.
All of the Subsidiaries of OSI other
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than the Significant Subsidiaries, when taken together, do not in the aggregate
constitute a Significant Subsidiary of OSI.
5.5. Other Interests. Except for interests in OSI Subsidiaries, neither
OSI nor any OSI Significant Subsidiary owns directly or indirectly any interest
or investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity (other than investments of less than
$1,000,000 in the aggregate).
5.6. No Conflict; Required Filings and Consents. (a) The execution and
delivery of this Agreement by OSI do not, and the consummation by OSI of the
transactions contemplated hereby will not, (i) conflict with or violate the
certificate of incorporation or by-laws or equivalent organizational documents
of (x) OSI or (y) any OSI Significant Subsidiary, (ii) subject to making the
filings and obtaining the approvals identified in Section 5.6(b) hereof,
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to OSI or any OSI Subsidiary or by which any property or asset of OSI
or any OSI Subsidiary is bound or affected, or (iii) subject to making the
filings and obtaining the approvals identified in Section 5.6(b) hereof, result
in any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, result in the loss of a material
benefit under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of OSI or any OSI Subsidiary pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which OSI or any OSI Subsidiary is a party or by which OSI or any
OSI Subsidiary or any property or asset of OSI or any OSI Subsidiary is bound or
affected, except, in the case of clauses (i)(y), (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay consummation of any of the transactions contemplated hereby in
any material respect, or otherwise prevent OSI from performing its obligations
under this Agreement in any material respect, and would not, individually or in
the aggregate, have an OSI Material Adverse Effect. The execution and delivery
of this Agreement by OSI do not, and the consummation by OSI of the transactions
contemplated hereby will not, result in any material breach of or constitute a
material default (or an event which with notice or lapse of time or both would
become a material default) under, result in the loss of a material benefit
under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of OSI or any OSI Subsidiary pursuant to, any Material Contract to which OSI or
any OSI Subsidiary is a party or by which OSI or any OSI Subsidiary or any
property or asset of OSI or any OSI Subsidiary is bound or affected. For the
purposes hereof, "Material Contract", as such term relates to OSI, shall mean
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation that is required to be
listed as an Exhibit to OSI's Form 10-K filed with the SEC (as hereinafter
defined) with respect to its year ended December 31, 1996.
- 13 -
(b) The execution and delivery of this Agreement by OSI do not, and the
performance of this Agreement and the consummation by OSI of the transactions
contemplated hereby will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, domestic or foreign (each a "Governmental Entity"), except (i) for
(A) applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933, as amended (the
"Securities Act"), state securities or "blue sky" laws ("Blue Sky Laws") and
state takeover laws, (B) the pre-merger notification requirements of the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended, and the rules
and regulations thereunder (the "HSR Act"), (C) filing and recordation of
appropriate merger and similar documents as required by Delaware law and
Massachusetts law and (D) applicable requirements, if any, of the Code and
state, local and foreign tax laws, and (ii) where failure to obtain such
consents, approvals, authorizations or permits, or to make such filings or
notifications, would not prevent or delay consummation of any of the
transactions contemplated hereby in any material respect, or otherwise prevent
OSI from performing its obligations under this Agreement in any material
respect, and would not, individually or in the aggregate, have an OSI Material
Adverse Effect.
5.7. Compliance. Neither OSI nor any OSI Subsidiary is in conflict with,
or in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to OSI or any OSI Subsidiary or by which any property or asset
of OSI or any OSI Subsidiary is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which OSI or any OSI Subsidiary is a party or
by which OSI or any OSI Subsidiary or any property or asset of OSI or any OSI
Subsidiary is bound or affected, in each case except for any such conflicts,
defaults or violations that would not, individually or in the aggregate, have an
OSI Material Adverse Effect. OSI and its Subsidiaries have obtained all
licenses, permits and other authorizations and have taken all actions required
by applicable law or governmental regulations in connection with their business
as now conducted, where the failure to obtain any such item or to take any such
action would have, individually or in the aggregate, an OSI Material Adverse
Effect.
5.8. SEC Documents. (a) OSI has filed all forms, reports and documents
required to be filed by it with the Securities and Exchange Commission ("SEC")
since May 8, 1995 (collectively, the "OSI Reports"). As of their respective
dates, the OSI Reports and any such reports, forms and other documents filed by
OSI with the SEC after the date of this Agreement (i) complied, or will comply,
as to form in all material respects with the applicable requirements of the
Securities Act, the Exchange Act, and the rules and regulations thereunder and
(ii) did not, or will 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. The representation in clause (ii) of the preceding
sentence shall not apply to any misstatement or omission in any OSI Report filed
prior to the date of this Agreement which was superseded by
- 14 -
a subsequent OSI Report filed prior to the date of this Agreement. No OSI
Subsidiary is required to file any report, form or other document with the SEC.
(b) Each of the consolidated balance sheets of OSI included in or
incorporated by reference into OSI Reports (including the related notes and
schedules) fairly presents the consolidated financial position of OSI and OSI
Subsidiaries as of its date, and each of the consolidated statements of income,
retained earnings and cash flows of OSI included in or incorporated by reference
into OSI Reports (including any related notes and schedules) fairly presents the
results of operations, retained earnings or cash flows, as the case may be, of
OSI and the OSI 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 as may be noted therein. Neither OSI nor any of the OSI Subsidiaries has
any liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) that would be required to be reflected on, or reserved
against in, a balance sheet of OSI or in the notes thereto, prepared in
accordance with generally accepted accounting principles consistently applied,
except for (i) liabilities or obligations that were so reserved on, or reflected
in (including the notes to), the consolidated balance sheet of OSI as of
December 31, 1996; (ii) liabilities or obligations arising in the ordinary
course of business since December 31, 1996 and (iii) liabilities or obligations
which would not, individually or in the aggregate, have an OSI Material Adverse
Effect.
5.9. Litigation. There are no actions, suits or proceedings pending
against OSI or the OSI Subsidiaries or, to the actual knowledge of the executive
officers of OSI, threatened against OSI or the OSI Subsidiaries, at law or in
equity, or before or by any federal or state commission, board, bureau, agency
or instrumentality, that are reasonably likely to have an OSI Material Adverse
Effect.
5.10. Absence of Certain Changes. Except as specifically contemplated by
this Agreement, since December 31, 1996, there has not been (i) any OSI Material
Adverse Effect; (ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to its capital stock; or (iii) any material
change in its accounting principles, practices or methods.
5.11. Taxes. (a) OSI and each of the OSI Subsidiaries has filed all
material tax returns and reports required to be filed by it, or requests for
extensions to file such returns or reports have been timely filed and granted
and have not expired, and all tax returns and reports are complete and accurate
in all respects, except to the extent that such failures to file, have
extensions granted that remain in effect or be complete and accurate in all
respects, as applicable, individually or in the aggregate, would not have an OSI
Material Adverse Effect. OSI and each of the OSI Subsidiaries have paid (or OSI
has paid on its behalf) all taxes shown as due on such tax returns and reports.
The most recent financial statements contained in the OSI Reports reflect an
adequate reserve for all taxes payable by OSI and the OSI Subsidiaries
- 15 -
for all taxable periods and portions thereof accrued through the date of such
financial statements, and no deficiencies for any taxes have been proposed,
asserted or assessed against OSI or any OSI Subsidiary that are not adequately
reserved for, except for inadequately reserved taxes and inadequately reserved
deficiencies that would not, individually or in the aggregate, have an OSI
Material Adverse Effect. No requests for waivers of the time to assess any taxes
against OSI or any OSI Subsidiary have been granted or are pending, except for
requests with respect to such taxes that have been adequately reserved for in
the most recent financial statements contained in the OSI Reports, or, to the
extent not adequately reserved, the assessment of which would not, individually
or in the aggregate, have an OSI Material Adverse Effect.
(b) Neither OSI nor any OSI Subsidiary has taken any action or has any
knowledge of any fact or circumstance that is reasonably likely to prevent the
OSI Merger from qualifying as a reorganization governed by Section 368(a) of the
Code.
(c) As used herein,"taxes" shall include all Federal, state, local and
foreign income, franchise, property, sales, use, excise and other taxes, fees,
assessments or charges of any kind or nature whatsoever imposed by any
governmental authority, including obligations for withholding taxes from
payments due or made to any other person and any interest, penalties or
additions to tax.
5.12 Employee Benefit Plans.
(a) The OSI Disclosure Letter lists each of the following which is
sponsored, maintained, or contributed to by OSI or any OSI
Subsidiary for the benefit of any current or former employees,
officers, or directors of OSI or any OSI Subsidiary or for which OSI
or any OSI Subsidiary has any liability or contingent liability;
(i) each "employee benefit plan," as such term is defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (each an "OSI ERISA Plan");
(ii) each employment, severance, termination, retention, stay-with-bonus,
or change-of-control agreement or understanding (each an "OSI
Employment Agreement"), except that the OSI Disclosure Letter only
lists OSI Employment Agreements with OSI's executive officers; and
(iii) each personnel policy, stock option or purchase plan, collective
bargaining agreement, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, deferred compensation
agreement or arrangement, executive compensation or supplemental
income arrangement, and each other employee benefit plan, agreement,
arrangement, program, practice or understanding
- 16 -
(each, an "OSI Benefit Program"), except that the OSI Disclosure
Letter only lists OSI Benefit Programs that are for the exclusive
benefit of one or more of OSI's executive officers. The OSI ERISA
Plans, the OSI Employment Agreements and the OSI Benefit Programs
are sometimes collectively hereinafter referred to as the "OSI
Plans".
(b) True, correct and complete copies of each of the OSI ERISA Plans,
and related trusts, if applicable, including all amendments thereto,
have been furnished to CRA. There has also been furnished to CRA,
with respect to each OSI ERISA Plan required to file such report and
description, the most recent report on Form 5500 and the summary
plan description. True, correct and complete copies or descriptions
of all OSI Benefit Programs and Employment Agreements that are for
the exclusive benefit of, or are with, OSI's executive officers have
also been furnished to CRA. Each of the OSI ERISA Plans intended to
be qualified under Section 401(a) of the Code satisfies the
requirements of such section, and has received a favorable
determination letter from the Internal Revenue Service regarding
such qualified status (a copy of which has been provided to CRA) and
has not, since receipt of the most favorable determination letter,
been amended or, to the knowledge of OSI, operated in a way which
would adversely affect such qualified status.
(c) Each of the OSI Plans is in compliance in all material respects with
all applicable requirements of law, including ERISA and the Code,
and all reports and disclosures relating to the OSI Plans required
to be filed with or furnished to governmental agencies, OSI Plan
participants or OSI Plan beneficiaries have been filed or furnished
in accordance with applicable law (except where the failure to file
or furnish would not have an OSI Material Adverse Effect), and there
are no actions, suits or claims pending (other than routine claims
for benefits) or, to the knowledge of OSI, threatened against, or
with respect to, any of the OSI Plans or their assets.
(d) All contributions required to be made to the OSI Plans pursuant to
their terms or provisions have been timely made (except where the
failure to make such contributions would not have an OSI Material
Adverse Effect).
(e) None of the OSI Plans is a "defined benefit pension plan" within the
meaning of section 3(35) of ERISA or is a "multiemployer plan"
(within the meaning of section 3(37) of ERISA) without regard to
whether any such plans are subject to Title IV of ERISA.
(f) None of OSI or any OSI Subsidiary has made any payments, is
obligated to make any payments, or is a party to any agreement that
could obligate it to make any payments, that would not be deductible
by reason of section 280G of
- 17 -
the Code or that would be subject to an excise tax under section
4999 of the Code or, except as previously disclosed in writing to
CRA, that would not be deductible by reason of section 162 of the
Code.
(g) Except as disclosed in the OSI Disclosure Letter, the execution of,
and performance of the transactions contemplated in this Agreement
will not (either alone or upon the occurrence of any additional or
subsequent events) constitute an event under any OSI Plan or any
trust or loan that will or may result in any payment (whether of
severance pay or otherwise), acceleration, forgiveness of
indebtedness, vesting, distribution, increase in benefits or
obligations to fund benefits with respect to any current or former
employee, officer, or director.
(h) Other than coverage mandated by applicable statute, none of OSI or
any OSI Subsidiary is under any obligation or liability to provide
medical benefits or death benefits (including through insurance) to
retirees or to former employees, officers, or directors of OSI or
any OSI Subsidiary.
5.13. Labor Matters. There is no labor strike, labor dispute, work
slowdown, stoppage or lockout actually pending, or to the knowledge of the
executive officers of OSI, threatened against or affecting OSI or any OSI
Subsidiary, except as would not, individually or in the aggregate, have an OSI
Material Adverse Effect. There is no unfair labor practice or labor arbitration
proceeding pending or, to the knowledge of the executive officers of OSI,
threatened against OSI or its Subsidiaries relating to their business, except
for any such proceeding which would not have an OSI Material Adverse Effect.
5.14. No Brokers. OSI has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation of OSI,
Holding Company or CRA to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby,
except that OSI has retained Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation
("DLJ") as its financial advisor, the arrangements with which have been
disclosed in writing to CRA prior to the date hereof. Other than the foregoing
arrangements, OSI is not aware of any claim for payment of any finder's fees,
brokerage or agent's commissions or other like payments in connection with the
negotiations leading to this Agreement or the consummation of the transactions
contemplated hereby.
5.15. Opinion of Financial Advisor. OSI has received the opinion of DLJ to
the effect that, as of the date hereof, the Exchange Ratio is fair to the
holders of OSI Common Stock from a financial point of view. As used herein, the
"Exchange Ratio" means the quotient of the OSI Ratio divided by the CRA Ratio.
5.16 Preliminary Pooling Letter. OSI has received an opinion, dated as of
the date of this Agreement, from its independent accountants, Xxxxxx Xxxxxxxx,
L.L.P., to the effect that if
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the business combination to be effected by the Mergers were to occur on the date
hereof they would be properly accounted for as a pooling-of-interests. OSI is
aware of no reasons why the transactions contemplated hereby would not be
properly accounted for as a pooling-of-interests.
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF CRA
Except as set forth in the disclosure letter delivered at or prior to the
execution hereof to OSI (the "CRA Disclosure Letter") or in CRA Reports (as
defined below), CRA represents and warrants to OSI as of the date of this
Agreement as follows:
6.1. Existence; Good Standing; Corporate Authority. CRA is a corporation
duly incorporated, validly existing and in good standing under the laws of its
jurisdiction of incorporation. CRA 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 or in which the transaction of its business makes such
qualification necessary, except where the failure to be so qualified or to be in
good standing would not have a material adverse effect on the business, results
of operations, financial condition or prospects of CRA and its Subsidiaries
taken as a whole (a "CRA Material Adverse Effect"). CRA has all requisite
corporate power and authority to own, operate and lease its properties and carry
on its business as now conducted. Each of CRA's Significant Subsidiaries (as
defined in Section 10.14 hereof) is a corporation or partnership duly 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, 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 CRA
Material Adverse Effect. The copies of CRA's Articles of Organization and Bylaws
previously made available to OSI are true and correct.
6.2. Authorization, Validity and Effect of Agreements. CRA has the
requisite corporate power and authority to execute and deliver this Agreement
and all agreements and documents contemplated hereby. Subject only to the
approval of this Agreement and the transactions contemplated hereby by the
holders of two-thirds of the outstanding shares of CRA Common Stock, the
consummation by CRA of the transactions contemplated hereby has been duly
authorized by all requisite corporate action. This Agreement constitutes, and
all agreements and documents contemplated hereby (when executed and delivered
pursuant hereto for value received) will constitute, the valid and legally
binding obligations of CRA, enforceable in accordance with their respective
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
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6.3. Capitalization. The authorized capital stock of CRA consists of
40,000,000 shares of CRA Common Stock and 1,000,000 shares of preferred stock,
$.01 par value (the "CRA Preferred Stock"). As of March 31, 1997, (a) 8,961,985
shares of CRA Common Stock were issued and outstanding, (b) no shares of
preferred stock were issued and outstanding, (c) 1,070,000 shares of CRA Common
Stock were reserved for issuance pursuant to CRA Stock Option Plans and (d)
there were no shares of CRA Common Stock held in CRA's treasury. Since such
date, (i) no additional shares of capital stock of CRA have been issued, except
pursuant to the terms existing on the date hereof of the CRA Stock Option Plans
and (ii) no options or other rights to acquire shares of CRA's capital stock
have been granted (other than (i) options that have been or may be granted after
March 31, 1997 to individuals other than to executive officers of CRA to acquire
up to 15,000 shares of CRA Common Stock pursuant to the terms of the CRA Stock
Option Plans at an exercise price of not less than the fair market value of the
CRA Common Stock on the date of grant and (ii) the option granted to OSI on the
date hereof). CRA has no outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of CRA on any matter. All issued and outstanding shares of CRA
Common Stock are duly authorized, validly issued, fully paid, nonassessable and
free of preemptive rights. There are not at the date of this Agreement any
existing options, warrants, calls, subscriptions, convertible securities, or
other rights, agreements or commitments which obligate CRA or any of its
Subsidiaries to issue, transfer or sell any shares of capital stock of CRA or
any of its Subsidiaries (other than under the CRA Stock Option Plans).
6.4. Subsidiaries. CRA owns directly or indirectly each of the outstanding
shares of capital stock (or other ownership interests having by their terms
ordinary voting power to elect a majority of directors or others performing
similar functions with respect to such CRA Significant Subsidiary) of each of
CRA's Significant Subsidiaries. Each of the Outstanding shares of capital stock
of each of CRA's Significant Subsidiaries is duly authorized, validly issued,
fully paid and nonassessable, and is owned, directly or indirectly, by CRA. Each
of the outstanding shares of capital stock of each Significant Subsidiary of CRA
is owned, directly or indirectly, by CRA free and clear of all liens, pledges,
security interests, claims or other encumbrances other than liens imposed by
local law which are not material. The following information for each Significant
Subsidiary of CRA has been previously provided to OSI, if applicable: (i) its
name and jurisdiction of incorporation or organization; (ii) its authorized
capital stock or share capital; and (iii) the number of issued and outstanding
shares of capital stock or share capital. All of the Subsidiaries of CRA other
than the Significant Subsidiaries, when taken together, do not in the aggregate
constitute a Significant Subsidiary of CRA.
6.5. Other Interests. Except for interests in CRA Subsidiaries, neither
CRA nor any CRA Significant Subsidiary owns directly or indirectly any interest
or investment (whether equity or debt) in any corporation, partnership, joint
venture, business, trust or entity (other than investments of less than
$1,000,000 in the aggregate).
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6.6. No Conflict; Required Filings and Consents. (a) The execution and
delivery of this Agreement by CRA do not, and the consummation by CRA of the
transactions contemplated hereby will not, (i) conflict with or violate the
certificate of incorporation or by-laws or equivalent organizational documents
of (x) CRA or (y) any CRA Significant Subsidiary, (ii) subject to making the
filings and obtaining the approvals identified in Section 6.6(b) hereof,
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to CRA or any CRA Subsidiary or by which any property or asset of CRA
or any CRA Subsidiary is bound or affected, or (iii) subject to making the
filings and obtaining the approvals identified in Section 6.6(b) hereof, result
in any breach of or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, result in the loss of a material
benefit under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of CRA or any CRA Subsidiary pursuant to, any note, bond, mortgage, indenture,
contract, agreement, lease, license, permit, franchise or other instrument or
obligation to which CRA or any CRA Subsidiary is a party or by which CRA or any
CRA Subsidiary or any property or asset of CRA or any CRA Subsidiary is bound or
affected, except, in the case of clauses (i)(y), (ii) and (iii), for any such
conflicts, violations, breaches, defaults or other occurrences which would not
prevent or delay consummation of any of the transactions contemplated hereby in
any material respect, or otherwise prevent CRA from performing its obligations
under this Agreement in any material respect, and would not, individually or in
the aggregate, have a CRA Material Adverse Effect. The execution and delivery of
this Agreement by CRA do not, and the consummation by CRA of the transactions
contemplated hereby will not, result in any material breach of or constitute a
material default (or an event which with notice or lapse of time or both would
become a material default) under, result in the loss of a material benefit
under, or give to others any right of purchase or sale, or any right of
termination, amendment, acceleration, increased payments or cancellation of, or
result in the creation of a lien or other encumbrance on any property or asset
of CRA or any CRA Subsidiary pursuant to, any Material Contract to which CRA or
any CRA Subsidiary is a party or by which CRA or any CRA Subsidiary or any
property or asset of CRA or any CRA Subsidiary is bound or affected. For the
purposes hereof, "Material Contract", as such term relates to CRA, shall mean
any note, bond, mortgage, indenture, contract, agreement, lease, license,
permit, franchise or other instrument or obligation that is required to be
listed as an Exhibit to CRA's Form 10-K filed with the SEC with respect to its
year ended December 31, 1996.
(b) The execution and delivery of this Agreement by CRA do not, and the
performance of this Agreement and the consummation by CRA of the transactions
contemplated hereby will not, require any consent, approval, authorization or
permit of, or filing with or notification to, any governmental or regulatory
authority, domestic or foreign (each a "Governmental Entity"), except (i) for
(A) applicable requirements, if any, of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), the Securities Act of 1933, as amended (the
"Securities Act"), state securities or "blue sky" laws ("Blue Sky Laws") and
state takeover laws, (B) the pre-merger notification requirements of the
Xxxx-Xxxxx-Xxxxxx
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Antitrust Improvements Act of 1976, as amended, and the rules and regulations
thereunder (the "HSR Act"), (C) filing and recordation of appropriate merger and
similar documents as required by Delaware law and Massachusetts law and (D)
applicable requirements, if any, of the Code and state, local and foreign tax
laws, and (ii) where failure to obtain such consents, approvals, authorizations
or permits, or to make such filings or notifications, would not prevent or delay
consummation of any of the transactions contemplated hereby in any material
respect, or otherwise prevent CRA from performing its obligations under this
Agreement in any material respect, and would not, individually or in the
aggregate, have a CRA Material Adverse Effect.
6.7. Compliance. Neither CRA nor any CRA Subsidiary is in conflict with,
or in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to CRA or any CRA Subsidiary or by which any property or asset
of CRA or any CRA Subsidiary is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which CRA or any CRA Subsidiary is a party or
by which CRA or any CRA Subsidiary or any property or asset of CRA or any CRA
Subsidiary is bound or affected, in each case except for any such conflicts,
defaults or violations that would not, individually or in the aggregate, have a
CRA Material Adverse Effect. CRA and its Subsidiaries have obtained all
licenses, permits and other authorizations and have taken all actions required
by applicable law or governmental regulations in connection with their business
as now conducted, where the failure to obtain any such item or to take any such
action would have, individually or in the aggregate, a CRA Material Adverse
Effect.
6.8. SEC Documents. (a) CRA has filed all forms, reports and documents
required to be filed by it with the Securities and Exchange Commission ("SEC")
since May 3, 1995 (collectively, the "CRA Reports"). As of their respective
dates, the CRA Reports and any such reports, forms and other documents filed by
CRA with the SEC after the date of this Agreement (i) complied, or will comply,
as to form in all material respects with the applicable requirements of the
Securities Act, the Exchange Act, and the rules and regulations thereunder and
(ii) did not, or will 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. The representation in clause (ii) of the preceding
sentence shall not apply to any misstatement or omission in any CRA Report filed
prior to the date of this Agreement which was superseded by a subsequent CRA
Report filed prior to the date of this Agreement. No CRA Subsidiary is required
to file any report, form or other document with the SEC.
(b) Each of the consolidated balance sheets of CRA included in or
incorporated by reference into the CRA Reports (including the related notes and
schedules) fairly presents the consolidated financial position of CRA and the
CRA Subsidiaries as of its date, and each of the consolidated statements of
income, retained earnings and cash flows of CRA included in or incorporated by
reference into the CRA Reports (including any related notes and schedules)
- 22 -
fairly presents the results of operations, retained earnings or cash flows, as
the case may be, of CRA and the CRA 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 as may be noted therein. Neither CRA nor any
of the CRA Subsidiaries has any liabilities or obligations of any nature
(whether accrued, absolute, contingent or otherwise) that would be required to
be reflected on, or reserved against in, a balance sheet of CRA or in the notes
thereto, prepared in accordance with generally accepted accounting principles
consistently applied, except for (i) liabilities or obligations that were so
reserved on, or reflected in (including the notes to), the consolidated balance
sheet of CRA as of December 31, 1996; (ii) liabilities or obligations arising in
the ordinary course of business since December 31, 1996 and (iii) liabilities or
obligations which would not, individually or in the aggregate, have a CRA
Material Adverse Effect.
6.9. Litigation. There are no actions, suits or proceedings pending
against CRA or the CRA Subsidiaries or, to the actual knowledge of the executive
officers of CRA, threatened against CRA or the CRA Subsidiaries, at law or in
equity, or before or by any federal or state commission, board, bureau, agency
or instrumentality, that are reasonably likely to have a CRA Material Adverse
Effect.
6.10. Absence of Certain Changes. Except as specifically contemplated by
this Agreement, since December 31, 1996, there has not been (i) any CRA Material
Adverse Effect; (ii) any declaration, setting aside or payment of any dividend
or other distribution with respect to its capital stock; or (iii) any material
change in its accounting principles, practices or methods.
6.11. Taxes. (a) CRA and each of the CRA Subsidiaries has filed all
material tax returns and reports required to be filed by it, or requests for
extensions to file such returns or reports have been timely filed and granted
and have not expired, and all tax returns and reports are complete and accurate
in all respects, except to the extent that such failures to file, have
extensions granted that remain in effect or be complete and accurate in all
respects, as applicable, individually or in the aggregate, would not have a CRA
Material Adverse Effect. CRA and each of the CRA Subsidiaries have paid (or CRA
has paid on its behalf) all taxes shown as due on such tax returns and reports.
The most recent financial statements contained in the CRA Reports reflect an
adequate reserve for all taxes payable by CRA and the CRA Subsidiaries for all
taxable periods and portions thereof accrued through the date of such financial
statements, and no deficiencies for any taxes have been proposed, asserted or
assessed against CRA or any CRA Subsidiary that are not adequately reserved for,
except for inadequately reserved taxes and inadequately reserved deficiencies
that would not, individually or in the aggregate, have a CRA Material Adverse
Effect. No requests for waivers of the time to assess any taxes against CRA or
any CRA Subsidiary have been granted or are pending, except for requests with
respect to such taxes that have been adequately reserved for in the most recent
financial statements contained in the CRA Reports, or, to the extent not
adequately
- 23 -
reserved, the assessment of which would not, individually or in the aggregate,
have a CRA Material Adverse Effect.
(b) Neither CRA nor any CRA Subsidiary has taken any action or has any
knowledge of any fact or circumstance that is reasonably likely to prevent the
CRA Merger from qualifying as a reorganization or an exchange governed by
Section 368(a) or Section 351(a) of the Code.
(c) As used herein, "taxes" shall include all Federal, state, local and
foreign income, franchise, property, sales, use, excise and other taxes, fees,
assessments or charges of any kind or nature whatsoever imposed by any
governmental authority, including obligations for withholding taxes from
payments due or made to any other person and any interest, penalties or
additions to tax.
6.12 Employee Benefit Plans.
(a) The CRA Disclosure Letter lists each of the following which is
sponsored, maintained, or contributed to by CRA or any CRA
Subsidiary for the benefit of any current or former employees,
officers, or directors of CRA or any CRA Subsidiary or for which CRA
or any CRA Subsidiary has any liability or contingent liability:
(i) each "employee benefit plan," as such term is defined in Section
3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA") (each a "CRA ERISA Plan");
(ii) each employment, severance, termination, retention, stay-with-bonus,
or change-of-control agreement or understanding (each a "CRA
Employment Agreement"), except that the CRA Disclosure Letter only
lists CRA Employment Agreements with CRA's executive officers; and
(iii) each personnel policy, stock option or purchase plan, collective
bargaining agreement, bonus plan or arrangement, incentive award
plan or arrangement, vacation policy, deferred compensation
agreement or arrangement, executive compensation or supplemental
income arrangement, and each other employee benefit plan, agreement,
arrangement, program, practice or understanding (each, a "CRA
Benefit Program"), except that the CRA Disclosure Letter only lists
CRA Benefit Programs that are for the exclusive benefit of one or
more of CRA's executive officers. The CRA ERISA Plans, the CRA
Employment Agreements and the CRA Benefit Programs are sometimes
collectively hereinafter referred to as the "CRA Plans".
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(b) True, correct and complete copies of each of the CRA ERISA Plans,
and related trusts, if applicable, including all amendments thereto,
have been furnished to OSI. There has also been furnished to OSI,
with respect to each CRA ERISA Plan required to file such report and
description, the most recent report on Form 5500 and the summary
plan description. True, correct and complete copies or descriptions
of all CRA Benefit Programs and Employment Agreements that are for
the exclusive benefit of, or are with, CRA's executive officers have
also been furnished to OSI. Each of the CRA ERISA Plans intended to
be qualified under Section 401(a) of the Code satisfies the
requirements of such section, and has received a favorable
determination letter from the Internal Revenue Service regarding
such qualified status (a copy of which has been provided to OSI) and
has not, since receipt of the most favorable determination letter,
been amended or, to the knowledge of CRA, operated in a way which
would adversely affect such qualified status.
(c) Each of the CRA Plans is in compliance in all material respects with
all applicable requirements of law, including ERISA and the Code,
and all reports and disclosures relating to the CRA Plans required
to be filed with or furnished to governmental agencies, CRA Plan
participants or CRA Plan beneficiaries have been filed or furnished
in accordance with applicable law (except where the failure to file
or furnish would not have a CRA Material Adverse Effect), and there
are no actions, suits or claims pending (other than routine claims
for benefits) or, to the knowledge of CRA, threatened against, or
with respect to, any of the CRA Plans or their assets.
(d) All contributions required to be made to the CRA Plans pursuant to
their terms or provisions have been timely made (except where the
failure to make such contributions would not have a CRA Material
Adverse Effect).
(e) None of the CRA Plans is a "defined benefit pension plan" within the
meaning of section 3(35) of ERISA or is a "multiemployer plan"
(within the meaning of section 3(37) of ERISA) without regard to
whether any such plans are subject to Title IV of ERISA.
(f) None of CRA or any CRA Subsidiary has made any payments, is
obligated to make any payments, or is a party to any agreement that
could obligate it to make any payments, that would not be deductible
by reason of section 280G of the Code or that would be subject to an
excise tax under section 4999 of the Code or, except as previously
disclosed in writing to OSI, that would not be deductible by reason
of section 162 of the Code.
(g) Except as disclosed in the CRA Disclosure Letter, the execution of,
and performance of the transactions contemplated in this Agreement
will not (either
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alone or upon the occurrence of any additional or subsequent events)
constitute an event under any CRA Plan or any trust or loan that
will or may result in any payment (whether of severance pay or
otherwise), acceleration, forgiveness of indebtedness, vesting,
distribution, increase in benefits or obligations to fund benefits
with respect to any current or former employee, officer, or
director.
(h) Other than coverage mandated by applicable statute, none of CRA or
any CRA Subsidiary is under any obligation or liability to provide
medical benefits or death benefits (including through insurance) to
retirees or to former employees, officers, or directors of CRA or
any CRA Subsidiary.
6.13. Labor Matters. There is no labor strike, labor dispute, work
slowdown, stoppage or lockout actually pending, or to the knowledge of the
executive officers of CRA, threatened against or affecting CRA or any CRA
Subsidiary, except as would not, individually or in the aggregate, have a CRA
Material Adverse Effect. There is no unfair labor practice or labor arbitration
proceeding pending or, to the knowledge of the executive officers of CRA,
threatened against CRA or its Subsidiaries relating to their business, except
for any such proceeding which would not have a CRA Material Adverse Effect.
6.14. No Brokers. CRA has not entered into any contract, arrangement or
understanding with any person or firm which may result in the obligation of CRA,
Holding Company or OSI to pay any finder's fees, brokerage or agent's
commissions or other like payments in connection with the negotiations leading
to this Agreement or the consummation of the transactions contemplated hereby,
except that CRA has retained Alex. Xxxxx & Sons Incorporated as its financial
advisor, the arrangements with which have been disclosed in writing to OSI prior
to the date hereof. Other than the foregoing arrangements, CRA is not aware of
any claim for payment of any finder's fees, brokerage or agent's commissions or
other like payments in connection with the negotiations leading to this
Agreement or the consummation of the transactions contemplated hereby.
6.15. Opinion of Financial Advisor. CRA has received the opinion of Alex.
Xxxxx & Sons Incorporated to the effect that, as of the date hereof, the CRA
Ratio to be applied to the exchange of CRA Common Stock in the CRA Merger and
the OSI Ratio to be applied to the exchange of OSI Common Stock in the OSI
Merger are fair to the holders of CRA Common Stock from a financial point of
view.
6.16 Preliminary Pooling Letter. CRA has received an opinion, dated as of
the date of this Agreement, from its independent accountants, Xxxxxx Xxxxxxxx,
L.L.P., to the effect that if the business combination to be effected by the
Mergers were to occur on the date hereof they would be properly accounted for as
a pooling-of-interests. CRA is aware of no reasons why the transactions
contemplated hereby would not be properly accounted for as a
pooling-of-interests.
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ARTICLE 7
COVENANTS
7.1. Alternative Proposals.
(a) OSI Alternative Proposals.
(i) From and after the date hereof, OSI will not, and will not authorize
or (to the extent within its control) permit any of its officers,
directors, employees, agents, Affiliates and other representatives or
those of any of its Subsidiaries (collectively, "OSI Representatives") to,
directly or indirectly, solicit or encourage (including by way of
providing information) any prospective acquiror or the invitation or
submission of any inquiries, proposals or offers or any other efforts or
attempts that constitute, or may reasonably be expected to lead, to any
OSI Acquisition Proposal (as hereinafter defined) from any person or
engage in any discussions or negotiations with respect thereto or
otherwise cooperate with or assist or participate in, or facilitate any
such proposal; provided, however, that, notwithstanding any other
provision of this Agreement (i) OSI's Board of Directors may take and
disclose to the stockholders of OSI a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act and (ii) following receipt
from a third party, without any solicitation, initiation or encouragement,
directly or indirectly, by OSI or any OSI Representative, of a bona fide
OSI Acquisition Proposal, (x) OSI may engage in discussions or
negotiations with such third party and may furnish such third party
information concerning it, and its business, properties and assets if such
third party executes a confidentiality agreement in reasonably customary
form and (y) the Board of Directors of OSI may withdraw, modify or not
make its recommendation referred to in Section 7.3 or terminate this
Agreement in accordance with Article 9, but in each case referred to in
the foregoing clauses (i) and (ii), only to the extent that OSI's Board of
Directors shall conclude in good faith based on the advice of OSI's
outside counsel that such action is necessary in order for OSI's Board of
Directors to act in a manner that is consistent with its fiduciary
obligations under applicable law.
(ii) OSI shall immediately cease and cause to be terminated any existing
solicitation, initiation, encouragement, activity, discussion or
negotiation with any parties conducted heretofore by OSI or any OSI
Representatives with respect to any OSI Acquisition Proposal existing on
the date hereof.
(iii) Not less than one business day prior to taking any action referred
to in Section 7.1(a)(i), if OSI intends to participate in any such
discussions or negotiations or provide any such information to any such
third party, OSI shall give written notice to CRA of such intended action.
OSI will promptly notify CRA of such requests of such information or the
receipt of any OSI Acquisition Proposal, including the identity of the
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person or group engaging in such discussions or negotiations, requesting
such information or making such OSI Acquisition Proposal, and the material
terms and conditions of any OSI Acquisition Proposal.
(iv) As used in this Agreement, "OSI Acquisition Proposal" means any
proposal or offer made by a person or group of persons other than a
proposal or offer by CRA or any of its Affiliates (which person or group
has, in the good faith determination of the Board of Directors of OSI, the
financial ability to consummate such proposal or offer), for, or that
could be reasonably expected to lead to, a tender or exchange offer, a
merger, consolidation or other business combination involving such person
or group and OSI or any OSI Significant Subsidiaries or any proposal from
any such person or group to acquire in any manner a substantial equity
interest in, or any substantial portion of the assets of, OSI or any OSI
Significant Subsidiaries.
(b) CRA Alternative Proposal.
(i) From and after the date hereof, CRA will not, and will not authorize
or (to the extent within its control) permit any of its officers,
directors, employees, agents, Affiliates and other representatives or
those of any of its Subsidiaries (collectively, "CRA Representatives") to,
directly or indirectly, solicit or encourage (including by way of
providing information) any prospective acquiror or the invitation or
submission of any inquiries, proposals or offers or any other efforts or
attempts that constitute, or may reasonably be expected to lead, to any
CRA Acquisition Proposal (as hereinafter defined) from any person or
engage in any discussions or negotiations with respect thereto or
otherwise cooperate with or assist or participate in, or facilitate any
such proposal; provided, however, that, notwithstanding any other
provision of this Agreement (i) CRA's Board of Directors may take and
disclose to the stockholders of CRA a position contemplated by Rule
14e-2(a) promulgated under the Exchange Act and (ii) following receipt
from a third party, without any solicitation, initiation or encouragement,
directly or indirectly, by CRA or any CRA Representative, of a bona fide
CRA Acquisition Proposal, (x) CRA may engage in discussions or
negotiations with such third party and may furnish such third party
information concerning it, and its business, properties and assets if such
third party executes a confidentiality agreement in reasonably customary
form and (y) the Board of Directors of CRA may withdraw, modify or not
make its recommendation referred to in Section 7.3 or terminate this
Agreement in accordance with Article 9, but in each case referred to in
the foregoing clauses (i) and (ii), only to the extent that CRA's Board of
Directors shall conclude in good faith based on the advice of CRA's
outside counsel that such action is necessary in order for CRA's Board of
Directors to act in a manner that is consistent with its fiduciary
obligations under applicable law.
(ii) CRA shall immediately cease and cause to be terminated any existing
solicitation, initiation, encouragement, activity, discussion or
negotiation with any
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parties conducted heretofore by CRA or any CRA Representatives with
respect to any CRA Acquisition Proposal existing on the date hereof.
(iii) Not less than one business day prior to taking any action referred
to in Section 7.1(b)(i), if CRA intends to participate in any such
discussions or negotiations or provide any such information to any such
third party, CRA shall give written notice to OSI of such intended action.
CRA will promptly notify OSI of such requests of such information or the
receipt of any CRA Acquisition Proposal, including the identity of the
person or group engaging in such discussions or negotiations, requesting
such information or making such CRA Acquisition Proposal, and the material
terms and conditions of any CRA Acquisition Proposal.
(iv) As used in this Agreement, "CRA Acquisition Proposal" means any
proposal or offer made by a person or group of persons other than a
proposal or offer by OSI or any of its Affiliates (which person or group
has, in the good faith determination of the Board of Directors of CRA, the
financial ability to consummate such proposal or offer), for, or that
could be reasonably expected to lead to, a tender or exchange offer, a
merger, consolidation or other business combination involving such person
or group and CRA or any CRA Significant Subsidiaries or any proposal from
any such person or group to acquire in any manner a substantial equity
interest in, or any substantial portion of the assets of, CRA or any CRA
Significant Subsidiaries.
7.2. Interim Operations. (a) Prior to the Effective Time, except as set
forth in the OSI Disclosure Letter or as contemplated by any other provision of
this Agreement, unless CRA has consented in writing thereto, OSI:
(i) Shall, and shall cause each of its Significant Subsidiaries to,
conduct its operations according to their usual, regular and ordinary
course in substantially the same manner as heretofore conducted;
(ii) Shall use its commercially reasonable efforts, and shall cause each
of its Significant Subsidiaries to use its commercially reasonable
efforts, to preserve intact their business organizations and goodwill,
keep available the services of their respective officers and employees and
maintain satisfactory relationships with those persons having business
relationships with them;
(iii) Shall not amend its Certificate of Incorporation or Bylaws or
comparable governing instruments (other than Bylaw amendments which are
not material to OSI or to the consummation of the transactions
contemplated by this Agreement);
(iv) Shall promptly notify CRA of any breach of any representation or
warranty of OSI of which OSI becomes aware contained herein or any OSI
Material Adverse Effect;
- 29 -
(v) Shall promptly deliver to CRA true and correct copies of any report,
statement or schedule filed with the SEC subsequent to the date of this
Agreement;
(vi) Shall not (w) except pursuant to the conversion of the OSI
Convertible Notes, the conversion of the Xxxxxxxx Note, and the exercise
of options, warrants, conversion rights and other contractual rights
existing on the date hereof and disclosed pursuant to this Agreement or in
the OSI Reports, issue any shares of its capital stock, effect any stock
split or otherwise change its capitalization as it existed on the date
hereof, (x) 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 (other than the grant of options to acquire an aggregate
of up to 15,000 shares of OSI Common Stock pursuant to the terms of the
OSI Stock Option Plans at an exercise price of not less than the fair
market value of the OSI Common Stock on the date of grant) or grant,
confer or award any bonuses or other forms of cash incentives to any
officer, director, or employee except consistent with past practice, (y)
increase any compensation of its present or future officers, directors, or
employees (except for normal increases consistent with past practice or as
required under the written terms of an OSI Employment Agreement in effect
on or before December 31, 1996); enter into any employment agreement with
any present or future employee, officer, or director, or amend any such
agreement in any material respect; grant any severance or termination pay
to any officer, director or employee other than pursuant to existing
severance arrangements and policies of OSI or (z) adopt any new OSI Plan
or amend any existing OSI Plan in any material respect;
(vii) Shall not (i) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock or other ownership interests, (ii) directly or indirectly redeem,
purchase or otherwise acquire any shares of its capital stock or capital
stock of any of its Subsidiaries, or make any commitment for any such
action or (iii) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock;
(viii) Shall not, and shall not permit any of its Subsidiaries to (A)
sell, lease or otherwise dispose of any of its assets (including capital
stock of Subsidiaries) except in the ordinary course of business, or (B)
acquire any business or any substantial portion of the assets of any
person except as identified in the OSI Disclosure Letter and acquisitions
involving the payment of consideration by OSI not in excess of $10,000,000
for any single acquisition or $25,000,000 in the aggregate (it being
understood that OSI will give CRA not less than fifteen (15) days prior
notice of the proposed acquisition of any business or any substantial
portion of the assets of any person; if such acquisition requires the
written consent of CRA under this clause (viii), consent shall not be
unreasonably withheld; and CRA shall be deemed to have given such consent
if it does not respond within ten (10) days of receipt of the notice
contemplated hereby);
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(ix) Shall not incur any material amount of indebtedness for borrowed
money or make any loans, advances or capital contributions to, or
investments (other than non-controlling investments in the ordinary course
of business or other investments permitted pursuant to clause (viii)
above) in, any other person other than a wholly owned Subsidiary, or issue
or sell any debt securities, other than borrowings under existing lines of
credit in the ordinary course of business, in each case in an amount
exceeding $1,000,000;
(x) Shall not, except as previously approved by the Board of Directors of
OSI and identified to CRA prior to the date hereof, or except in the
ordinary course of business, make or commit to make capital expenditures
other than (A) capital expenditures budgeted for the fiscal year ending
December 31, 1997, and (B) capital expenditures (not otherwise included in
budgeted capital expenditures referred to in clause (A) above) that may be
made by OSI in connection with the acquisitions by OSI or its Subsidiaries
permitted under subsection (viii) above; provided such acquisitions would
have been permitted under such subsection (viii) if such capital
expenditures were deemed to be payment of consideration by OSI in
connection therewith;
(xi) Shall not mortgage or otherwise encumber or subject to any lien any
properties or assets except as would not be reasonably likely to have an
OSI Material Adverse Effect;
(xii) Shall not make any change to its accounting (including tax
accounting) methods, principles or practices, except as may be required by
generally accepted accounting principles and except, in the case of tax
accounting methods, principles or practices, in the ordinary course of
business of OSI or any of its Subsidiaries;
(xiii)Shall not and shall not permit any of its Subsidiaries to, enter
into any agreement or arrangement with any of their respective Affiliates,
other than with wholly-owned Subsidiaries of OSI, on terms less favorable
to OSI or such Subsidiary, as the case may be, than could be reasonably
expected to have been obtained with an unaffiliated third party on an
arm's-length basis;
(xiv) Shall, and shall cause its Subsidiaries to, use commercially
reasonable efforts to maintain with financially responsible insurance
companies insurance in such amounts and against such risks and losses as
are customary for companies engaged in their respective businesses; and
(xv) Shall not (i) make or rescind any material express or deemed election
relating to taxes, unless it is reasonably expected that such action will
not result in an OSI Material Adverse Effect, (ii) settle or compromise
any material claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to taxes, except where such
settlement or compromise will not result in an OSI Material Adverse
Effect, or (iii)
- 31 -
change in any material respect any of its methods or reporting income or
deductions for federal income tax purposes from those employed in the
preparation of its federal income tax returns that have been filed for
prior taxable years, except as may be required by applicable law or except
for changes that are reasonably expected not to result in an OSI Material
Adverse Effect.
(b) Prior to the Effective Time, except as set forth in the CRA Disclosure
Letter or as contemplated by this Agreement, unless OSI has consented in writing
thereto, CRA:
(i) Shall, and shall cause each of its Significant Subsidiaries to,
conduct its operations according to their usual, regular and ordinary
course in substantially the same manner as heretofore conducted;
(ii) Shall use its commercially reasonable efforts, and shall cause each
of its Significant Subsidiaries to use its commercially reasonable
efforts, to preserve intact their business organizations and goodwill,
keep available the services of their respective officers and employees and
maintain satisfactory relationships with those persons having business
relationships with them;
(iii) Shall not amend its Certificate of Incorporation or Bylaws or
comparable governing instruments (other than Bylaw amendments which are
not material to CRA or to the consummation of the transactions
contemplated by this Agreement);
(iv) Shall promptly notify OSI of any breach of any representation or
warranty of CRA of which CRA becomes aware contained herein or any CRA
Material Adverse Effect;
(v) Shall promptly deliver to OSI true and correct copies of any report,
statement or schedule filed with the SEC subsequent to the date of this
Agreement;
(vi) Shall not (w) except pursuant to the exercise of options, warrants,
conversion rights and other contractual rights existing on the date hereof
and disclosed pursuant to this Agreement or in the OSI Reports, issue any
shares of its capital stock, effect any stock split or otherwise change
its capitalization as it existed on the date hereof, (x) 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 (other than
the grant of options to acquire an aggregate of up to 15,000 shares of CRA
Common Stock pursuant to the terms of the CRA Stock Option Plans at an
exercise price of not less than the fair market value of the CRA Common
Stock on the date of grant) existing on the date hereof of CRA's stock
option plan) or grant, confer or award any bonuses or other forms of cash
incentives to any officer, director, or employee except consistent with
past practice, (y) increase any compensation of its present or future
officers, directors, or employees, (except for normal increases consistent
with past practice or as
- 32 -
required under the written terms of a CRA Employment Agreement in effect
on or before December 31, 1996); enter into any employment agreement with
any present or future employee, officer, or director or amend any such
agreement in any material respect; grant any severance or termination pay
to any officer, director or employee other than pursuant to existing
severance arrangements and policies of CRA or (z) adopt any new CRA Plan
or amend any existing CRA Plan in any material respect;
(vii) Shall not (i) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock or other ownership interests, (ii) directly or indirectly redeem,
purchase or otherwise acquire any shares of its capital stock or capital
stock of any of its Subsidiaries, or make any commitment for any such
action or (iii) split, combine or reclassify any of its capital stock or
issue or authorize or propose the issuance of any other securities in
respect of, in lieu of or in substitution for shares of its capital stock;
(viii) Shall not, and shall not permit any of its Subsidiaries to (A)
sell, lease or otherwise dispose of any of its assets (including capital
stock of Subsidiaries) except in the ordinary course of business, or (B)
acquire any business or any substantial portion of the assets of any
person except as identified in the CRA Disclosure Letter and acquisitions
involving the payment of consideration by CRA not in excess of $10,000,000
for any single acquisition or $25,000,000 in the aggregate (it being
understood that CRA will give OSI not less than fifteen (15) days prior
notice of the proposed acquisition of any business or any substantial
portion of the assets of any person; if such acquisition requires the
consent of OSI under this clause (viii), consent shall not be unreasonably
withheld; and OSI shall be deemed to have given such consent if it does
not respond within ten (10) days of receipt of the notice contemplated
hereby);
(ix) Shall not incur any material amount of indebtedness for borrowed
money or make any loans, advances or capital contributions to, or
investments (other than non-controlling investments in the ordinary course
of business or other investments permitted pursuant to clause (viii)
above), in each case in an amount exceeding $1,000,000;
(x) Shall not, except as previously approved by the Board of Directors of
CRA and identified to OSI prior to the date hereof, or except in the
ordinary course of business, make or commit to make capital expenditures
other than (A) capital expenditures budgeted for the fiscal year ending
December 31, 1997 and (B) capital expenditures (not otherwise included in
budgeted capital expenditures referred to in clause (A) above) that may be
made by CRA in connection with the acquisitions by CRA or its Subsidiaries
permitted under subsection (viii) above; provided such acquisitions would
have been permitted under such subsection (viii) if such capital
expenditures were deemed to be payment of consideration by CRA in
connection therewith.
- 33 -
(xi) Shall not mortgage or otherwise encumber or subject to any lien any
properties or assets except as would not be reasonably likely to have a
CRA Material Adverse Effect;
(xii) Shall not make any change to its accounting (including tax
accounting) methods, principles or practices, except as may be required by
generally accepted accounting principles and except, in the case of tax
accounting methods, principles or practices, in the ordinary course of
business of CRA or any of its Subsidiaries;
(xiii) Shall not and shall not permit any of its Subsidiaries to, enter
into any agreement or arrangement with any of their respective Affiliates,
other than with wholly-owned Subsidiaries of CRA, on terms less favorable
to CRA or such Subsidiary, as the case may be, than could be reasonably
expected to have been obtained with an unaffiliated third party on an
arm's-length basis;
(xiv) Shall, and shall cause its Subsidiaries to, use commercially
reasonable efforts to maintain with financially responsible insurance
companies insurance in such amounts and against such risks and losses as
are customary for companies engaged in their respective businesses; and
(xv) Shall not (i) make or rescind any material express or deemed election
relating to taxes, unless it is reasonably expected that such action will
not result in a CRA Material Adverse Effect, (ii) settle or compromise any
material claim, action, suit, litigation, proceeding, arbitration,
investigation, audit or controversy relating to taxes, except where such
settlement or compromise will not result in a CRA Material Adverse Effect,
or (iii) change in any material respect any of its methods or reporting
income or deductions for federal income tax purposes from those employed
in the preparation of its federal income tax returns that have been filed
for prior taxable years, except as may be required by applicable law, or
except for changes that are reasonably expected not to result in a CRA
Material Adverse Effect.
7.3. Meetings of Stockholders. Each of CRA and OSI will take all action
necessary in accordance with applicable law and its Articles of Organization or
Certificate of Incorporation, as the case may be, and Bylaws to convene a
meeting of its stockholders as promptly as practicable to consider and vote upon
(i) in the case of CRA, the approval of this Agreement, the CRA Merger Agreement
and the CRA Merger and (ii) in the case of OSI, the approval of this Agreement
and the OSI Merger. Subject to the exercise of the fiduciary duties of the
Boards of Directors of CRA and OSI, the Board of Directors of each of CRA and
OSI shall recommend such approval (and shall not revoke or withdraw such
recommendation) and CRA and OSI shall each take all lawful action to solicit
such approval, including, without limitation, timely mailing the Proxy
Statement/Prospectus (as defined in Section 7.7).
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7.4. Filings, Other Action. (a) Each party hereto shall file or cause to
be filed with the Federal Trade Commission (the "FTC") and the Antitrust
Division of the Department of Justice (the "Antitrust Division") any
notification required to be filed by their respective "ultimate parent"
companies under the HSR Act and the rules and regulations promulgated thereunder
with respect to the transactions contemplated hereby. Such parties will use all
commercially reasonable efforts to make such filings promptly and to respond on
a timely basis to any requests for additional information made by either of such
agencies. Each of the parties hereto agrees to furnish the others with copies of
all correspondence, filings and communications (and memorandum setting forth the
substance thereof) between it and its Affiliates and their respective
representatives, on the one hand, and the FTC, the Antitrust Division or any
other court, governmental, regulatory or administrative agency or commission or
other governmental authority or instrumentality, domestic or foreign (a
"Governmental Entity"), or members or their respective staffs, on the other
hand, with respect to this Agreement and the transactions contemplated hereby,
other than personal financial information filed therewith. Each party hereto
agrees to furnish the others with such necessary information and reasonable
assistance as such other parties and their respective affiliates may reasonably
request in connection with their preparation of necessary filings, registrations
or submissions of information to any Governmental Entities, including without
limitation any filings necessary under the provisions of the HSR Act.
(b) Each party hereto shall cooperate and use its reasonable best efforts
to promptly prepare and file all necessary documentation to effect all necessary
application, notices, petitions, filings and other documents, and use all
commercially reasonable efforts to obtain (and will cooperate with each other in
obtaining) any consent, acquiescence, authorization, order or approval of, or
any exemption or nonopposition by, any Governmental Entity required to be
obtained or made by OSI or CRA or any of their respective Significant
Subsidiaries in connection with the Mergers or the taking of any action
contemplated thereby or by this Agreement; and
(c) Subject to the terms and conditions herein provided, including the
exercise of the fiduciary duties of the Boards of Directors of CRA and OSI, the
parties hereto shall use all commercially reasonable 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.
7.5. Inspection of Records. From the date hereof to the Effective Time,
each of OSI and CRA shall (i) allow all designated officers, attorneys,
accountants and other representatives of the other reasonable access at all
reasonable times to the offices, records and files, correspondence, audits and
properties, as well as to all information relating to commitments, contracts,
titles and financial position, or otherwise pertaining to the business and
affairs, of OSI and CRA and their respective Subsidiaries, as the case may be,
(ii) furnish to the other, the other's counsel, financial advisors, auditors and
other authorized representatives such financial and operating data and other
information as such persons may
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reasonably request and (iii) instruct the employees, counsel and financial
advisors of OSI or CRA, as the case may be, to cooperate with the other in the
other's investigation of the business of it and its Subsidiaries.
7.6. Publicity. The initial press release relating to this Agreement shall
be a joint press release and thereafter OSI and CRA shall, subject to their
respective legal obligations (including requirements of stock exchanges,
quotation or trading systems and other similar regulatory bodies), consult with
each other, and use commercially reasonable efforts to agree upon the text of
any press release, before issuing any such press release or otherwise making
public statements with respect to the transactions contemplated hereby and in
making any filings with any federal or state governmental or regulatory agency
or with any national securities exchange or quotation or trading system with
respect thereto.
7.7. Registration Statement. CRA and OSI shall cooperate and promptly
prepare and Holding Company shall file with the SEC as soon as practicable a
Registration Statement on Form S-4 (the "Form S-4") under the Securities Act,
with respect to the Holding Company Common Stock issuable in the Mergers, a
portion of which Registration Statement shall also serve as the joint proxy
statement with respect to the meetings of the stockholders of OSI and of CRA in
connection with the Mergers (the "Proxy Statement/Prospectus"). The respective
parties will cause the Proxy Statement/Prospectus and the Form S-4 to comply as
to form in all material respects with the applicable provisions of the
Securities Act, the Exchange Act and the rules and regulations thereunder.
Holding Company shall use all commercially reasonable efforts, and CRA and OSI
will cooperate with Holding Company, to have the Form S-4 declared effective by
the SEC as promptly as practicable and to keep the Form S-4 effective as long as
is necessary to consummate the Mergers. Holding Company shall, as promptly as
practicable, provide copies of any written comments received from the SEC with
respect to the Form S-4 to CRA and OSI and advise CRA and OSI of any verbal
comments with respect to the Form S-4 received from the SEC. Holding Company
shall use its reasonable best efforts to obtain, prior to the effective date of
the Form S-4, all necessary state securities law or "Blue Sky" permits or
approvals required to carry out the transactions contemplated by this Agreement
and will pay all expenses incident thereto. Holding Company agrees that (i) the
S-4 will not, at the time it is filed with the Commission and the time it
becomes effective under the Securities Act, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading and (ii) the Proxy
Statement/Prospectus and each amendment or supplement thereto at the time of
mailing thereof and at the time of the respective meetings of stockholders of
OSI and CRA will not include an 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; provided, however, that the foregoing shall not apply to the
extent that any such untrue statement of a material fact or omission to state a
material fact was made by Holding Company in reliance upon and in conformity
with written information concerning CRA or OSI furnished to Holding Company by
CRA or OSI specifically for use in the Proxy Statement/Prospectus. CRA and OSI
each agrees that the
- 36 -
written information provided by it for inclusion in the S-4 and each amendment
or supplement thereto, at the time it is filed with the Commission and the time
it becomes effective under the Securities Act, will not include an 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 not misleading. CRA
and OSI each agrees that the written information provided by it for inclusion in
the Proxy Statement/Prospectus and each amendment or supplement thereto, at the
time of mailing thereof, and at the time of the respective meetings of
stockholders of OSI and CRA will not include an 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. No amendment or supplement to the Proxy
Statement/Prospectus will be made by Holding Company without the approval of CRA
and OSI. Holding Company will advise CRA and OSI, promptly after it receives
notice thereof, of the time when the Form S-4 has become effective or any
supplement or amendment has been filed, the issuance of any stop order, the
suspension of the qualification of Holding Company Common Stock issuable in
connection with the Mergers for offering or sale in any jurisdiction, or any
request by the SEC for amendment of the Proxy Statement/Prospectus or the Form
S-4 or comments thereon and responses thereto or requests by the SEC for
additional information.
7.8. Listing Application. Holding Company shall promptly prepare and
submit to the Nasdaq National Market a listing application covering the shares
of Holding Company Common Stock issuable in the Mergers, and shall use
commercially reasonable efforts to obtain, prior to the Effective Time, approval
for the quotation, of such Holding Company Common Stock, subject to official
notice of issuance, on the Nasdaq National Market.
7.9. 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 be reasonably required to effect the Mergers, including in the
case of CRA and OSI causing their designees on the Holding Company Board of
Directors to cause Holding Company to perform such acts and execute such
documents.
7.10. Affiliate Letters. At least 30 days prior to the Closing Date, CRA
and OSI shall deliver to Holding Company a list of names and addresses of those
persons who were, in CRA's and OSI's reasonable judgment, at the record date for
its stockholders' meeting to approve the Mergers, "affiliates" (each such
person, an "Affiliate") of CRA or OSI within the meaning of Rule 145 of the
rules and regulations promulgated under the Securities Act. OSI shall use all
commercially reasonable efforts to deliver or cause to be delivered to Holding
Company, prior to the Closing Date, from each of the Affiliates of OSI
identified in the foregoing list, an Affiliate Letter in the form attached
hereto as Exhibit E. CRA shall use all commercially reasonable efforts to
deliver or cause to be delivered to Holding Company, prior to the Closing Date,
from each of the Affiliates of CRA identified in the foregoing list, an
Affiliate Letter in the form attached hereto as Exhibit E. Holding Company shall
be entitled to place legends as specified in such Affiliate Letters on the
certificates evidencing any Holding
- 37 -
Company Common Stock 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 Holding Company Common Stock, consistent with the terms
of such Affiliate Letters.
7.11. Expenses. Whether or not the Mergers are consummated, all costs and
expenses incurred in connection with this Agreement and the transactions
contemplated hereby shall be paid by the party incurring such expenses except as
expressly provided herein and except that (a) the filing fee in connection with
the HSR Act filing, (b) the filing fee in connection with the filing of the Form
S-4 or Proxy Statement/Prospectus with the SEC, (c) the reasonable expenses of
Holding Company and (d) the expenses incurred in connection with printing and
mailing the Form S-4 and the Proxy Statement/Prospectus, shall be shared equally
by OSI and CRA. OSI and CRA each agree to pay one-half of any such expenses
promptly upon written request therefor by Holding Company or by any other
person, including OSI or CRA, paying on behalf of, or providing credit with
respect thereto to, Holding Company.
7.12. Insurance; Indemnity. (a) From and after the Effective Time, Holding
Company shall indemnify, defend and hold harmless to the fullest extent that CRA
or OSI would have been permitted under applicable law each person who is now, or
has been at any time prior to the date hereof, an officer or director of CRA or
OSI (individually, an "Indemnified Party" and collectively, the "Indemnified
Parties"), against all losses, claims, damages, liabilities, costs or expenses
(including attorneys' fees), judgments, fines, penalties and amounts paid in
settlement in connection with any claim, action, suit, proceeding or
investigation arising out of or pertaining to acts or omissions, or alleged acts
or omissions, by them in their capacities as such occurring at or prior to the
Effective Time. In the event of any such claim, action, suit, proceeding, or
investigation (an "Action"), (i) any Indemnified Party wishing to claim
indemnification shall promptly notify Holding Company thereof, (ii) Holding
Company shall pay the reasonable fees and expenses of counsel selected by the
Indemnified Party, which counsel shall be reasonably acceptable to Holding
Company, in advance of the final disposition of any such Action to the full
extent permitted by applicable law, upon receipt of any undertaking required by
applicable law, and (iii) Holding Company will cooperate in the defense of any
such matter; provided, however, that Holding Company shall not be liable for any
settlement effected without its written consent and provided, further, that
Holding Company shall not be obligated pursuant to this Section to pay the fees
and disbursements of more than one counsel for all Indemnified Parties in any
single Action except to the extent that, in the opinion of counsel for the
Indemnified Parties, two or more of such Indemnified Parties have conflicting
interests in the outcome of such action.
(b) Holding Company shall keep in effect, and shall cause the surviving
corporation of the CRA Merger to keep in effect, provisions in its Articles or
Certificate of Incorporation or Organization and Bylaws providing for
exculpation of director and officer liability and its indemnification of the
Indemnified Parties to the fullest extent permitted under applicable law, which
provisions shall not be amended except as required by applicable law or except
to make
- 38 -
changes permitted by law that would enlarge the Indemnified Parties' rights of
exculpation and indemnification.
(c) For a period of six years after the Effective Time, Holding Company
shall cause to be maintained officers' and directors' liability insurance
covering the Indemnified Parties who are currently covered, in their capacities
as officers and directors, by CRA's or OSI's existing officers' and directors'
liability insurance policies on terms materially no less advantageous to the
Indemnified Parties than such existing insurance; provided, however, that
Holding Company shall not be required in order to maintain or procure such
coverage to pay an annual premium for either CRA or OSI in excess of one and
one-half times the current annual premium paid by OSI for its existing coverage
(the "Cap") (which current annual premium is approximately $110,000); and
provided, further, that if equivalent coverage cannot be obtained for CRA or
OSI, or can be obtained only by paying an annual premium in excess of the Cap,
Holding Company shall only be required to obtain as much coverage for CRA or OSI
as can be obtained by paying an annual premium equal to such Cap.
(d) In the event that Holding Company or any of its successors or assigns
(i) consolidates with or merges into any other person and shall not be the
continuing or surviving corporation or entity of such consolidation or merger or
(ii) transfers all or substantially all of its properties and assets to any
person, then, in each such case, proper provisions shall be made so that the
successors and assigns of Holding Company shall assume the obligations set forth
in this Section 7.12.
(e) The provisions of this Section shall survive the consummation of the
Mergers and expressly are intended to benefit each of the Indemnified Parties.
The foregoing provisions of this Section 7.12 shall not limit or impair the
rights of the Indemnified Parties arising under any indemnification or other
agreements to which they are a party, the charter, bylaws or other
organizational documents of CRA and OSI and their respective Subsidiaries or
applicable laws.
7.13. Takeover Statute. If any "fair price", "moratorium", "control share
acquisition" or other form of antitakeover statute or regulation shall become
applicable to the transactions contemplated hereby, CRA and OSI and the members
of the Boards of Directors of CRA and OSI shall grant such approvals and take
such actions as are reasonably necessary so that the transactions contemplated
hereby may be consummated as promptly as practicable on the terms contemplated
hereby and otherwise act to eliminate or minimize the effects of such statute or
regulation on the transactions contemplated hereby.
7.14. Conduct of Business by Holding Company and CRA Merger Sub Pending
the Mergers. Prior to the Effective Time and subject to any applicable
regulatory approvals, CRA and OSI shall cause Holding Company and CRA Merger Sub
to (a) perform their respective obligations hereunder and under this Agreement
and the Merger Agreements in accordance with the terms hereof and thereof and
take all other actions necessary or appropriate for the
- 39 -
consummation of the transactions contemplated hereby and thereby, (b) not incur
directly or indirectly any liabilities or obligations except those incurred in
connection with the consummation of this Agreement and the Merger Agreements and
the transactions contemplated hereby and thereby, (c) not engaged directly or
indirectly in any business or activities of any type or kind whatsoever and not
enter into any agreements or arrangements with any person or entity, or be
subject to or be bound by any obligation or undertaking which is not
contemplated by this Agreement or the Merger Agreements and (d) not create,
grant or suffer to exist any lien upon their respective properties or assets
which would attach to any properties or assets of CRA or OSI after the Effective
Time.
7.15. Employee Benefits. Immediately following the Effective Time, Holding
Company will cause employee benefit plans to be in effect for the benefit of
CRA's and OSI's employees that are reasonably comparable in the aggregate to the
employee benefit plans that were in effect immediately prior to the Effective
Time.
7.16. Conveyance Taxes. OSI and CRA shall cooperate in the preparation,
execution and filing of all returns, questionnaires, applications or other
documents regarding any real property transfer or gains, sales, use, transfer,
value added, stock transfer and stamp taxes, any transfer, recording,
registration and other fees, and any similar taxes which become payable in
connection with the transactions contemplated by this Agreement that are
required or permitted to be filed on or before the Effective Time.
7.17 Incentive Plan. Holding Company shall promptly adopt an executive
long term incentive plan reasonably acceptable to both CRA and OSI.
ARTICLE 8
CONDITIONS
8.1. Conditions to Each Party's Obligation to Effect the Mergers. The
respective obligation of each party to effect the Mergers shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions:
(a) This Agreement and the transactions contemplated hereby shall have
been approved in the manner required by applicable law or by the applicable
regulations of the Nasdaq National Market, any stock exchange or other
regulatory body, as the case may be, by the holders of the issued and
outstanding shares of capital stock of OSI and CRA, respectively.
(b) The waiting period applicable to the consummation of the Mergers under
the HSR Act shall have expired or been terminated and all filings required to be
made prior to the Effective Time with, and all consents, approvals, permits and
authorizations required to be obtained prior to the Effective Time from, any
Governmental Entity in connection with the execution and delivery of this
Agreement and the consummation of the transactions
- 40 -
contemplated hereby shall have been made or obtained (as the case may be),
except for such consents, approvals, permits or authorizations the failure of
which to be obtained would not, in the aggregate, be reasonably likely to have,
a Material Adverse Effect on Holding Company (assuming the Mergers have taken
place) or to materially adversely affect the consummation of the Mergers, and no
such consent, approval, permit or authorization shall impose terms or conditions
that would have, or would be reasonably likely to have, a Material Adverse
Effect on Holding Company (assuming the Mergers have taken place).
(c) No temporary restraining order, preliminary or permanent injunction or
other order issued by any court of competent jurisdiction, no order of any
Governmental Entity having jurisdiction over any party hereto, and no other
legal restraint or prohibition shall be in effect (an "Injunction") preventing
or making illegal the consummation of the Mergers. In the event any such
Injunction shall have been issued, each party agrees to use its reasonable best
efforts to have any such Injunction lifted.
(d) The Form S-4 shall have become effective and shall be effective at the
Effective Time, and no stop order suspending effectiveness of the Form S-4 shall
have been issued, no action, suit, proceeding or investigation by the SEC to
suspend the effectiveness thereof shall have been initiated and be continuing
or, to the knowledge of CRA or OSI, threatened.
(e) All consents, authorizations, orders and approvals of (or filings or
registrations with) any governmental commission, board or other regulatory body
required in connection with the execution, delivery and performance of this
Agreement shall have been obtained or made, except for filings in connection
with the Mergers and any other documents required to be filed after the
Effective Time and except where the failure to have obtained or made any such
consent, authorization, order, approval, filing or registration would not have a
material adverse effect on the business, results of operations or financial
condition of CRA and OSI (and their respective Subsidiaries), taken as a whole,
following the Effective Time.
(f) The Holding Company Common Stock to be issued to CRA and OSI
stockholders in connection with the Mergers shall have been approved for
quotation on the Nasdaq National Market, subject only to official notice of
issuance.
8.2. Conditions to Obligation of OSI to Effect the Mergers. The obligation
of OSI to effect the Mergers shall be subject to the fulfillment at or prior to
the Closing Date of the following conditions:
(a) CRA shall have performed in all material respects its agreements
contained in this Agreement required to be performed on or prior to the Closing
Date, the representations and warranties of CRA contained in this Agreement and
in any document delivered in connection herewith shall be true and correct in
all respects as of the Closing Date (other than those representations and
warranties which contain qualifications as to materiality, which shall be true
and correct in all respects as of the Closing Date), except (i) for changes
specifically
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permitted by this Agreement and (ii) that those representations and warranties
which address matters only as of a particular date shall remain true and correct
in all material respects as of such date (other than those representations and
warranties which contain qualifications as to materiality, which shall be true
and correct in all respects as of such date), and OSI shall have received a
certificate of the President or a Vice President of CRA, dated the Closing Date,
certifying to such effect.
(b) OSI and Holding Company shall have received the opinion of Xxxxxx &
Xxxxxx L.L.P., special counsel to OSI and Holding Company, based upon reasonably
requested representation letters and dated the Closing Date, to the effect that
the OSI Merger will be treated as a reorganization governed by Section 368(a) of
the Code; and that OSI will not recognize gain or income in the OSI Merger.
(c) From the date of this Agreement through the Effective Time, there
shall not have occurred any change in the financial condition, business or
operations of CRA and its Subsidiaries, taken as a whole, that would have or
would be reasonably likely to have a CRA Material Adverse Effect.
(d) Holders of not more than 5% of the CRA Common Stock outstanding
immediately preceding the Effective Time shall have perfected appraisal rights
under applicable law.
(e) At the Closing, OSI shall have received an opinion, dated the Closing
Date, from CRA's independent auditors, Xxxxxx Xxxxxxxx, L.L.P., to the effect
that the business combination to be effected by the Mergers would be properly
accounted for as a pooling-of-interests.
(f) The opinion of DLJ referred to in Section 5.15 herein shall have been
reissued at the time of mailing the Proxy Statement/Prospectus and shall not
have been withdrawn or materially modified by DLJ in a manner adverse to OSI's
stockholders.
8.3. Conditions to Obligation of CRA to Effect the Mergers. The obligation
of CRA to effect the Mergers shall be subject to the fulfillment at or prior to
the Closing Date of the following conditions:
(a) OSI shall have performed in all material respects its agreements
contained in this Agreement required to be performed on or prior to the Closing
Date, the representations and warranties of OSI contained in this Agreement and
in any document delivered in connection herewith shall be true and correct in
all material respects as of the Closing Date (other than those representations
and warranties which contain qualifications as to materiality, which shall be
true and correct in all respects as of the Closing Date), except (i) for changes
specifically permitted by this Agreement and (ii) that those representations and
warranties which address matters only as of a particular date shall remain true
and correct in all material
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respects as of such date (other than those representations and warranties which
contain qualifications as to materiality, which shall be true and correct in all
respects as of such date), and CRA shall have received a certificate of the
President or Vice President of OSI, dated the Closing Date, certifying to such
effect.
(b) CRA shall have received the opinion of Xxxxxxxx, Xxxxxxx & Xxxxxxx,
special counsel to CRA, based upon reasonably requested representation letters
and dated the Closing Date, to the effect that the CRA Merger will be treated as
a transfer of property to Holding Company by holders of CRA Common Stock
governed by Section 351(a) of the Code or a reorganization governed by Section
368(a) of the Code or both; and OSI and Holding Company shall have received the
opinion of Xxxxxx & Xxxxxx LLP described in Section 8.2(b) of this Agreement.
(c) From the date of this Agreement through the Effective Time, there
shall not have occurred any change in the financial condition, business or
operations of OSI and its Subsidiaries, taken as a whole, that would have or
would be reasonably likely to have an OSI Material Adverse Effect.
(d) Holders of not more than 5% of the OSI Common Stock outstanding
immediately preceding the Effective Time shall have perfected appraisal rights
under applicable law.
(e) At the Closing, CRA shall have received an opinion, dated the Closing
Date, from OSI's independent auditors, Xxxxxx Xxxxxxxx, L.L.P., to the effect
that the business combination to be effected by the Mergers would be properly
accounted for as a pooling-of-interests.
(f) The opinion of Alex. Xxxxx & Sons Incorporated referred to in Section
6.15 herein shall have been reissued at the time of mailing the Proxy
Statement/Prospectus and shall not have been withdrawn or materially modified by
Alex. Xxxxx & Sons Incorporated in a manner adverse to CRA's stockholders.
ARTICLE 9
TERMINATION
9.1. Termination by Mutual Consent. This Agreement may be terminated and
the Mergers may be abandoned at any time prior to the Effective Time, before or
after the approval of this Agreement by the stockholders of CRA or OSI, by the
mutual written consent of CRA and OSI.
9.2. Termination by Either CRA or OSI. This Agreement may be terminated
and the Mergers may be abandoned by action of the Board of Directors of either
CRA or OSI if (a) the
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Mergers shall not have been consummated by October 31, 1997, or (b) the approval
of OSI's stockholders required by Section 8.1(a) shall not have been obtained at
a meeting duly convened therefor or at any adjournment thereof, or (c) the
approval of CRA's stockholders required by Section 8.1(a) shall not have been
obtained at a meeting duly convened therefor or at any adjournment thereof, or
(d) a United States federal or state court of competent jurisdiction or United
States federal or state governmental, regulatory or administrative agency or
commission shall have issued an order, decree or ruling or taken any other
action permanently restraining, enjoining or otherwise prohibiting the
transactions contemplated by this Agreement and such order, decree, ruling or
other action shall have become final and non-appealable; provided, that the
party seeking to terminate this Agreement pursuant to this clause (d) shall have
used all commercially reasonable efforts to remove such injunction, order or
decree; and provided, in the case of a termination pursuant to clause (a) above,
that the terminating party shall not have breached in any material respect its
obligations under this Agreement in any manner that shall have proximately
contributed to the failure to consummate the Mergers by October 31, 1997.
9.3. Termination by OSI. This Agreement may be terminated and the Mergers
may be abandoned at any time prior to the Effective Time, before or after the
adoption and approval by the stockholders of OSI referred to in Section 8.1(a),
by action of the Board of Directors of OSI, if (a) in the exercise of its good
faith judgment as to fiduciary duties to its stockholders imposed by law, as
advised by outside counsel, the Board of Directors of OSI determines that such
termination is required by reason of an OSI Alternative Proposal being made;
provided that OSI shall notify CRA promptly of its intention to terminate this
Agreement or enter into a definitive agreement with respect to any OSI
Alternative Proposal, but in no event shall notice be given less than one full
business day prior to the public announcement of OSI's termination of this
Agreement; or (b) there has been a breach by CRA of any representation or
warranty contained in this Agreement which would have or would be reasonably
likely to have a CRA Material Adverse Effect; or (c) there has been a material
breach of any of the covenants or agreements set forth in this Agreement on the
part of CRA, which breach is not curable or, if curable, is not cured within 30
days after written notice of such breach is given by OSI to CRA; or (d) the
Board of Directors of CRA shall have withdrawn or modified in a manner
materially adverse to OSI its approval or recommendation of this Agreement or
the Mergers. Notwithstanding the foregoing, OSI's ability to terminate this
Agreement pursuant to this Section 9.3 is conditioned upon the prior payment by
OSI of any amount owed by it pursuant to Section 9.5(a).
9.4. Termination by CRA. This Agreement may be terminated and the Mergers
may be abandoned at any time prior to the Effective Time, before or after the
approval by the stockholders of CRA referred to in Section 8.1(a), by action of
the Board of Directors of CRA, if (a) in the exercise of its good faith judgment
as to fiduciary duties to its stockholders imposed by law, as advised by outside
counsel, the Board of Directors of CRA determines that such termination is
required by reason of a CRA Alternative Proposal being made; provided that CRA
shall notify OSI promptly of its intention to terminate this Agreement or enter
into a
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definitive agreement with respect to any CRA Alternative Proposal, but in no
event shall notice be given less than one full business day prior to the public
announcement of CRA's termination of this Agreement; or (b) there has been a
breach by OSI of any representation or warranty contained in this Agreement
which would have or would be reasonably likely to have an OSI Material Adverse
Effect; or (c) there has been a material breach of any of the covenants or
agreements set forth in this Agreement on the part of OSI, which breach is not
curable or, if curable, is not cured within 30 days after written notice of such
breach is given by CRA to OSI; or (d) the Board of Directors of OSI shall have
withdrawn or modified in a manner materially adverse to CRA its approval or
recommendation of this Agreement or the Mergers. Notwithstanding the foregoing,
CRA's ability to terminate this Agreement pursuant to this Section 9.4 is
conditioned upon the prior payment by CRA of any amount owed by it pursuant to
Section 9.5(b).
9.5. Effect of Termination and Abandonment. (a) In the event that any
person shall have made an OSI Alternative Proposal for OSI and thereafter this
Agreement is terminated pursuant to Section 9.3(a) or Section 9.4(d), then OSI
shall pay to CRA a fee of $10 million, which amount shall be payable by wire
transfer of same day funds either on the date contemplated in the last sentence
of 9.3 if applicable or, otherwise, within two business days after such amount
becomes due. OSI acknowledges that the agreements contained in this Section
9.5(a) are an integral part of the transactions contemplated by this Agreement,
and that, without these agreements, CRA would not enter into this Agreement;
accordingly, if OSI fails to properly pay the amount due pursuant to this
Section 9.5(a) and, in order to obtain such payment, CRA commences a suit which
results in a judgment against OSI for the fee set forth in this Section 9.5(a),
OSI shall pay to CRA its costs and expenses (including attorneys' fees) in
connection with such suit, together with interest in the amount of the fee at
the rate of 12% per annum.
(b) In the event that any person shall have made a CRA Alternative
Proposal for CRA and thereafter this Agreement is terminated pursuant to Section
9.4(a) or 9.3(d), then CRA shall pay to OSI a fee of $10 million, which amount
shall be payable by wire transfer of same day funds either on the date
contemplated in the last sentence of 9.4 if applicable or, otherwise, within two
business days after such amount becomes due. CRA acknowledges that the
agreements contained in this Section 9.5(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
OSI would not enter into this Agreement; accordingly, if CRA fails to properly
pay the amount due pursuant to this Section 9.5(b) and, in order to obtain such
payment, OSI commences a suit which results in a judgment against CRA for the
fee set forth in this Section 9.5(b), CRA shall pay to OSI its costs and
expenses (including attorneys' fees) in connection with such suit, together with
interest in the amount of the fee at the rate of 12% per annum.
(c) In the event of termination of this Agreement and the abandonment of
the Mergers pursuant to this Article 9, all obligations of the parties hereto
shall terminate, except the obligations of the parties pursuant to this Section
9.5 and Section 7.11 and except for the
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provisions of Article 10. Moreover, in the event of termination of this
Agreement pursuant to Section 9.3 or 9.4, nothing herein shall prejudice the
ability of the non-breaching party from seeking damages from any other party for
any breach of this Agreement, including without limitation, attorneys' fees and
the right to pursue any remedy at law or in equity.
9.6. Extension, Waiver. At any time prior to the Effective Time, any party
hereto, by action taken by its Board of Directors, may, to the extent legally
allowed, (a) extend the time for the performance of any of the obligations or
other acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties made to such party contained herein or in any
document delivered pursuant hereto and (c) waive compliance with any of the
agreements or conditions for the benefit of such party contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in an instrument in writing signed on behalf of such
party.
ARTICLE 10
GENERAL PROVISIONS
10.1. Nonsurvival of Representations, Warranties and Agreements. All
representations, warranties and agreements in this Agreement or in any
instrument delivered pursuant to this Agreement shall be deemed to the extent
expressly provided herein to be conditions to the Mergers and shall not survive
the Mergers, provided, however, that the agreements contained in Article 4,
Section 7.11, Section 7.12, Section 7.15 and this Article 10 shall survive the
Mergers and Sections 7.11 and 9.5 shall survive termination.
10.2. Notices. Any notice or communication required or permitted hereunder
shall be in writing and either delivered personally, telegraphed or telecopied
or sent by next day delivery by a nationally recognized overnight delivery
service or by certified or registered mail, postage prepaid, and shall be deemed
to be given, dated and received (i) when so delivered personally, (ii) upon
receipt of an appropriate electronic answerback or confirmation when so
delivered by telegraph or telecopy (to such number specified below or another
number or numbers as such person may subsequently designate by notice hereunder)
or (iii) one business day after sending by overnight delivery, and five business
days after the date of mailing by certified or registered mail, to the following
address or to such other address or addresses as such person may subsequently
designate by notice given hereunder, if so delivered by mail:
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If to CRA:
CRA Managed Care, Inc.
000 Xxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Chairman
Telecopier No.: (000) 000-0000
With copies to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx Xxxxxx, Esq.
Telecopier No.: (000) 000-0000
If to OSI:
OccuSystems, Inc.
0000 XXX Xxxxxxx
Xxxxx 000
Xxxxxx, XX 00000
Attention: General Counsel
Telecopier No.: (000) 000-0000
With copies to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxx Xxxxxx
Xxxxx 0000
Xxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
If to Holding Company:
Concentra Managed Care, Inc.
c/o CRA in accordance with the provisions
of this Section 10.2 and to
Concentra Managed Care, Inc.,
c/o OSI in accordance with the provisions
of this Section 10.2
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or to such other address as any party shall specify by written notice so given.
10.3. Assignment; Binding Effect. Neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned 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
Section 7.12 and Section 7.15 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.
10.4. Entire Agreement. This Agreement, the Exhibits, OSI Disclosure
Letter, CRA Disclosure Letter, the Confidentiality Agreement dated March 19,
1997, between OSI and CRA (except that the "standstill" provisions set forth in
such Confidentiality Agreement are hereby deemed to be superseded by Section 9
of each of the CRA Stock Option Agreement and the OSI Stock Option Agreement),
and any documents delivered by the parties in connection herewith constitute the
entire agreement among the parties with respect to the subject matter hereof and
supersede all prior agreements and understandings among the parties with respect
thereto. 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.
10.5. 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 presented in connection with Mergers by the
stockholders of OSI and CRA, 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.
10.6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of Delaware without regard to its rules of conflict of
laws, except that the provisions of Article 2 and Article 4 with respect to the
CRA Merger shall be governed by and construed in accordance with the laws of the
Commonwealth of Massachusetts.
10.7. Counterparts. This Agreement may be executed by the parties hereto
in separate counterparts, each of which when 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.
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10.8. 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.
10.9. 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.
10.10.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.
10.11.Incorporation of Exhibits. The OSI Disclosure Letter, CRA Disclosure
Letter and all Exhibits and Schedules attached hereto and referred to herein are
hereby incorporated herein and made a part hereof for all purposes as if fully
set forth herein.
10.12.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.
10.13.Enforcement of Agreement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement was
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 to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any Federal or state court located in the
State of Delaware, this being in addition to any other remedy to which they are
entitled at law or in equity.
10.14.Subsidiaries. As used in this Agreement, the word "Subsidiary" when
used with respect to any party means any corporation or other organization,
whether incorporated or unincorporated, 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 any organization of which such party is a
general partner. When a reference is made in this Agreement to Significant
Subsidiaries, the words
- 49 -
"Significant Subsidiaries" shall refer to Subsidiaries (as defined above) which
constitute "significant subsidiaries" under Rule 405 promulgated by the SEC
under the Securities Act.
[Remainder of this Page Intentionally Left Blank]
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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.
CRA MANAGED CARE, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
President and Chief Executive Officer
OCCUSYSTEMS, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Chairman and Chief Executive Officer
CONCENTRA MANAGED CARE, INC.
By: /s/ Xxxx X. Xxxxxxx
-------------------------------------
Chairman
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