EXHIBIT 2.3
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BENTLEY SYSTEMS, INCORPORATED,
GP ACQUISITION SUB, INC.,
GEOPAK CORPORATION
AND
THE GEOPAK STOCKHOLDERS
LISTED ON THE SIGNATURE PAGE HERETO
Dated as of September 18, 2001
TABLE OF CONTENTS
PAGE
ARTICLE 1 DEFINITIONS............................................................................... 1
1.1 Certain Definitions........................................................................... 1
1.2 Other Definitions............................................................................. 5
ARTICLE 2 BASIC TRANSACTION......................................................................... 6
2.1 Merger; Surviving Corporation................................................................. 6
2.2 Certificate of Incorporation.................................................................. 7
2.3 By-laws....................................................................................... 7
2.4 Directors and Officers........................................................................ 7
2.5 Effective Time................................................................................ 7
2.6 Conversion of Securities...................................................................... 7
2.7 Exchange of Certificates...................................................................... 8
2.8 Restricted Securities......................................................................... 9
2.9 Allocation of Consideration................................................................... 9
2.10 Closing....................................................................................... 9
2.11 Transactions at Closing....................................................................... 9
ARTICLE 3 REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................. 10
3.1 Organization and Authority.................................................................... 10
3.2 Contravention; Validity....................................................................... 10
3.3 Consents...................................................................................... 10
3.4 Books and Records; Accounts Receivable........................................................ 11
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS........................................ 11
4.1 Contravention; Validity....................................................................... 11
4.2 Company Representations....................................................................... 11
4.3 Alienability of Shares........................................................................ 12
4.4 Rights and Options............................................................................ 12
4.5 Securities Law Matters........................................................................ 12
4.6 Transactions with Affiliates.................................................................. 14
4.7 Stock Ownership............................................................................... 14
4.8 Capital Stock................................................................................. 14
4.9 Financial Statements.......................................................................... 14
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TABLE OF CONTENTS
(continued)
PAGE
4.10 Compliance with Laws, Licenses, Registrations, etc............................................ 15
4.11 Title to Properties Leases; Assets Owned by BHA............................................... 15
4.12 Intellectual Property......................................................................... 15
4.13 Compliance with Other Instruments............................................................. 16
4.14 Contracts and Binding Commitments............................................................. 16
4.15 Pending Litigation, etc....................................................................... 17
4.16 Taxes......................................................................................... 17
4.17 Events Since Reviewed Statements.............................................................. 18
4.18 Employee Benefit Plans; Employment Matters.................................................... 19
4.19 Customers..................................................................................... 20
4.20 Brokers or Finders............................................................................ 21
4.21 Full Disclosure............................................................................... 21
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF BENTLEY AND MERGER SUB.................................. 21
5.1 Organization and Authority.................................................................... 21
5.2 Contravention; Validity....................................................................... 21
5.3 Consents...................................................................................... 22
5.4 Representations and Warranties Concerning Class C and Class D Shares.......................... 22
ARTICLE 6 CLOSING DELIVERIES OF COMPANY AND STOCKHOLDERS............................................ 22
ARTICLE 7 CLOSING DELIVERIES OF BENTLEY AND MERGER SUB.............................................. 24
ARTICLE 8 POST-CLOSING COVENANTS.................................................................... 25
8.1 Employment Matters............................................................................ 25
8.2 Tax Matters................................................................................... 26
8.3 Non-Competition............................................................................... 26
ARTICLE 9 INDEMNIFICATION........................................................................... 28
9.1 Survival of Representations and Warranties.................................................... 28
9.2 Indemnification by Stockholders and Company................................................... 28
9.3 Indemnification by Bentley.................................................................... 28
9.4 Stockholders' Representative.................................................................. 29
9.5 Matters Involving Third Parties............................................................... 29
9.6 Release....................................................................................... 30
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TABLE OF CONTENTS
(continued)
PAGE
ARTICLE 10 MISCELLANEOUS............................................................................. 31
10.1 Parties Obligated and Benefited............................................................... 31
10.2 Expenses...................................................................................... 31
10.3 Notices....................................................................................... 32
10.4 Headings...................................................................................... 33
10.5 Choice of Law; Exclusive Jurisdiction......................................................... 33
10.6 Rights Cumulative............................................................................. 34
10.7 Further Actions............................................................................... 34
10.8 Counterparts.................................................................................. 34
10.9 Entire Agreement.............................................................................. 34
10.10 Amendments and Waivers........................................................................ 34
10.11 Construction.................................................................................. 34
10.12 Disclosure.................................................................................... 35
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Exhibits
Exhibit 1 DGCL Certificate of Merger
Exhibit 2 FBCA Articles of Merger
Exhibit 3 Opinion of Company's Counsel
Exhibit 4 Opinion of Bentley's Counsel
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER ("AGREEMENT") is made as of the 18th day
of September, 2001, by and among BENTLEY SYSTEMS, INCORPORATED, a Delaware
corporation ("BENTLEY"), GP ACQUISITION SUB, INC., a Delaware corporation
("MERGER SUB"), GEOPAK CORPORATION, a Florida corporation (the "COMPANY"), and
the stockholders of the Company (the "STOCKHOLDERS") listed on the signature
page hereto. Bentley, Merger Sub, the Company and the Stockholders are
collectively referred to herein as the "PARTIES."
RECITALS:
A. The Boards of Directors of each of the Company, Bentley and Merger Sub
believe it is in the best interests of each company and their respective
stockholders that Bentley acquire the Company through the statutory merger of
the Company with and into Merger Sub (the "MERGER") and, in furtherance thereof,
have approved the Merger.
B. Pursuant to the Merger, among other things, and subject to the terms
and conditions of this Agreement, (i) all outstanding shares of common stock of
the Company ("COMPANY COMMON STOCK") other than Company Common Stock owned by
Bentley shall be converted into the right to receive the Merger Consideration
and (ii) all outstanding options and other rights to acquire or receive shares
of Company Common Stock shall be assumed and become outstanding options and
other rights to acquire or receive shares of Class B Common Stock of Bentley
("BENTLEY CLASS B COMMON STOCK").
C. The Parties intend that the Merger qualify as a reorganization pursuant
to Section 368(a)(2)(D) of the Internal Revenue Code of 1986, as amended (the
"CODE").
NOW, THEREFORE, in consideration of the premises and mutual promises
herein made, and in consideration of the representations, warranties, covenants
and agreements herein contained and intending to be legally bound hereby, the
Parties agree as follows:
ARTICLE 1
DEFINITIONS
1.1 Certain Definitions. The following terms shall, when used in this
Agreement, have the following meanings:
"AFFILIATE" means, with respect to any Person: (i) each Person that,
directly or indirectly, owns or controls, whether beneficially, or as a trustee,
guardian or other fiduciary, 50% or more of the stock having ordinary voting
power in the election of directors of such Person; and (ii) any officer,
director or partner of such other Person. "Control" for the foregoing purposes
shall mean the possession, directly or indirectly, of the power to direct or
cause the
direction of the management and policies of a Person, whether through the
ownership of voting securities or voting interests, by contract or otherwise.
"ASSETS" mean all properties, assets, privileges, powers, rights,
interests and claims of every type and description that are owned, leased, held,
used or useful in the Company's business and in which the Company has any right,
title or interest or in which the Company acquires any right, title or interest
on or before the Closing Date, wherever located, whether known or unknown, and
whether or not now or on the Closing Date on the Books and Records.
"BOOKS AND RECORDS" mean all of the Company's books and records,
including purchase and sale order files, invoices, sales materials and records,
customer lists, mailing lists, marketing information, personnel records and
files, technical data and records, all correspondence with and documents
pertaining to suppliers, Governmental Authorities and other third parties, all
records evidencing accounts receivable and schedules of accounts receivable
aging, all other financial records and all books and records relating to the
Company's formation and capitalization, including corporate seals, minute books
and stock books.
"BUSINESS DAY" means any day other than Saturday, Sunday or a day on
which banking institutions in Philadelphia, Pennsylvania are required or
authorized to be closed.
"COLLATERAL DOCUMENTS" mean the Exhibits and disclosure schedules to
this Agreement and any other agreements, documents, instruments and certificates
to be executed and delivered by the Parties at Closing pursuant to this
Agreement.
"ENCUMBRANCE" means any mortgage, pledge, lien, encumbrance, charge,
security interest, security agreement, conditional sale or other title retention
agreement, option, assessment, restrictive agreement, adverse interest,
restriction on transfer or any exception to or defect in title or other
ownership interest (including restrictive covenants, leases and licenses), but
excluding encumbrances for current taxes not delinquent or being contested in
good faith.
"ENVIRONMENTAL LAWS" means all foreign, federal, provincial, state
and local laws, regulations, codes, rules and ordinances relating to pollution
or protection of human health, safety or the environment, including, without
limitation, laws relating to releases or threatened releases of Hazardous
Substances into the indoor or outdoor environment (including, without
limitation, ambient air, surface water, groundwater, land, surface and
subsurface strata) or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, release, transport or handling of
Hazardous Substances, and all laws and regulations with regard to recordkeeping,
notification, disclosure and reporting requirements respecting Hazardous
Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended.
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"GAAP" means United States generally accepted accounting principles
as in effect from time to time.
"GOVERNMENTAL AUTHORITY" means: (i) the United States of America;
(ii) any state, commonwealth, territory or possession of the United States of
America and any political subdivision thereof (including counties,
municipalities and the like); (iii) any foreign (as to the United States of
America) sovereign entity and any political subdivision thereof; or (iv) any
agency, authority or instrumentality of any of the foregoing, including any
court, tribunal, department, bureau, commission or board.
"HAZARDOUS SUBSTANCES" means any toxic, radioactive, caustic, or
other hazardous substance or waste, including, petroleum, its derivatives,
byproducts, and other hydrocarbons, pollutants, contaminants, or any other
substance defined as such by, or regulated as such under, any Environmental Law.
"INTELLECTUAL PROPERTY" means and include all rights, title, and
interests in the following items: (a) domestic and foreign patents (including,
without limitation, certificates of invention, utility models and other patent
equivalents), and all provisional applications, patent applications, and patents
issuing therefrom, as well as any division, continuation, continuation in part,
reissue, extension, re-examination certification, revival or renewal of any
patent, all inventions and subject matter relating to such patents, in any and
all forms, and all patents and applications for patents relating to such
patents, (b) domestic and foreign trademarks, trade dress, service marks, trade
names, icons, logos and slogans and any other indicia of source or sponsorship
of goods and services, designs and logotypes related thereto, and all trademark
registrations and applications for registration related to such trademarks
(including, but not limited to intent to use applications), (c) copyrightable
works and copyright interests in any of the Assets, including, without
limitation, all common-law rights, all registered copyrights and all rights to
register and obtain renewals and extensions of copyright registration, together
with all copyright interests accruing by reason of international copyright
conventions, (d) Inventions, (e) Software and other works of authorship, (f)
trade secrets, (g) know-how, (h) all rights necessary to prevent claims of
invasion of privacy, rights of publicity, defamation, or any other causes of
action arising out of the use, adaptation, modification, reproduction,
distribution, sales or display of the Software, (i) all income, royalties,
damages and payments accrued after the Closing with respect to the Software and
all other rights thereunder, (j) all rights to use all of the foregoing forever
or for the applicable term of each right, (k) all processes, designs, formulas,
semiconductor mask works, industrial models, engineering and technical drawings,
prototypes, improvements, discoveries, technology, data and other intellectual
or intangible property and/or proprietary rights or interests of the Company
(and all goodwill associated therewith), and (l) all rights to xxx for past,
present or future infringement, misappropriation or other violations or
impairments of any of the foregoing enumerated in subclauses (a) through (k)
above, and to collect and retain all damages and profits therefor.
"INVENTIONS" means all novel devices, processes, compositions of
matter, methods, techniques, observations, discoveries, apparatuses, designs,
expressions, theories and
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ideas (including improvements and modifications thereof through the date hereof)
relating to the Assets, whether or not patentable.
"LEGAL REQUIREMENT" means any statute, ordinance, law, rule,
regulation, code, plan, injunction, judgment, order, decree, writ, ruling,
charge or other requirement, standard or procedure enacted, adopted or applied
by any Governmental Authority.
"LETTER OF INTENT" means that certain Letter of Intent dated June 5,
2001 by and among Bentley, the Company and the Stockholders.
"LIABILITY" means any liability or obligation of the Company
(whether known or unknown, whether asserted or unasserted, whether absolute or
contingent, whether accrued or unaccrued, whether liquidated or unliquidated,
and whether due or to become due), including any liability for Taxes.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on the
business, earnings, properties, condition, Assets or prospects of the Company.
"OPTION AGREEMENT" means the Option Agreement, by and among Bentley,
the Company and the holders of Common Stock of the Company listed on Schedule
5.2(a) therein, dated December 18, 1996.
"PERSON" means any natural person, corporation, partnership, trust,
unincorporated organization, association, limited liability company,
Governmental Authority or other entity.
"REPRESENTATIVE" means any director, officer, employee, agent,
consultant, adviser or other representative of a Person, including legal
counsel, accountants and financial advisors.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and
the rules and regulations promulgated thereunder.
"SECURITIES PURCHASE AGREEMENT" means the Securities Purchase
Agreement, by and among Bentley, the Purchasers identified therein and, for
certain limited purposes, Xxxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxxxxx, dated as of
December 26, 2000, as amended by the Amendment to Securities Purchase Agreement,
by and among Bentley and the Purchasers identified therein, dated as of July 2,
2001, and as further amended by the Joinder and Amendment to Securities Purchase
Agreement, by and among the Stockholders and the Company, dated the date hereof.
"SHAREHOLDERS' AGREEMENT" means the Shareholders' Agreement, by and
among the Company, Bentley and the other shareholders of the Company listed on
Exhibit A thereto, dated as of December 18, 1996.
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"SOFTWARE" means the expression of an organized set of instructions
in a natural or coded language, including without limitation, compilations and
sequences, which is contained on a physical media of any nature (e.g., written,
electronic, magnetic, optical or otherwise) and which may be used with a
computer or other automated data processing equipment device of any nature which
is based on digital technology, to make such computer or other device operate in
a particular manner and for a certain purpose, as well as any related
documentation for such set of instructions. The term shall include, without
limitation, computer programs in source and object code, test or other
significant data libraries, documentation for computer programs, modifications,
enhancements, revisions or versions of or to any of the foregoing and prior
releases of any of the foregoing applicable to any operating environment, and
any of the following which is contained on a physical media of any nature and
which is used in the design, development, modification, enhancement, testing,
installation, use, maintenance, diagnosis or assurance of the performance of a
computer program: narrative descriptions, notes, specifications, designs,
flowcharts, parameter descriptions, logic flow diagrams, masks, input and output
formats, file layouts, database formats, test programs, test or other data, user
guides, manuals, installation and operating instructions, diagnostic and
maintenance instructions, source code, object code and other similar materials
and information.
"TERRITORY" means the United States, Canada, the United Kingdom,
Australia, New Zealand and their territories and possessions.
1.2 Other Definitions. The following terms shall, when used in this
Agreement, have the meanings assigned to such terms in the Sections indicated.
Term Section
---- -------
"AGREEMENT" Preamble
"BENTLEY" Preamble
"BENTLEY BOARD APPROVALS" 7.1(c)
"BENTLEY CLASS B COMMON STOCK" Recitals
"BENTLEY ENTITIES" 8.3(a)
"BENTLEY INDEMNIFIED PARTIES" 9.2
"BENTLEY SECURITIES" 2.6(a)
"CLOSING" 2.10
"CLOSING DATE" 2.10
"CODE" Recitals
"COMPANY" Preamble
"COMPANY BOARD APPROVAL" 6.1(e)
"COMPANY COMMON STOCK" Recitals
"CONTRACTS" 4.14(a)
"CORPORATE GOVERNANCE OBLIGATIONS" 4.14(c)
"DAMAGES" 9.2
"DGCL" 2.1
"DGCL CERTIFICATE OF MERGER" 2.5
"EFFECTIVE TIME" 2.5
"EMPLOYMENT AGREEMENTS" 6.1(a)
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"FBCA" 2.1
"FBCA ARTICLES OF MERGER" 2.5
"FINANCIAL STATEMENTS" 3.9
"INDEMNIFIED PARTY" 9.5(a)
"INDEMNIFYING PARTY" 9.5(a)
"INFORMATION STATEMENT" 4.5(h)
"INTERIM STATEMENTS" 4.9
"JOINDER TO THE
REGISTRATION RIGHTS AGREEMENT" 6.1(c)
"JOINDER TO THE
SECURITIES PURCHASE AGREEMENT" 6.1(b)
"MERGER" Recitals
"MERGER CONSIDERATION" 2.6
"MERGER SUB" Preamble
"NON-COMPETITION COVENANTS" 8.3(a)
"PARTIES" Preamble
"PENSION PLAN" 4.18(a)
"PLANS" 4.18(b)
"PRE-CLOSING PERIODS" 8.2(a)
"PROFESSIONAL FEES" 10.2
"RELATED PERSONS" 9.6
"RELEASEE" 9.6
"RELEASEES" 9.6
"RETURNS" 4.16(b)
"REVIEWED STATEMENTS" 4.9
"RULE 144" 4.5(e)
"STOCKHOLDERS" Preamble
"STOCKHOLDER INDEMNIFIED PARTIES" 9.3
"STOCKHOLDERS' REPRESENTATIVE" 9.4
"SURVIVING CORPORATION" 2.1
"TAXES" 4.16(a)
"THIRD PARRY CLAIM" 9.5(a)
"WARRANTS" 6.1(d)
ARTICLE 2
BASIC TRANSACTION
2.1 Merger; Surviving Corporation. In accordance with the provisions of
this Agreement, the General Corporation Law of the State of Delaware ("DGCL")
and the Business Corporation Act of the State of Florida ("FBCA"), at the
Effective Time the Company shall be merged with and into Merger Sub, and Merger
Sub shall be the surviving corporation in the Merger (hereinafter sometimes
called the "SURVIVING CORPORATION") and shall continue its corporate existence
under the laws of the State of Delaware. At the Effective Time, the separate
existence of the Company shall cease. All properties, franchises and rights
belonging to the
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Company and Merger Sub, by virtue of the Merger and without further act or deed,
shall be deemed to be vested in the Surviving Corporation, which shall
thenceforth be responsible for all the liabilities and obligations of each of
Merger Sub and the Company.
2.2 Certificate of Incorporation. At the Effective Time, Article 1 of the
Certificate of Incorporation of Merger Sub, as in effect immediately prior to
the Effective Time, shall be amended to read in its entirety as follows:
"1. Name: The name of the corporation shall be Geopak
Corporation."
Except for such amendment, the Certificate of Incorporation of Merger Sub as in
effect immediately prior to the Effective Time shall thereafter continue in full
force and effect as the Certificate of Incorporation of the Surviving
Corporation until altered or amended as provided therein or by applicable law.
2.3 By-laws. Merger Sub's By-laws as in effect immediately prior to the
Effective Time shall be the By-laws of the Surviving Corporation until altered,
amended or repealed as provided therein or by applicable law.
2.4 Directors and Officers. The directors of Merger Sub immediately prior
to the Effective Time shall serve as directors of the Surviving Corporation
following the Effective Time in accordance with the Certificate of Incorporation
and By-laws of the Surviving Corporation and the DGCL. The officers of the
Company immediately prior to the Effective Time shall serve in such capacities
at the pleasure of the Board of Directors of the Surviving Corporation following
the Effective Time in accordance with the Certificate of Incorporation and
By-Laws of the Surviving Corporation and the DGCL.
2.5 Effective Time. The Merger shall become effective at the time and date
that the last of the following two events has occurred: (i) the acceptance for
filing of a certificate of merger (the "DGCL CERTIFICATE OF MERGER"), in the
form attached hereto as Exhibit 1, by the Secretary of State of the State of
Delaware in accordance with the provisions of Section 252 of the DGCL; and (ii)
the acceptance for filing of articles of merger (the "FBCA ARTICLES OF MERGER"),
in the form attached hereto as Exhibit 2, by the Secretary of State of the State
of Florida, in accordance with Section 607.1109 of the FBCA. The DGCL
Certificate of Merger and the FBCA Articles of Merger shall be executed by
Merger Sub and/or the Company, as applicable, and delivered to the Secretary of
State of the State of Delaware and the Secretary of State of the State of
Florida, respectively, for filing, as stated above, on the Closing Date. The
date and time when the Merger shall become effective are referred to herein as
the "Effective Time."
2.6 Conversion of Securities.
(a) At the Effective Time, all of the issued and outstanding
shares of Company Common Stock other than Company Common Stock owned by Bentley
shall be converted into the right to receive following (the "MERGER
CONSIDERATION"):
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(i) cash in an amount equal to $8,000,000;
(ii) 35,000 shares of Bentley's Class C Senior Common
Stock to be issued in accordance with the Joinder to the Securities Purchase
Agreement;
(iii) 480,000 shares of Bentley's Class D Non-Voting
Common Stock; and
(iv) warrants to purchase 485,333 shares of Bentley's
Class B Non-Voting Common Stock to be issued in accordance with the Joinder to
the Securities Purchase Agreement.
The shares of capital stock and the warrants to purchase shares of capital stock
to be issued and sold by Bentley at the Effective Time pursuant to this Section
2.6(a) collectively are referred to as the "BENTLEY SECURITIES."
(b) At the Effective Time, all of the outstanding shares of
Company Common Stock owned by Bentley shall be cancelled.
(c) At the Effective Time, each of the then outstanding
options held by Company employees to purchase Company Common Stock shall by
virtue of the Merger and at the Effective Time, and without any further action
on the part of any holder thereof, be assumed by Bentley and converted into an
option to purchase, under Bentley's 1997 Stock Option Plan, that number of
shares of Bentley Class B Common Stock determined by multiplying the number of
shares of Company Common Stock subject to such option at the Effective Time by
1.4667, at an exercise price per share equal to the exercise price per share of
such option immediately prior to the Effective Time divided by 1.4667. If the
foregoing calculation results in an option being exercisable for a fraction of a
share of Bentley Class B Common Stock, then the number of shares of Bentley
Class B Common Stock subject to such option shall be rounded up to the nearest
whole number of shares. The term, exercisability, vesting schedule, status as an
"Incentive Stock Option" under Section 422 of the Code, if applicable, and all
other terms and conditions of stock options issued pursuant to this Section
2.6(c) will to the extent permitted by law and otherwise reasonably practicable
remain unchanged. Continuous employment with the Company shall be credited to
the optionees for purposes of determining the vesting of the number of shares of
Bentley Class B Common Stock subject to exercise under the optionees' converted
stock options after the Effective Time, and all optionees who have fully vested
options to purchase shares of capital stock of Geopak immediately prior to the
Effective Time will receive fully vested options to purchase shares of Bentley
Class B Common Stock in accordance with the conversion ratio set forth above.
2.7 Exchange of Certificates. At the Closing, immediately after the
Effective Time of the Merger, all of the Stockholders shall surrender to the
Surviving Corporation all of the outstanding certificates theretofore
representing shares of Company Common Stock in exchange for the Merger
Consideration payable to the Stockholders at Closing. Until such certificates
are surrendered, outstanding certificates formerly representing shares of
Company Common Stock shall be deemed for all purposes as evidencing the right to
receive the Merger Consideration into
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which such shares have been converted as though said surrender and exchange had
taken place. In no event will a holder of shares of Company Common Stock be
entitled to interest on the Merger Consideration issuable in respect of such
shares.
2.8 Restricted Securities.
(a) The Bentley Securities to be issued pursuant to this
Agreement and the Securities Purchase Agreement have not been, and, except as
contemplated by the Registration Rights Agreement, will not be, registered under
the Securities Act, and will be issued in a transaction that is exempt from the
registration requirements of the Securities Act. Until such Bentley Securities
are registered and sold under the Securities Act, they will be "restricted
securities" under the federal securities laws and cannot be offered or resold
except pursuant to registration under the Securities Act or an available
exemption from registration.
(b) All certificates representing such Bentley Securities
shall bear, in addition to any other legends required under applicable
securities laws, the following legend and such other legends as are required by
the Transaction Documents:
The shares represented by this certificate have not been registered under
the Securities Act of 1933, as amended, and may not be transferred except
pursuant to registration under the Securities Act or pursuant to an available
exemption from registration.
2.9 Allocation of Consideration. The Merger Consideration shall be
allocated among the Stockholders in proportion to the number of shares of
Company Common Stock owned by each such Stockholder at the Effective Time;
provided, however, that no fraction of a share of any Bentley Securities will be
issued.
2.10 Closing. The closing of the transactions contemplated by this
Agreement ("CLOSING") shall take place at the offices of Drinker Xxxxxx & Xxxxx
LLP, Eighteenth and Xxxxxx Xxxxxxx, Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000, or at such
other location as the parties may agree, on September 18, 2001, or on such other
date that the Parties may agree. The date on which the Closing actually occurs
is referred to herein as the "CLOSING DATE."
2.11 Transactions at Closing. At the Closing:
(a) The Stockholders shall surrender certificates representing
Company Common Stock pursuant to Section 2.7, and the Company and the
Stockholders shall deliver to Bentley and the Surviving Corporation such
documents, instruments and certificates as are required by this Agreement to be
delivered by them.
(b) Bentley shall deliver to the Company and Stockholders:
(i) the Merger Consideration allocated pursuant to
Section 2.9; and
(ii) such documents, instruments and certificates as are
required by this Agreement to be delivered by Bentley and Merger Sub.
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ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Bentley and Merger Sub as follows:
3.1 Organization and Authority.
(a) The Company is a corporation duly incorporated and/or
organized, validly existing and in good standing under the laws of the State of
Florida and has all requisite power and authority (corporate and other) to own,
lease, operate or otherwise hold its Assets, to conduct its business as
currently conducted and as currently proposed to be conducted.
(b) The Company is duly licensed or qualified to do business
as a foreign corporation and is in good standing in each jurisdiction in which
the failure to so qualify could have a Material Adverse Effect.
3.2 Contravention; Validity.
(a) The execution, delivery and performance by the Company of
this Agreement and each of the Collateral Documents, the consummation by the
Company of the transactions contemplated hereby and thereby, and compliance by
the Company with all of the provisions of this Agreement, will not (i) result in
any breach or violation of, or conflict with, any Legal Requirement; (ii)
violate or result in any breach of any of the provisions of, or constitute a
default under, give rise to a right of termination or cancellation of, or
accelerate the performance required by any terms of, as the case may be, any
indenture, mortgage, agreement, lease, license, note, permit, franchise,
contract, deed of trust or other instrument to which the Company is a party or
by which it or any of its Assets may be bound; or (iii) violate or conflict with
any provision of the Articles of Incorporation, the By-laws or other governing
agreement of the Company.
(b) This Agreement has been duly and validly executed and
delivered by the Company and constitutes the valid and binding obligation of the
Company, enforceable against it in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
3.3 Consents. The execution, delivery and performance by the Company of
this Agreement and the Collateral Documents are within the Company's corporate
powers, have been duly authorized by all necessary corporate action on the part
of the Company and do not and will not require any consent or approval of any
Person (other than consents or approvals which have been obtained) or any
authorization, consent or approval by, or registration, qualification,
declaration or filing with, or notice to any Governmental Authority (other than
actions and filings that have been taken or made and the filings contemplated by
Section 2.5 hereof).
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3.4 Books and Records; Accounts Receivable. The Books and Records
accurately and fairly represent the Company's business and its results of
operations in all material respects. The accounts receivable of the Company are
valid receivables subject to no setoffs or counterclaims and are current and
collectible, subject to any reserve for doubtful accounts provided for in the
Interim Statements.
3.5 Brokers or Finders. No broker or finder has acted directly or
indirectly for the Company or any of its Affiliates in connection with the
transactions contemplated by this Agreement. Neither the Company nor any of its
Affiliates has incurred any obligation to pay any brokerage or finder's fee or
other commission in connection with the transactions contemplated by this
Agreement.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
The Stockholders, jointly and severally, hereby represent and warrant to
Bentley and Merger Sub as follows:
4.1 Contravention; Validity.
(a) The execution, delivery and performance by the
Stockholders of this Agreement and each of the Collateral Documents to which
they are parties, the consummation by the Stockholders of the transactions
contemplated hereby and thereby, and compliance by the Stockholders with all of
the provisions of this Agreement, will not (i) result in any breach or violation
of, or conflict with, any Legal Requirement; and (ii) violate or result in any
breach of any of the provisions of, or constitute a default under, give rise to
a right of termination or cancellation of, or accelerate the performance
required by any terms of, as the case may be, any indenture, mortgage,
agreement, lease, license, note, permit, franchise, contract, deed of trust or
other instrument to which the Stockholders or the Company are parties or by
which the Stockholders or any of the Company Common Stock may be bound.
(b) This Agreement has been duly and validly executed and
delivered by each Stockholder and constitutes the valid and binding obligation
of each such Stockholder (with respect to his or her obligations hereunder),
enforceable against each such Stockholder in accordance with its terms, except
as enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar laws affecting creditors' rights generally
and except as enforceability may be subject to general principles of equity
(regardless of whether such enforceability is considered in a proceeding in
equity or at law).
4.2 Company Representations. To the best knowledge of each Stockholder,
the representations and warranties of the Company in Article 3 are true,
complete and accurate.
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4.3 Alienability of Shares.
(a) Each Stockholder has the unfettered right to alienate the
shares of Company Common Stock owned by him or her. Each Stockholder will cause
such unfettered alienability of his or her shares of Company Common Stock
(including by way of exclusion thereof from any community property) to remain in
effect until the Closing.
(b) Each Stockholder represents that, if married, he or she is
not physically nor legally separated from his or her spouse, is not involved in
divorce proceedings with his or her spouse and that the transactions entered
into pursuant to this Agreement constitute arms' length transactions.
4.4 Rights and Options. Except as set forth on Schedule 4.4 and for the
rights granted to Bentley under the Option Agreement, there are no options,
warrants, calls or other rights, agreements or commitments relating to the
Company Common Stock owned by each Stockholder, including any right of
conversion or exchange, actually or contingently, under any outstanding security
or other instrument.
4.5 Securities Law Matters.
(a) Each of Xxxxxxx Xxxxxx and Xxxxxxxxx Xxxxxx is an
"accredited investor" as such term is defined in Rule 501 of Regulation D under
the Securities Act.
(b) The principal residence of each of Xxxxxxx Xxxxxx,
Xxxxxxxxx Xxxxxx, Xxxx Xxxxxx, Xxxxxx Panayatoff and Xxxxxxx Xxxxx is located in
the State of Florida and the principal residence of Xxxxxx Xxxxxxx is located in
Australia. No Stockholder has received any communications from Bentley or its
Representatives regarding his investment in the Bentley Securities at any
location other than in the state or jurisdiction of his principal residence. At
all times during the negotiation of this Agreement and the related transactions,
each Stockholder has been represented by Xxxxxxx Xxxxxx, as his purchaser
representative, and Xxxxxx Xxxxxxxx, P.A., as his counsel.
(c) (i) The Bentley Securities will be acquired by each
Stockholder for investment for the Stockholder's own account, and not with a
view to the sale or distribution of any part thereof in violation of applicable
Federal and state securities laws, and (ii) no Stockholder has any current
intention of selling, granting participation in or otherwise distributing the
same in violation of applicable Federal and state securities laws.
(d) Each Stockholder understands that the Bentley Securities
will not be registered under the Securities Act or any state securities law on
the basis that the sale provided for in this Agreement and the issuance of the
Bentley Securities hereunder is exempt from registration under the Securities
Act or any state securities law. Except as required by the Registration Rights
Agreement, Bentley shall not be obligated to register the Bentley Securities
under the Securities Act or any state securities law.
(e) Each Stockholder understands that the Bentley Securities
will bear a restrictive legend prohibiting transfers thereof except in
compliance with applicable Federal
- 12 -
and state securities laws and will not be transferred of record except in
compliance therewith. Bentley may require, as a condition to transferring the
Bentley Securities, an opinion of counsel satisfactory to it that such transfer
complies with applicable Federal and state securities laws. Stop transfer
instructions will be issued to Bentley's transfer agent, if any, with respect to
the Bentley Securities or, if Bentley acts as its own transfer agent, Bentley
will make a notation on its records concerning these restrictions on transfer.
(f) Each Stockholder understands that unless previously
registered with the Securities and Exchange Commission, the Bentley Securities
may not be sold, transferred or otherwise disposed of without registration under
the Securities Act or an exemption therefrom, and that in the absence of an
effective registration statement covering the Bentley Securities or an available
exemption from registration under the Securities Act, the Bentley Securities
must be held indefinitely. In particular, each Stockholder is aware that the
Bentley Securities may not be sold pursuant to Rule 144 promulgated under the
Securities Act ("RULE 144") unless all of the conditions of that Rule are met.
Among the current conditions for use of Rule 144 by certain holders is the
availability to the public of current information about Bentley. Such
information is not now available.
(g) Each Stockholder (i) can afford to bear the economic risk
of holding the unregistered Bentley Securities for an indefinite period of time,
has no need for liquidity in any Bentley Securities he or she may hold, and has
adequate means for providing for his or her current needs and contingencies,
(ii) can afford to suffer a complete loss of his or her investment in the
Bentley Securities, and (iii) understands and has taken cognizance of all risk
factors related to the receipt of the Bentley Securities. Each Stockholder's
overall commitment to investments which are not readily marketable is not
disproportionate to his or her net worth and his investment in Bentley
Securities will not cause such overall commitment to become excessive. Each
Stockholder has such knowledge and experience in business and financial matters
that he or she is capable of evaluating Bentley and the activities thereof and
the risks and merits of investment in the Bentley Securities, of making an
informed investment decision thereon and of protecting his or her interests in
connection with the transaction.
(h) Each Stockholder (i) is familiar with the business and
financial condition, properties, operations and prospects of Bentley, (ii) has
received and carefully reviewed and evaluated the Bentley Information Statement
dated July 31, 2001 and the supplement thereto dated August 15, 2001
(collectively, the "INFORMATION STATEMENT"), which have been provided by Bentley
to the Stockholders, including the "Risk Factors" set forth therein, and (iii)
has been given, through his or her Representatives, full access to all material
information concerning the condition, properties, operations and prospects of
Bentley, including, without limitation, all material books of Bentley and
contracts and documents relating to the transactions contemplated hereby. Each
Stockholder and his or her Representatives have had an opportunity to ask
questions of, and to receive information from, Bentley and persons acting on its
behalf concerning the terms and conditions of his or her investment in the
Bentley Securities and to obtain any additional information necessary to verify
the accuracy of the information and data received by him or her. Neither the
Stockholders nor their Representatives have been furnished any offering
literature other than the Information Statement and the documents attached as
exhibits thereto, and the Stockholders and their Representatives have relied or
will
- 13 -
rely only on the information contained in the Information Statement and its
exhibits and such other information as is described in this subparagraph (h),
furnished or made available to them by Bentley.
(i) Each Stockholder acknowledges that at no time has there
been any representation, guarantee or warranty to him or her by any
broker-dealer, Bentley, their agents or employees, or any other person,
expressly or by implication, concerning any of the following:
(i) the approximate or exact length of time that the
Stockholder will be required to retain ownership of Bentley Securities;
(ii) the percentage of profit or amount of, or type of
consideration, profit or loss to be realized, if any, as a result of an
investment in Bentley Securities; or
(iii) that the past performance or experience of Bentley
will in any way indicate the predictable results of the ownership of Bentley
Securities.
4.6 Transactions with Affiliates. Except as disclosed in Schedule 4.6, the
Company is not a party to any contract or agreement with any Stockholder, any
other Affiliate or any Affiliate of any Stockholder.
4.7 Stock Ownership. Each Stockholder is the owner of record and the
beneficial owner of that number of shares of Company Common Stock set forth
opposite his or her name in Schedule 4.7, free and clear of all Encumbrances.
4.8 Capital Stock. The authorized capital stock of the Company is as set
forth on Schedule 4.8. The issued and outstanding capital stock is owned of
record and beneficially by the Stockholders and by Bentley in the proportions
set forth in Schedule 4.8 hereto. All such outstanding shares of capital stock
have been duly authorized, validly issued and are fully paid, non-assessable and
free of preemptive rights. Except as set forth in Schedule 4.8 hereto, no shares
of capital stock are held in the treasury of the Company. Except for the
Stockholders' Agreement, there are no voting trusts or other agreements or
understandings with respect to the voting of any capital stock of the Company.
Except as set forth in Schedule 4.8 hereto, the Company is not subject to any
obligation (contingent or otherwise) to repurchase, acquire or retire any shares
of its capital stock.
4.9 Financial Statements. The Company has furnished to Bentley complete
and accurate copies of (i) financial statements of the Company for the fiscal
years ended December 31, 1998, 1999 and 2000, all of which have been reviewed by
Xxxxxxx Xxxxxxxxx, independent accountant for the Company (the "REVIEWED
STATEMENTS"), and (ii) unaudited financial statements for the 6-month period
ended June 30, 2001 (the "INTERIM STATEMENTS" and together with the Reviewed
Statements, the "FINANCIAL STATEMENTS"), copies of which are attached as
Schedule 4.9. The Financial Statements have been prepared in accordance with
GAAP, applied on a consistent basis during the respective periods. The Financial
Statements are true, correct and complete and present fairly the Assets,
Liabilities, retained earnings, profit and loss and the financial position of
the Company as of such dates and the results of its operations for such
- 14 -
periods. The Company does not have any material Liability, individually or in
the aggregate, of the nature required to be disclosed on a balance sheet
prepared in accordance with GAAP that is not disclosed by the Financial
Statements referred to above. Except as disclosed in Schedule 4.9, since the
date of the most recent Reviewed Statements delivered to Bentley pursuant to
this Section 4.9 there has not been, occurred or arisen any material adverse
change in, or any event, condition or state of facts which could have a Material
Adverse Effect.
4.10 Compliance with Laws, Licenses, Registrations, etc. The Company and
its Assets are in compliance with all Legal Requirements, including, without
limitation, all Environmental Laws, except for such noncompliance as could not
reasonably be expected to have a Material Adverse Effect, and no Governmental
Authority, including, without limitation, any Governmental Authority enforcing
or adjudicating Environmental Laws, has taken any action, or threatened to take
any action by written notice to the Company to revoke or suspend any approval
necessary for the conduct of such business as now conducted and as proposed to
be conducted.
4.11 Title to Properties; Leases; Assets Owned by BHA.
(a) The Company is the sole owner of, and has good,
indefeasible and marketable title to all Assets reflected as being owned by it
on the Financial Statements, as well as to all Assets acquired since the date of
the Reviewed Statements (except Assets disposed of since such dates in the
ordinary course of business consistent with past practice consistent with past
practice), including without limitation all GEOPAK Products (as such term is
defined in the Stockholders' Agreement). Except as set forth on Schedule
4.11(a), there are no Encumbrances on any of such Assets. The Company has the
right to, and does, enjoy peaceful and undisturbed possession under all leases
and licenses under which it is leasing or licensing property or other Assets.
All such leases and licenses are valid, subsisting and in full force and effect,
and none of such leases or licenses is in default on the part of the Company
nor, to the knowledge of the Company or the Stockholders, on the part of any
other Person.
(b) Except as set forth on Schedule 4.11(b), there are no
assets owned or leased by Xxxxxxxxxx, Xxxx and Associates, Inc. that are used or
useable by or in the possession of the Company.
4.12 Intellectual Property.
(a) Schedule 4.12(a) sets forth a true and complete list of
all Intellectual Property.
(b) Except as otherwise described in Schedule 4.12(b): (i)
Company owns or has the exclusive perpetual right to use, without payment to any
other party, all Intellectual Property; (ii) no other person has any rights in
or to any of the Intellectual Property (including, without limitation, any
rights to royalties or other payments with respect to, or rights to market or
distribute any of, the Intellectual Property); (iii) the rights of Company in
and to any of the Intellectual Property will not be limited or otherwise
affected by reason of any of the transactions contemplated hereby; (iv) the
Intellectual Property is sufficient for the conduct of
- 15 -
the Company's business as such is presently conducted; and (v) none of the
Intellectual Property infringes or is alleged to infringe any trademark,
copyright, patent or other proprietary right of any person.
(c) All employees of Company or other Persons involved with
the development, implementation, use or marketing of any Intellectual Property
have entered into written agreements assigning to Company all rights to any
Intellectual Property related to Company's business.
4.13 Compliance with Other Instruments. The Company is not in default in
the performance, observance or fulfillment of any of the obligations, covenants
or conditions contained in, and is not otherwise in default under, (a) any
evidence of indebtedness or any instrument or agreement under or pursuant to
which any evidence of indebtedness has been issued; or (b) any other material
instrument or agreement to which it is a party or by which it is bound or any of
its properties is affected.
4.14 Contracts and Binding Commitments.
(a) Schedule 4.14 lists all of the material contracts,
agreements or arrangements (in each case, whether written or oral) (the
"CONTRACTS") to which the Company is a party or by which any of its Assets are
or may be bound including, without limitation employment agreements, software
license and lease agreements and agreements relating to borrowed money. The
Company has provided correct and complete copies of, or if none exist, written
descriptions of all of the Contracts to Bentley.
(b) All of the Contracts are valid and binding in all respects
and enforceable in accordance with their terms and are in full force and effect.
None of the Contracts contain terms which in the ordinary course of business
consistent with past practice could reasonably be expected to have a Material
Adverse Effect. The Company and, to the best knowledge of the Stockholders, each
other party to the Contracts, has performed in all material respects all
obligations required to be performed by them to date under the Contracts.
Neither the Company nor, to the best knowledge of the Stockholders, any other
party to any of the Contracts, is in or claimed to be in material breach or
default in any respect under any term or provision of any of the Contracts. The
Closing of the transactions contemplated by this Agreement will not result in
the termination of any of the Contracts under the express terms thereof, will
not require the consent of any party thereto and will not bring into operation
any other provision thereof nor result in a breach or default thereunder. There
exists no condition or event which, after notice or lapse of time or both, would
constitute a default by the Company of any of the Contracts. To the best
knowledge of the Stockholders, there exists no condition or event which, after
notice or lapse of time or both, would constitute a default by any other party
of any of the Contracts.
(c) Without limiting the representations set forth in Sections
4.12(a) and (b): (i) the Company and the Stockholders have performed all
obligations and taken all actions required to be performed or taken by them to
date under Article IV (Corporate Governance) of the Stockholders' Agreement (the
"CORPORATE GOVERNANCE OBLIGATIONS") and
- 16 -
all other material obligations and actions required to be performed or taken by
them under the Stockholders' Agreement; and (ii) there exists no condition or
event which, after notice or lapse of time or both, would constitute a default
by the Company or the Stockholders of any of the Corporate Governance
Obligations or any other material term or provision of the Stockholders'
Agreement.
(d) The Company is not a party to or bound by (nor is any of
its Assets affected by) any Contract, or subject to any Legal Requirement or any
charter or other corporate or contractual restriction, which could reasonably be
expected to have a Material Adverse Effect.
4.15 Pending Litigation, etc. There is no claim, action at law, suit in
equity or other proceeding or investigation in, by or before any Governmental
Authority pending or, to the knowledge of the Stockholders, threatened against
or affecting the Company or any of its Assets that, either individually or in
the aggregate, (a) could reasonably be expected to have a Material Adverse
Effect or (b) could question the validity or enforceability of the transactions
contemplated by this Agreement.
4.16 Taxes.
(a) Definition. For purpose of this Agreement, the term
"TAXES" means all taxes, fees, levies, customs, duties, charges or other
assessments, including, without limitation, all Federal, state, local, foreign
and other income, franchise, profits, gross receipts, capital gains, capital
stock, transfer, sales, use, occupation, property, excise, severance, windfall
profits, stamp, license, payroll, withholding and other taxes, assessments, or
duties of any kind whatsoever (whether payable directly or by withholding and
whether or not requiring the filing of a Return), and all estimated taxes,
deficiency assessments, additions to tax, penalties, fines and interest.
(b) Tax Returns. The Company has timely filed or caused to be
timely filed or will timely file or cause to be timely filed with the
appropriate taxing authorities all returns, statements, forms and reports for
Taxes (the "RETURNS") that are required to be filed by the Company on or prior
to the Closing. The Returns accurately reflect all liability for Taxes of the
Company for the periods covered thereby.
(c) Payment of Taxes. All Taxes and Tax liabilities of the
Company due on or prior to the Closing have been timely paid or will be timely
paid in full on or prior to the Closing. As of the Closing, the aggregate amount
of all Taxes with respect to the income, property or operations of the Company
that relate to a tax period beginning before and ending after the Closing does
not and will not exceed $25,000.
(d) Other Tax Matters.
(i) Except for an audit by the Florida Department of
Revenue with respect to sales tax and intangibles tax, there are no audits,
suits, investigations or inquiries (threatened or pending) or other examination
of Taxes by the appropriate tax authorities of any nation, state or locality
currently in progress with respect to the Company.
- 17 -
(ii) Neither the Stockholders nor the Company have, as
of the date hereof, (A) entered into an agreement or waiver or been requested to
enter into an agreement or waiver extending any statute of limitations relating
to the filing of any Return or the payment or collection of Taxes of the
Company, (B) applied for and not yet received a ruling or determination from a
taxing authority regarding a past or prospective transaction of the Company, or
(C) is presently contesting the Tax liability of the Company before any court,
tribunal or agency.
(iii) The Company has not been included in or joined in
the filing of any "consolidated" or "combined" Return provided for under the law
of the United States, any state or locality with respect to Taxes for any
taxable period.
(iv) Since the last filing date of each applicable
Return, there has not been any change in any method of reporting income or
expenses for federal, state or local Tax purposes followed by the Company.
(v) The Company has not filed a consent with the
Internal Revenue Service pursuant to Section 341(f) of the Code and has not
agreed to have Section 341(f)(2) of the Code apply to any disposition of a
subsection (f) asset (as defined in Section 341 (f) of the Code) owned by the
Company.
(vi) All Taxes relating to the income, properties or
operations of the Company which the Company is required by law to withhold or
collect have been duly withheld or collected, and have been timely paid over to
the proper authorities to the extent due and payable.
(vii) There are no tax sharing or allocation agreements
in effect on the Closing Date as between the Stockholders or the Company with
respect to Taxes.
(viii) No property shown as an Asset on the Books and
Records is "tax-exempt use property" within the meaning of Section 168(h) of the
Code nor property that Bentley will be required to treat as being owned by
another person pursuant to Section 168 of the Code (or any corresponding
provision of prior law).
(ix) No Stockholder is a "foreign person" within the
meaning of Section 1445 of the Code.
(x) The Company is not a party to any agreement that
would require the Company to make any payment that would constitute an "excess
parachute payment" for purposes of Sections 280G and 4999 of the Code.
(xi) The Company is not now and has never been a partner
in any partnership and has not participated in any joint venture.
4.17 Events Since Reviewed Statements. Since December 31, 2000 there has
not been any material change in the operations, condition (financial or
otherwise), business policies or practices of the Company.
- 18 -
4.18 Employee Benefit Plans; Employment Matters.
(a) Schedule 4.18(a) hereto lists each "employee pension
benefit plan", as such term is defined in Section 3(2) of ERISA (each, a
"PENSION PLAN"), and each "employee welfare benefit plan", as such term is
defined in Section 3(1) of ERISA (together with the Pension Plans, the "PLANS")
which is maintained by the Company or to which the Company contributes and which
is subject to ERISA, excluding any Plan which is a multi-employer plan as such
term is defined in Section 3(37) of ERISA. Each Pension Plan that is intended to
be qualified under Section 401(a) of the Code (i) has received a favorable
determination letter from the Internal Revenue Service and the Company is not
aware of any circumstances likely to result in revocation of any such favorable
determination letter and (ii) has been amended to comply with the Tax Reform Act
of 1986 and subsequent laws. Each Plan has complied in all material respects
with the applicable provisions of ERISA and the Code. The Company has not
engaged in any transaction with respect to any Plan which, assuming the taxable
period of such transaction expired as of the date of this Agreement, could
result in any taxes or penalties on prohibited transactions under Section 4975
of the Code or under Section 502(i) of ERISA, in an amount that would reasonably
be expected to have a Material Adverse Effect.
(b) No Pension Plan has an "accumulated funding deficiency",
as such term is defined in Section 302 of ERISA and Section 412 of the Code
(whether or not waived). The Company had not incurred any liability to the
Pension Benefit Guaranty Corporation under Title IV of ERISA, other than for the
payment of premiums, all of which have been paid when due. No notice of a
"reportable event," within the meaning of Section 4043 of ERISA for which the
30-day reporting requirement has not been waived, has been required to be filed
for any Pension Plan within the 12-month period ending on the date hereof. The
Company has not incurred a partial or complete withdrawal from any Plan that is
a multi-employer plan, other than a withdrawal that would result in de minimis
liability not in excess of the maximum amount subject to reduction under Section
4209 of ERISA.
(c) Except as set forth on Schedule 4.18(c), under each
Pension Plan that is a "single employer plan," within the meaning of Section
4001(a)(15) of ERISA, as of the last day of the most recent plan year ended
prior to the date hereof, the actuarially determined present value of "benefit
liabilities," within the meaning of Section 4001(a)(16) of ERISA (as determined
on the basis of actuarial assumptions contained in the Plan's most recent
actuarial valuation), did not exceed the then current value of the assets of
such Plan. There has been no material change in the financial condition of such
Plan since the last day of the most recent plan year.
(d) The Company has no obligations for retiree health and life
benefits under any Plan, except as set forth on Schedule 4.18(d). Subject to the
provisions of the Stockholders' Agreement, the Company may amend or terminate
any such Plan, under the terms of such Plan, without incurring any material
liability thereunder.
(e) None of the Plans provides for the payment of separation,
severance, termination or similar-type benefits to any person or obligates the
Company to pay separation, severance, termination or similar-type benefits
solely or partially as a result of any
- 19 -
transaction contemplated by this Agreement or as a result of a "change in
control", within the meaning of such term under Section 280G of the Code.
Neither the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, either alone or together with another event,
will (i) result in any payment (including, without limitation, severance,
unemployment compensation, golden parachute, forgiveness of indebtedness or
otherwise) becoming due under any Plan, (ii) increase any benefits otherwise
payable under any Plan or other arrangement, (iii) result in the acceleration of
the time of payment, vesting or funding of any benefits, or (iv) affect in any
respects any Plan's current treatment under any Legal Requirements including any
tax or social contribution law.
(f) There are no collective bargaining agreements applicable
to any Persons employed by the Company, and the Company has no duty to bargain
with any labor organization with respect to any such Person. There are not
pending any unfair labor practice charges against the Company, nor is there any
demand for recognition, or any other request or demand from a labor organization
for representative status with respect to any person employed by the Company.
(g) The Company is in substantial compliance with all
applicable Legal Requirements respecting employment conditions and practices,
has withheld all amounts required by any applicable Legal Requirements or
Contracts to be withheld from the wages or salaries of its employees, and is not
liable for any arrears of wages or any Taxes or penalties for failure to comply
with any of the foregoing.
(h) The Company has not engaged in any unfair labor practice
within the meaning of the National Labor Relations Act and has not violated any
Legal Requirement prohibiting discrimination on the basis of race, color,
national origin, sex, religion, age, marital status, or handicap in its
employment conditions or practices. There are not pending or, to any
Stockholder's knowledge, threatened unfair labor practice charges or
discrimination complaints relating to race, color, national origin, sex,
religion, age, marital status, or handicap against the Company in, by or before
any Governmental Authority.
(i) There are no existing or, to any Stockholder's knowledge,
threatened, labor strikes, disputes, grievances or other labor controversies
affecting the Company. There are no pending or, to any Stockholder's knowledge,
threatened arbitration proceedings under any Contract.
(j) The Company is not a party to any employment agreement or
arrangement, written or oral, relating to its employees which cannot be
terminated at will by the Company.
(k) Schedule 4.18(k) sets forth a true and complete list of
the names, titles and rates of compensation of the eighteen most highly
compensated employees of the Company.
4.19 Customers. As of the date hereof, none of the twenty (20) customers
to whom the Company made the most sales (measured by gross revenues) during the
fiscal year ended
- 20 -
December 31, 2000 and/or during 2001 fiscal year-to-date has cancelled or
otherwise terminated prior to the expiration of the contract term, or, to the
Stockholders' knowledge, made any written threat to the Company to cancel or
otherwise terminate its relationship with the Company.
4.20 Brokers or Finders. No broker or finder has acted directly or
indirectly for the Stockholders or any of their Affiliates in connection with
the transactions contemplated by this Agreement. Neither the Stockholders nor
any of their Affiliates has incurred any obligation to pay any brokerage or
finder's fee or other commission in connection with the transactions
contemplated by this Agreement.
4.21 Full Disclosure. Neither this Agreement (including all Exhibits and
Schedules hereto and any other agreements or documents delivered on the Closing
Date), nor any written report or Financial Statement delivered or furnished to
Bentley by or on behalf of the Stockholders pursuant to or in connection with
this Agreement, or the transactions contemplated hereby, contains any untrue
statement of a material fact or omits to state a material fact necessary to make
the statements contained herein or therein not misleading in light of the
circumstances under which they were made. There is no fact known to the
Stockholders that has not been disclosed to Bentley in writing that has or could
reasonably be expected to have a Material Adverse Effect.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF BENTLEY AND MERGER SUB
Bentley and Merger Sub jointly and severally represent and warrant to the
Company and the Stockholders as follows:
5.1 Organization and Authority.
(a) Each of Bentley and Merger Sub is a corporation duly
incorporated, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has all requisite power and authority
(corporate and other) to own, lease, operate or otherwise hold its properties,
to conduct its business as currently conducted and as currently proposed to be
conducted.
(b) Each of Bentley and Merger Sub is duly licensed or
qualified to do business as a foreign corporation and is in good standing in
each jurisdiction in which the failure to so qualify could have a material
adverse effect on its business, assets or operations.
5.2 Contravention; Validity.
(a) The execution, delivery and performance by Bentley and
Merger Sub of this Agreement and each of the other documents and agreements
related to any of the foregoing, the consummation by Bentley and Merger Sub of
the transactions contemplated hereby and thereby, and compliance by Bentley and
Merger Sub with all of the provisions of this Agreement, will not (i) result in
any breach or violation of, or conflict with, any Legal
- 21 -
Requirement; (ii) violate or result in any breach of any of the provisions of,
or constitute a default under, give rise to a right of termination or
cancellation of, or accelerate the performance required by any terms of, as the
case may be, any indenture, mortgage, agreement, lease, license, note, permit,
franchise, contract, deed of trust or other instrument to which Bentley or
Merger Sub or by which they or any of their properties may be bound; or (iii)
violate or conflict with any provision of the Certificate of Incorporation, the
By-laws or other governing agreement or instrument of Bentley or Merger Sub.
(b) This Agreement has been duly and validly executed and
delivered by each of Bentley and Merger Sub and constitutes the valid and
binding obligation of each of Bentley and Merger Sub, enforceable against each
in accordance with its terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or similar laws
affecting creditors' rights generally and except as enforceability may be
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law).
5.3 Consents. The execution, delivery and performance by each of Bentley
and Merger Sub of its obligations under this Agreement, and all other documents
and agreements related hereto are within the corporate powers of each of Bentley
and Merger Sub, respectively, have been duly authorized by all necessary
corporate action on the part of Bentley and Merger Sub, respectively, and do not
and will not require any consent or approval of any Person (other than consents
or approvals which have been obtained) or any authorization, consent or approval
by, or registration, qualification, declaration or filing with, or notice to any
Governmental Authority (other than actions and filings that have been taken or
made and the filings contemplated by Section 2.5 hereof).
5.4 Representations and Warranties Concerning Class C and Class D Shares.
The representations of Bentley set forth in Section 2 of the Securities Purchase
Agreement are incorporated herein by reference and restated as though originally
made in this Agreement on the date hereof with respect to the sale and issuance
by Bentley of the shares of its Class C Senior Common Stock, Class D Non-Voting
Common Stock and Warrants to purchase its Class B Non-Voting Common Stock
pursuant to Section 2.6 hereof; provided, however, that Schedule 5.4 attached to
this Merger Agreement updates Section 2.3(a) of the Securities Purchase
Agreement.
ARTICLE 6
CLOSING DELIVERIES OF COMPANY AND STOCKHOLDERS
6.1 The Company and the Stockholders shall have executed and delivered, or
caused to be executed and delivered by the appropriate Persons, to Bentley and
Merger Sub the following documents at the Closing:
(a) Employment Agreements with respect to those Stockholders
that currently have employment contracts with the Company (the "EMPLOYMENT
AGREEMENTS");
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(b) Joinder to the Securities Purchase Agreement among Bentley
and the purchasers identified therein, dated as of September 18, 2001 (the
"JOINDER TO THE SECURITIES PURCHASE AGREEMENT");
(c) Joinder to the Amended and Restated Information and
Registration Rights Agreement among Bentley and the Stockholders, dated as of
September 18, 2001 (the "JOINDER TO THE REGISTRATION RIGHTS AGREEMENT");
(d) The Common Stock Purchase Warrants issued by Bentley to
the Stockholders, each dated September 18, 2001 (the "WARRANTS");
(e) Evidence reasonably satisfactory to Bentley (i) that the
Company and the Stockholders have taken all action necessary to authorize the
execution of this Agreement and the Collateral Documents to which he, she or it
is a party and the consummation of the transactions contemplated hereby and
thereby, including, without limitation, the approval of the Company's Board of
Directors of the Merger and the other transactions contemplated by this
Agreement and the Collateral Documents (the "COMPANY BOARD APPROVAL") and any
actions required to be taken by the Company and/or the Stockholders pursuant to
the laws of the State of Florida and (ii) all consents, approvals,
authorizations and orders required to be obtained by the Company and/or the
Stockholders from, and all registrations, filings and notices required to be
made by the Company and/or the Stockholders with or given to, any Governmental
Authority or Person, have been duly obtained, made or given, as the case may be,
and are in full force and effect, unless the failure to obtain, make or give any
such consent, approval, authorization, order, registration, filing or notice,
would not have a Material Adverse Effect or impair the ability of the Company
and/or the Stockholders to consummate the transactions contemplated by this
Agreement and the Collateral Documents;
(f) Opinion of Xxxxxx Xxxxxxxx, P.A., counsel to the Company,
dated the Closing Date, in the form attached hereto as Exhibit 3;
(g) A certificate of the Secretary of the Company certifying,
among other things, the resolutions or written consent evidencing the Company
Board Approval and the Articles of Incorporation and By-laws of the Company;
(h) A certificate of an officer of the Company and the
Stockholders certfiying that (i) there has been no event, occurrence or
circumstance constituting a Material Adverse Effect since December 31, 2000,
(ii) there is no action, suit or proceeding pending or, to their knowledge,
threatened by or on behalf of any Person, and no Legal Requirement or policy of
any applicable Governmental Authority has been enacted, promulgated or issued
that would: (A) prohibit or materially adversely affect Bentley's or the
Surviving Corporation's ownership or operation of all or a material portion of
the Company's business or the Assets or otherwise materially impair the ability
of Bentley or the Surviving Corporation to realize the benefits of the
transactions contemplated by this Agreement and the Collateral Documents or
materially adversely affect the value of the Assets; (B) materially restrict or
limit or otherwise condition Bentley's or the Surviving Corporation's right to
transfer and/or assign the Company's business or the Assets in the future; (C)
compel Bentley or the Surviving Corporation to dispose of or
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hold separate all or a material portion of the Assets as a result of any of the
transactions contemplated by this Agreement and the Collateral Documents; (D)
prevent or make illegal the consummation of any transactions contemplated by
this Agreement and the Collateral Documents; or (E) cause any of the
transactions contemplated by this Agreement and the Collateral Documents to be
rescinded following the Closing; and (iii) no Stockholder has exercised or is
entitled to exercise dissenters' rights under the FBCA or any other applicable
law in connection with the Merger;
(i) The Books and Records; and
(j) Such other documents and instruments as Bentley may
reasonably request: (i) to evidence the performance by the Company and the
Stockholders of, or the compliance by the Company and the Stockholders with, any
covenant, obligation, condition and agreement to be performed or complied with
by the Company and/or the Stockholders under this Agreement and the Collateral
Documents; or (ii) to otherwise facilitate the consummation or performance of
any of the transactions contemplated by this Agreement and the Collateral
Documents.
ARTICLE 7
CLOSING DELIVERIES OF BENTLEY AND MERGER SUB
7.1 Bentley and Merger Sub, as applicable, shall have executed and
delivered, or caused to be executed and delivered, to the Company and the
Stockholders the following documents at the Closing:
(a) The Employment Agreements;
(b) The Joinder to the Securities Purchase Agreement, the
Joinder to the Registration Rights Agreement and the Warrants;
(c) Evidence reasonably satisfactory to the Company and the
Majority Stockholders that (i) Bentley and Merger Sub have each taken all action
necessary to authorize the execution of this Agreement and the Collateral
Documents and the consummation of the transactions contemplated hereby
including, without limitation, the approval of Bentley's and Merger Sub's Board
of Directors of the Merger and the other transactions contemplated by this
Agreement and the Collateral Documents (the "BENTLEY BOARD APPROVALS") and (ii)
all consents, approvals, authorizations and orders required to be obtained by
Bentley and/or Merger Sub from, and all registrations, filings and notices
required to be made by Bentley and/or Merger Sub with or given to, any
Governmental Authority or Person, have been duly obtained, made or given, as the
case may be, and are in full force and effect, unless the failure to obtain,
make or give any such consent, approval, authorization, order, registration,
filing or notice, would not have a material adverse effect on Bentley or Merger
Sub, their assets or businesses or impair the ability of Bentley and/or Merger
Sub to consummate the transactions contemplated by this Agreement and the
Collateral Documents;
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(d) Opinion of Drinker Xxxxxx & Xxxxx LLP, counsel to Bentley
and Merger Sub, dated the Closing Date, in the form attached hereto as Exhibit
4;
(e) A certificate of the Secretary of each of Bentley and
Merger Sub certifying, among other things, the resolutions or written consent
evidencing the Bentley Board Approvals and the Certificate of Incorporation and
By-laws of each of Bentley and Merger Sub;
(f) A certificate of an officer of each of Bentley and Merger
Sub certifying that there is no action, suit or proceeding pending or, to its
knowledge, threatened by or on behalf of any Person, and no Legal Requirement or
policy of any applicable Governmental Authority has been enacted, promulgated or
issued that would: (i) prevent or make illegal the consummation of any of the
transactions contemplated by this Agreement and the Collateral Documents; or
(ii) cause any of the transactions contemplated by this Agreement and the
Collateral Documents to be rescinded following the Closing; and
(g) Such other documents and instruments as the Company and
the Stockholders may reasonably request: (i) to evidence the performance by
Bentley and Merger Sub of, or the compliance by Bentley or Merger Sub with, any
covenant, obligation, condition and agreement to be performed or complied with
by Bentley or Merger Sub under this Agreement and the Collateral Documents; or
(ii) to otherwise facilitate the consummation or performance of any of the
transactions contemplated by this Agreement and the Collateral Documents.
ARTICLE 8
POST-CLOSING COVENANTS
The Parties agree as follows with respect to the period following Closing:
8.1 Employment Matters. From and after the Effective Time, (i) all
continuing employees of the Surviving Corporation and all employees of the
Company engaged directly by Bentley shall be eligible for employee benefits
generally available to employees of Bentley to the same extent as all other
employees of Bentley, and such benefits shall be in lieu of any and all employee
benefits that the Company had been providing to such continuing employees
immediately prior to the Effective Time, and (ii) Bentley shall grant all
continuing employees of the Surviving Corporation credit for service (to the
same extent as service with Bentley or any subsidiary of Bentley is taken into
account with respect to similarly situated employees of Bentley and its
subsidiaries) with the Company for determining benefit levels under such
employee benefits. Nothing contained in this Agreement shall create or imply any
obligation on the part of Bentley, Merger Sub, the Company or the Surviving
Corporation to provide any continuing employment right to any individual.
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8.2 Tax Matters.
(a) Bentley shall cause the Company to prepare and file all
Returns required by law of the Company for all taxable periods ending on or
before the Closing Date (the "PRE-CLOSING PERIODS") and the Stockholders shall
be responsible for, and indemnify Bentley against, the payment of all income,
franchise or similar Taxes of the Company attributable to such periods, whenever
incurred or assessed, in excess of the amounts reflected for Tax liabilities in
the Financial Statements or, in the case of Taxes accruing after the periods
covered by the Financial Statements, to the extent such Taxes were not incurred
in the ordinary course of business.
(b) The Returns for the Pre-Closing Periods shall be made
available to the Stockholders no less than 21 calendar days prior to the filing
thereof with the appropriate Governmental Authority for review by the
Stockholders. From and after the Closing Date, Bentley and the Company, on the
one hand, and the Stockholders, on the other hand, shall make available to the
other, as reasonably requested, all information, records or documents relating
to the Tax liabilities of the Company for all periods ending on or prior to the
Closing Date, and will preserve such information, records or documents until the
expiration of any applicable statute of limitations or extensions thereof.
(c) Bentley shall notify the Stockholders of any pending or
threatened federal, state, local or foreign tax audit, examinations or
assessments which may affect any tax liability for which the Stockholders are
liable. The Stockholders shall have the sole right to conduct any tax audit or
administrative or court proceeding relating to a potential liability for such
taxes and shall bear all costs and expenses of such audit or examination.
Bentley shall not settle any tax claim for which the Stockholders may be liable
without prior written consent of Stockholders which consent shall not be
unreasonably withheld.
(d) Neither Bentley nor the Stockholders shall take any
action, and Bentley shall cause the Company to refrain from taking any action,
that would adversely affect the treatment of the Merger as a reorganization
within the meaning of Section 368(a)(2)(D) of the Code.
8.3 Non-Competition.
(a) As an inducement to Bentley, and recognizing that Bentley
would not have entered into this Agreement and the Collateral Documents without
the Non-Competition Covenants, no Stockholder nor any Affiliate thereof shall,
directly or indirectly, until two (2) years from the Closing Date:
(i) engage, anywhere in the Territory, in developing,
publishing, marketing, selling or supporting software useful in any civil
engineering market (including, without limitation, the transportation, road,
bridge, site and subdivision development, and survey and structures markets)
that is substantially similar to or in competition with any software product
offered by Bentley, the Company, the Surviving Corporation or their Affiliates
(collectively, the "Bentley Entities") or planned to be offered by any Bentley
Entity, or to
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provide anywhere in the Territory any service substantially similar to or in
competition with any service offered by any Bentley Entity;
(ii) be or become a shareholder, director, partner,
owner, officer, employee or agent of, or consultant to, or give financial or
other assistance to, Autodesk, Inc. or Intergraph Corporation or any other
Person engaged in, or considering in engaging in, any such activities other than
the Bentley Entities following the Effective Time; provided, however, that
nothing herein shall prohibit such Stockholder from owning, as a passive
investor, up to one percent (1%) of the outstanding publicly traded stock of any
corporation so engaged;
(iii) seek, in competition with the Bentley Entities, to
procure orders from, purchase any product from or do business with, any customer
or supplier thereof;
(iv) solicit, or contact with a view to the engagement
or employment of, an employee of the Bentley Entities;
(v) seek to contract with or engage (in such a way as to
adversely affect or interfere with the Bentley Entities) any Person who has been
contracted with or engaged to manufacture, assemble, supply or deliver products,
goods, materials or services to the Bentley Entities; or
(vi) engage in or participate in any effort or act to
induce any of the customers, associates, consultants, partners, or employees of
the Bentley Entities to take any action which might be disadvantageous to the
Bentley Entities.
The foregoing covenants are collectively referred to herein as the
"NON-COMPETITION COVENANTS."
(b) Each of the Stockholders agrees that a violation of any of
the Non-Competition Covenants will cause irreparable damage to the Bentley
Entities and that it is and will be impossible to estimate or determine the
damage that will be suffered by the Bentley Entities in the event of a breach by
a Stockholder of any such covenant. Therefore, each Stockholder further agrees
that the Bentley Entities and/or any non-violating Stockholder shall be entitled
to an injunction out of any court of competent jurisdiction, restraining any
further violation of such covenant or covenants by such Stockholder, his or her
employer, employees, partners, agents or other associates, or any of them, such
right to an injunction to be cumulative and in addition to whatever other
remedies the Bentley Entities may have.
(c) The invalidity of any one or more of the provisions
contained in this Section 8.3 shall not affect the enforceability of the
remaining portions of this Section. If one or more of the provisions contained
in this Section shall be invalid, this Section shall be construed as if such
provision had not been inserted, and if such invalidity should be caused by the
length of any period of time or the size of any area set forth in this Section,
such period of time or such area, or both, shall, without need of further action
by any party hereto, be deemed to be reduced to a period or area that will cure
such invalidity.
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(d) The period set forth in Section 8.3(a) shall be extended
by the duration of any violation of such provision by a Stockholder with respect
to such violating Stockholder.
ARTICLE 9
INDEMNIFICATION
9.1 Survival of Representations and Warranties. The representations and
warranties contained in this Agreement shall survive the Effective Time. Neither
the period of survival nor the liability of a Party with respect to such Party's
representations and warranties shall be reduced by any investigation made at any
time by or on behalf of another Party. The covenants and agreements contained in
this Agreement or any certificate or other writing required to be delivered
pursuant hereto shall survive the Effective Time to the extent specifically
contemplated by the terms thereof.
9.2 Indemnification by Stockholders and Company. Bentley and its
Affiliates (including, after the Effective Time, the Surviving Corporation),
officers, directors, stockholders, employees, agents, successors and assigns
(collectively, the "BENTLEY INDEMNIFIED PARTIES"), shall be indemnified and held
harmless by the Company and the Stockholders, jointly and severally, for any and
all liabilities, losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including, without limitation, reasonable attorneys'
and consultants' fees and expenses and other costs of defending, investigating
or settling claims) actually suffered or incurred by them (including, without
limitation, in connection with any action brought or otherwise initiated by any
of them) (hereinafter, "DAMAGES"), arising out of or resulting from:
(a) any inaccuracy in or the breach of any representation or
warranty made by the Company or the Stockholders in this Agreement;
(b) the breach or non-fulfillment of any covenant or agreement
made by the Company or the Stockholders in this Agreement;
(c) any liability or other obligation of the Company existing
on the Closing Date and not disclosed in the Financial Statements, other than
current liabilities incurred in the ordinary course of business consistent with
past practice;
(d) any infringement of any trademark, copyright, patent or
other proprietary or intellectual property right of any Person; and
(e) all liability of the Company or the Stockholders for Taxes
that are due or accrue before the Closing Date.
9.3 Indemnification by Bentley. The Stockholders and their respective
Affiliates (collectively, the "STOCKHOLDER INDEMNIFIED PARTIES"), shall be
indemnified and held harmless by Bentley for any and all Damages, arising out of
or resulting from:
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(a) any inaccuracy in or breach of any representation or
warranty made by Bentley or Merger Sub in this Agreement or in the Securities
Purchase Agreement with respect to the sale and issuance of the Bentley
Securities; or
(b) the breach or non-fulfillment of any covenant or agreement
made by Bentley or Merger Sub in this Agreement.
9.4 Stockholders' Representative. The Stockholders hereby appoint Xxxxxxx
Xxxxxx (such person and any successor or successors being the "STOCKHOLDERS'
REPRESENTATIVE"), and Xxxxxxx Xxxxxx shall act as, the representative of the
Stockholders, with full authority to act on behalf of the Stockholders and to
take any and all actions required or permitted to be taken by the Stockholders'
Representative under this Agreement, with respect to any claims (including the
settlement thereof) made by Bentley or the Stockholders for indemnification
pursuant to this Article 9. The Stockholders shall be bound by all actions taken
by the Stockholders' Representative in his capacity thereof. The Stockholders'
Representative shall promptly, and in any event within five Business Days,
provide written notice to the Stockholders of any action taken on their behalf
by the Stockholders' Representative pursuant to the authority delegated to the
Stockholders' Representative under this Section 9.4. The Stockholders'
Representative shall at all times act in his capacity as Stockholders'
Representative in a manner that the Stockholders' Representative believes to be
in the best interest of the Stockholders. The Stockholders' Representative shall
not be liable to any person for any error of judgment, or any action taken,
suffered or omitted to be taken, under this Agreement, except in the case of his
gross negligence, bad faith or willful misconduct. The Stockholders'
Representative may consult with legal counsel, independent public accountants
and other experts selected by him and shall not be liable for any action taken
or omitted to be taken in good faith by him in accordance with the advice of
such counsel, accountants or experts. The Stockholders' Representative shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement. As to any matters
not expressly provided for in this Agreement, the Stockholders' Representative
shall not be required to exercise any discretion or take any action.
Notwithstanding anything to the contrary herein, (a) the Stockholders'
Representative is not authorized to, and shall not, accept on behalf of any
Stockholder any Merger Consideration to which such Stockholder is entitled under
this Agreement and (b) the Stockholders' Representative shall not, in any
manner, exercise, or seek to exercise, any voting power whatsoever with respect
to shares of capital stock of the Company or Bentley now or hereafter owned of
record or beneficially by any Stockholder unless the Stockholders'
Representative is expressly authorized to do so in a separate writing signed by
such Stockholder. In all matters relating to this Article 9, the Stockholders'
Representative shall be the only party entitled to assert the rights of the
Stockholders, and the Stockholders' Representative shall perform all of the
obligations of the Stockholders hereunder. Bentley shall be entitled to rely on
all statements, representations and decisions of the Stockholders'
Representative.
9.5 Matters Involving Third Parties.
(a) If any third party shall notify either Bentley, the
Surviving Corporation or the Stockholders (the "INDEMNIFIED PARTY") with respect
to any matter (a "THIRD PARTY CLAIM") that may give rise to a claim for
indemnification against the other (the
- 29 -
"INDEMNIFYING PARTY") under this Article, then the Indemnified Party shall
promptly notify the Indemnifying Party thereof in writing; provided, however,
that no delay on the part of the Indemnified Party in notifying any Indemnifying
Party shall relieve the Indemnifying Party from any obligation hereunder unless
(and then solely to the extent) the Indemnifying Party thereby is prejudiced.
(b) Any Indemnifying Party shall have the right to defend the
Indemnified Party against the Third Party Claim with counsel of the Indemnifying
Party's choice reasonably satisfactory to the Indemnified Party so long as: (i)
the Indemnifying Party notifies the Indemnified Party in writing (within 30 days
after the Indemnified Party has given notice of the Third Party Claim) that the
Indemnifying Party will indemnify the Indemnified Party from and against the
entirety of any adverse consequences the Indemnified Party may suffer resulting
from, arising out of, relating to, in the nature of or caused by the Third Party
Claim; (ii) the Indemnifying Party provides the Indemnified Party with evidence
acceptable to the Indemnified Party that the Indemnifying Party will have the
financial resources to defend against the Third Party Claim and fulfill its
indemnification obligations hereunder; (iii) settlement of, or an adverse
judgment with respect to, the Third Party Claim is not, in the good faith
judgment of the Indemnified Party, likely to establish a precedential custom or
practice adverse to the continuing business interests of the Indemnified Party;
and (iv) the Indemnifying Party conducts the defense of the Third Party Claim
actively and diligently.
(c) So long as the Indemnifying Party is conducting the
defense of the Third Party Claim in accordance with subsection (b) above: (i)
the Indemnified Party may retain separate co-counsel at its sole cost and
expense and participate in the defense of the Third Party Claim; (ii) the
Indemnified Party shall not consent to the entry of any judgment or enter into
any settlement with respect to the Third Party Claim without the prior written
consent of the Indemnifying Party; and (iii) the Indemnifying Party shall not
consent to the entry of any judgment or enter into any settlement with respect
to the Third Party Claim without the prior written consent of the Indemnified
Party.
(d) If any of the conditions in subsection (c) above is not or
no longer satisfied, however: (i) the Indemnified Party may defend against, and
consent to the entry of any judgment or enter into any settlement with respect
to, the Third Party Claim in any manner it reasonably may deem appropriate (and
the Indemnified Party need not consult with, or obtain any consent from, any
Indemnifying Party in connection therewith); (ii) the Indemnifying Party shall
reimburse the Indemnified Party promptly and periodically for the costs of
defending against the Third Party Claim (including reasonable attorneys' fees
and expenses); and (iii) the Indemnifying Party shall remain responsible for any
adverse consequences the Indemnified Party may suffer resulting from, arising
out of, relating to, in the nature of or caused by the Third Party Claim to the
fullest extent provided in this Article 9.
9.6 Release. If the Closing occurs, the Stockholders shall have no rights,
hereunder or otherwise, to indemnification or contribution from the Company with
respect to any matter based on events or circumstances occurring or arising
prior to the Closing, including, without limitation, any inaccuracy in or breach
of any representation or warranty of Company made in or pursuant to this
Agreement, or any breach or non-fulfillment of any covenant or obligation of
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Company contained in this Agreement. Each Stockholder, on behalf of himself or
herself and each of his or her heirs, successors and assigns (the "RELATED
PERSONS"), hereby unconditionally remises, releases and forever discharges
Company, the Surviving Corporation, Bentley and Merger Sub and each of their
respective individual, joint or mutual, past, present and future officers,
directors, employees, agents, Affiliates, stockholders, controlling persons,
parent corporations, subsidiaries, successors and assigns (individually, a
"Releasee" and collectively, "RELEASEES") from any and all manner of actions,
causes of action, suits, claims, counterclaims, demands. proceedings, orders,
obligations, contracts, agreements, promises, covenants, defenses, debts and
liabilities whatsoever, whether known or unknown, suspected or unsuspected, both
at law and in equity, which either such Stockholder or any of his or her
respective Related Persons now has, have ever had or may hereafter have against
the respective Releasees arising contemporaneously with or prior to the Closing
or on account of or arising out of any matter, cause or event occurring
contemporaneously with or prior to the Closing, including, but not limited to,
any rights under federal or state securities laws and any rights to
indemnification or reimbursement from Company, whether pursuant to its
organizational documents, contract or otherwise and whether or not relating to
claims pending on, or asserted after, the Closing Date; provided, however, that
nothing contained herein shall operate to release any obligations of the
Releasees specifically arising under this Agreement or any Collateral Documents.
Each Stockholder hereby irrevocably covenants to refrain from, directly or
indirectly, asserting any claim or demand, or commencing, instituting or causing
to be commenced, any proceeding of any kind against any Releasee, based upon any
matter purported to be released by this Section 9.6.
ARTICLE 10
MISCELLANEOUS
10.1 Parties Obligated and Benefited. This Agreement shall be binding upon
the Parties and their respective assigns and successors in interest and shall
inure solely to the benefit of the Parties and their respective assigns and
successors in interest, and no other Person shall be entitled to any of the
benefits conferred by this Agreement. Without the prior written consent of the
other Party, no Party may assign this Agreement or the Collateral Documents or
any of its rights or interests or delegate any of its duties under this
Agreements or the Collateral Documents; provided, however, that Bentley may
assign this Agreement and the Collateral Documents or any of its rights or
interests or delegate any of its duties hereunder or thereunder to an Affiliate;
provided, however, that any such assignment or delegation shall not release
Bentley from any of its obligations hereunder or thereunder.
10.2 Expenses. Bentley shall pay for all costs and expenses incurred by it
and Merger Sub in connection with this Agreement, the Merger and the other
transactions contemplated by this Agreement (including, without limitation, the
fees and expenses of financial advisors, accountants and legal counsel). The
Company shall pay (a) the reasonable fees and expenses of its financial
advisors, accountants and legal counsel (collectively, "PROFESSIONAL FEES"),
which legal counsel may also represent the Stockholders as a group, incurred by
the Company in connection with this Agreement, the Merger and the other
transactions contemplated by this
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Agreement (including, without limitation, the issuance of the Bentley
Securities), up to a maximum of $70,000, and (b) all costs and expenses other
than the Professional Fees incurred by it in connection with this Agreement, the
Merger and the other transactions contemplated by this Agreement. Any and all
Professional Fees incurred by the Company in excess of $70,000 shall be borne by
the Stockholders personally (and not by the Company). The limitations set forth
in this Section 10.2 shall supercede the provisions of Section 6.1 of the
Securities Purchase Agreement. Except as specifically noted in this Section
10.2, the Stockholders shall pay for all costs and expenses incurred by them in
connection with this Agreement, the Merger and the other transactions
contemplated by this Agreement (including, without limitation, the fees and
expenses of financial advisors, accountants and legal counsel).
10.3 Notices. Any notices and other communications required or permitted
hereunder shall be in writing and shall be effective upon delivery by hand or
upon receipt if sent by certified or registered mail (postage prepaid and return
receipt requested) or by a nationally recognized overnight courier service
(appropriately marked for overnight delivery) or upon transmission if sent by
facsimile (with request for immediate confirmation of receipt in a manner
customary for communications of such respective type and with physical delivery
of the communication being made by one or the other means specified in this
Section as promptly as practicable thereafter). Notices shall be addressed as
follows:
(a) If to Bentley, Merger Sub or the Surviving Corporation,
to:
Bentley Systems, Incorporated
000 Xxxxxxxx Xxxxx
Xxxxx, XX 00000
Attn: Xxxxx X. Nation, Esquire,
Senior Vice President and General Counsel
Telecopier: 000-000-0000
(b) If to the Company before the Closing Date, to:
Xxxxxxx Xxxxxx
c/o Geopak Corporation
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Attn: Xxxxxxxxx Xxxxxx, President
Telecopier: 000-000-0000
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with a copy to:
Xxxxxx Xxxxxxxx, P.A.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Esquire
Telecopier: (000) 000-0000
(c) If to the Stockholders before or after the Closing Date,
to:
Xxxxxxx Xxxxxx
c/o Geopak Corporation
0000 X.X. 000xx Xxxxxx
Xxxxx Xxxxx Xxxxx, XX 00000
Telecopier: 000-000-0000
With a copy to:
Xxxxxx Xxxxxxxx, P.A.
00000 Xxxxxxxx Xxxxxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxx, Esquire
Telecopier: (000) 000-0000
Any Party may change the address to which notices are required to be sent by
giving notice of such change in the manner provided in this Section.
10.4 Headings. The Article and Section headings of this Agreement are for
convenience only and shall not constitute a part of this Agreement or in any way
affect the meaning or interpretation thereof.
10.5 Choice of Law; Exclusive Jurisdiction.
(a) This Agreement and the rights of the Parties under it
shall be governed by and construed in all respects in accordance with the laws
of the State of Delaware, without giving effect to any choice of law provision
or rule (whether of the State of Delaware or any other jurisdiction that would
cause the application of the laws of any jurisdiction other than the State of
Delaware).
(b) Each party hereto irrevocably and unconditionally consents
and submits to the non-exclusive jurisdiction of the courts of the State of
Delaware and of the United States of America located in the State of Delaware
for any actions, suits or proceedings arising out of or relating to this
Agreement and the transactions contemplated hereby, and further agrees that
service of any process, summons, notice or document by U.S. registered or
certified mail to
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the Company or Bentley, as the case may be, at the addresses set forth in
Section 10.3 hereof, shall be effective service of process for any action, suit
or proceedings brought against such party in such court. Each party hereto
hereby irrevocably and unconditionally waives any objection to the laying of
venue of any action, suit or proceeding arising out of this Agreement or the
transactions contemplated hereby, in the courts of the State of Delaware located
in Wilmington, Delaware or the United States of America located in Wilmington,
Delaware, and hereby further irrevocably and unconditionally waives and agrees
not to plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in any inconvenient forum.
10.6 Rights Cumulative. All rights and remedies of each of the Parties
under this Agreement shall be cumulative, and the exercise of one or more rights
or remedies shall not preclude the exercise of any other right or remedy
available under this Agreement or applicable law.
10.7 Further Actions. The Parties shall execute and deliver to each other,
from time to time at or after Closing, for no additional consideration and at no
additional cost to the requesting party, such further assignments, certificates,
instruments, records, or other documents, assurances or things as may be
reasonably necessary to give full effect to this Agreement and to allow each
party fully to enjoy and exercise the rights accorded and acquired by it under
this Agreement.
10.8 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
10.9 Entire Agreement. This Agreement (including the Exhibits, Schedules
and any other documents, instruments and certificates referred to herein, which
are incorporated in and constitute a part of this Agreement) contains the entire
agreement of the Parties and supersedes all prior oral or written agreements,
understandings and representations to the extent that they relate in any way to
the subject matter hereof, including the Letter of Intent.
10.10 Amendments and Waivers. No amendment of any provision of this
Agreement shall be valid unless the same shall be in writing and signed by the
Parties. No waiver by any party of any default, misrepresentation or breach of
warranty or covenant hereunder shall be valid unless the same shall be in
writing and signed by the Person against whom its enforcement is sought, and no
such waiver whether intentional or not, shall be deemed to extend to any prior
or subsequent default, misrepresentation or breach of warranty or covenant
hereunder or affect in any way any rights arising by virtue of any prior or
subsequent such occurrence.
10.11 Construction. The Parties have participated jointly in the
negotiation and drafting of this Agreement. If an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as if drafted
jointly by the parties and no presumption or burden of proof shall arise
favoring or disfavoring any party by virtue of the authorship of any of the
provisions of this Agreement. Any reference to any federal, state, local, or
foreign statute or law shall be deemed also to refer to all rules and
regulations promulgated thereunder, unless the context requires
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otherwise. The word "including" shall mean "including without limitation." The
Parties intend that each representation, warranty, covenant and condition
contained herein shall have independent significance. If any Party has breached
any representation, warranty or covenant contained herein in any respect, the
fact that there exists another representation, warranty or covenant relating to
the same subject matter (regardless of the relative levels of specificity) which
the Party has not breached shall not detract from or mitigate the fact that the
party is in breach of the first representation, warranty or covenant.
10.12 Disclosure. The terms of this Agreement and the Collateral Documents
are confidential and no Party shall disclose to any Person such existence or
terms without the prior written consent of the other Parties, except that (i)
Bentley may make such disclosure without the consent of any other Party at any
time following the Closing, (ii) any Party may make such disclosure as is
required (in the opinion of its counsel) by applicable law, and (iii) any Party
may make such disclosure to its Representatives and lenders who agree to keep
the terms of this Agreement and the Collateral Documents strictly confidential.
Each of the Parties will be responsible for any damages resulting from the
unauthorized disclosure of the existence or terms of this Agreement or the
Collateral Documents by it or its respective Representatives.
[signature page follows]
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IN WITNESS WHEREOF, the Parties hereto have duly executed this
Agreement as of the day and year first above written.
BENTLEY SYSTEMS, INCORPORATED
By: /s/ Xxxxx X. Nation
--------------------------------
Xxxxx X. Nation,
Senior Vice President
GP ACQUISITION SUB, INC.
By: /s/ Xxxxx X. Nation
--------------------------------
Xxxxx X. Nation,
Senior Vice President
GEOPAK CORPORATION
By: /s/ Xxxxxxxxx Xxxxxx
--------------------------------
Xxxxxxxxx Xxxxxx,
President
STOCKHOLDERS:
/s/ Xxxxxxx Xxxxxx
-----------------------------------
Xxxxxxx Xxxxxx
/s/ Xxxxxxxxx Xxxxxx
-----------------------------------
Xxxxxxxxx Xxxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------
Xxxxxxx X. Xxxxxx
/s/ Xxxxxx Xxxxxxxxxx
-----------------------------------
Xxxxxx Xxxxxxxxxx
/s/ Xxxxxxx Xxxxx
-----------------------------------
Xxxxxxx Xxxxx
/s/ Xxxxxx Xxxxxxx
-----------------------------------
Xxxxxx Xxxxxxx
[Signature page 1 of 1 to Merger Agreement]
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Exhibit List
Exhibit 1: DGCL Certificate of Merger
Exhibit 2: FBCA Articles of Merger
Exhibit 3: Opinion of Company's Counsel
SCHEDULE A: Addressees
SCHEDULE B: Authorized Capital Stock of the Company
Exhibit A: Material Agreements
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