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EXHIBIT 2.2
MERGER AGREEMENT
AMONG
UNITIVE CORP.
AND
UNITIVE ACQUISITION, INC.
AND
SUPERIOR CONSULTANT HOLDINGS CORPORATION
______________ __ , 1996
This Agreement is entered into as of ______________ ___, 1996, by and
among SUPERIOR CONSULTANT HOLDINGS CORPORATION, a Delaware corporation
("ACQUIROR"), UNITIVE ACQUISITION, INC. a Michigan corporation and a wholly-
owned Subsidiary of the Acquiror ("TRANSITORY SUBSIDIARY"), and UNITIVE
CORP., a Michigan corporation ("TARGET".) Acquiror, Transitory Subsidiary,
Transitory Subsidiary, and Target are referred to collectively herein as the
"PARTIES".
This Agreement contemplates a transaction in which the Acquiror will
acquire all of the outstanding capital stock of Target through a reverse
subsidiary merger of Transitory Subsidiary with and into Target. The
Shareholders of Target will receive capital stock of Acquiror in exchange for
their capital stock in Target. It is intended that the merger qualify as a
tax-free reorganization pursuant to Code Sections 368(a)(1)(A) and 368(a)(2)(E).
Now, therefore, in consideration of the premises and the mutual
promises herein made, and in consideration of the representations, warranties,
and covenants herein contained, the Parties agree as follows.
1. Definitions.
"ACQUIROR" has the meaning set forth in the preface above.
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"CERTIFICATE OF MERGER" has the meaning set forth in Section 2(c) below.
"CLOSING" has the meaning set forth in Section 2(b) below.
"CLOSING DATE" has the meaning set forth in Section 2(b) below.
"MICHIGAN BUSINESS CORPORATION ACT" means the Michigan Business
Corporation Act, as amended.
"MERGER" has the meaning set forth in Section 2(a)(i) below.
"MERGER EFFECTIVE TIME" has the meaning set forth in Section 2(d)(i)
below.
"PARTY" has the meaning set forth in the preface above.
"PERSON" means an individual, a partnership, a limited liability
company, a corporation, an association, a joint stock company, a trust, a joint
venture, an unincorporated organization, or a governmental entity (or any
department, agency, or political subdivision thereof).
"SUBSIDIARY" means any corporation with respect to which a specified
Person (or a Subsidiary thereof) owns a majority of the common stock or has the
power to vote or direct the voting of sufficient securities to elect a majority
of the directors.
"TARGET" has the meaning set forth in the preface above.
"TARGET SHARE" means any share of the Common Stock, no par value per
share, of Target.
"TARGET SHAREHOLDER" means any Person who or which holds any Target
Shares.
"TRANSITORY SUBSIDIARY" has the meaning set forth in the preface above.
2. Basic Transaction.
(a) The Merger. On and subject to the terms and conditions
of this Agreement, Transitory Subsidiary will merge with and into Target
("MERGER") at the Merger Effective Time. Target shall be the corporation
surviving the Merger.
(b) The Closing. The closing of the transactions
contemplated by this Agreement (the "CLOSING") shall take place at the
offices of Acquiror in Southfield, Michigan, commencing at 9:00 a.m.
local time on the second business day subsequent to the execution of a
definitive underwriting agreement with respect to an initial public
offering of shares of the Acquiror (the "Underwriting
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Agreement") or such other date as the Parties may mutually determine
(the "CLOSING DATE").
(c) Actions at the Closing. At the Closing, Target and
Transitory Subsidiary will file with the Secretary of State of the State
of Michigan a Certificate of Merger in the form attached hereto as
Exhibit A.
(d) Effect of Merger.
(i) General. The Merger shall become effective at the
time Certificate of Merger is filed with the Secretary of State
of the State of Michigan (the "MERGER EFFECTIVE TIME"). The
Merger shall have the effect set forth in the Michigan Business
Corporation Act. The surviving corporation of the Merger may,
at any time after the Merger Effective Time, take any action
(including executing and delivering any document) in the name
and on behalf of either Target or Transitory Subsidiary in order
to carry out and effectuate the transactions contemplated by
this Agreement.
(ii) Conversion of Shares. At and as of the Merger
Effective Time, each Target Share shall be converted into the
right to receive 5.41417544 Acquiror Shares. After the Effective
Time, no Target Share shall be deemed to be outstanding or to
have any rights other than those set forth above in this Section
2(d)(ii) and in 2(d)(vii).
(iii) Conversion of Capital Stock of the Transitory
Subsidiary. At and as of the Merger Effective Time, each share
of Common Stock, no par value, of Transitory Subsidiary shall be
converted into one share of Common Stock, no par value per
share, of the surviving corporation.
(iv) Articles of Incorporation. The Articles of
Incorporation of Target Subsidiary in effect at and as of
the Merger Effective Time will remain in effect as the Articles
of Incorporation of the surviving corporation of Merger without
any modification or amendment in Merger except that the name of
the surviving corporation shall be changed to "Unitive
Corporation."
(v) Bylaws. The Bylaws of Target in effect at and as of
the Merger Effective Time will remain the Bylaws of the
surviving corporation of Merger without any modification or
amendment in Merger.
(vi) Directors and Officers. The directors and officers
of Target in office at and as of the Merger Effective Time will
remain the directors and officers of the surviving corporation
of Merger (retaining their respective positions and terms of
office).
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(vii) Exchange of Certificates. At the Closing, each
Target Shareholder shall surrender to Acquiror for exchange a
certificate or certificates, duly endorsed in blank or
accompanied by duly executed stock powers, representing all of
the Target Shares held by the Target Shareholder. In exchange
therefor, Acquiror shall issue to the Target Shareholder a
certificate or certificates representing the shares of Acquiror
Shares to be issued pursuant to Section 2(d)(ii). Surrendered
certificates shall forthwith be canceled. Acquiror shall not be
obligated to deliver the Acquiror Shares to which the Target
Shareholder is entitled as a result of Merger until such holder
surrenders his certificate or certificates representing shares
of Target Shares for exchange as provided in this Section
2(d)(vii). Until so surrendered and exchanged, each such
certificate shall represent solely the right to receive the
certificate representing Acquiror Shares to be issued pursuant
to Section 2(d)(ii) into which the shares it theretofore
represented shall have been converted pursuant to Section
2(d)(ii), and Acquiror shall not be required to issue the
Acquiror Shares to which the Target Shareholder otherwise would
be entitled; provided that procedures allowing for payment
against lost or destroyed certificates upon receipt of customary
and appropriate certifications and indemnities shall be
provided.
(viii) Rights of the Target Shareholders. From and
after the Merger Effective Time, the Target Shareholders shall
have no rights with respect to his shares of Target Shares other
than the right to surrender the certificate or certificates
representing such shares for exchange pursuant to Section
2(d)(vii)
3. Termination of Agreement. This Agreement shall terminate if the
Underwriting Agreement is not executed on or before December 31, 1996.
4. Miscellaneous.
(a) No Third-Party Beneficiaries. This Agreement shall not confer
any rights or remedies upon any person other than the Parties and their
respective successors and permitted assigns; provided, however, that the
provisions in Section 2 above concerning delivery of the merger consideration
are intended for the benefit of Target's shareholders.
(b) Entire Agreement. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the Parties and
supersedes any prior understandings, agreements, or representations by or among
the Parties, written or oral, to the extent they related in any way to the
subject matter hereof.
(c) Succession and Assignment. This Agreement shall be binding upon
and inure to the benefit of the Parties named herein and their respective
successors and
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permitted assigns. No Party may assign either this Agreement or any of its
rights, interests, or obligations hereunder without the prior written approval
of the other Parties.
(d) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
(e) Headings. The section headings contained in this Agreement are
inserted for convenience only and shall not affect in any way the meaning or
interpretation of this Agreement.
(f) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE DOMESTIC LAWS OF THE STATE OF MICHIGAN WITHOUT GIVING
EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF MICHIGAN OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTION OTHER THAN THE STATE OF MICHIGAN.
(g) Amendments and Waivers. The Parties may mutually amend any
provision of this Agreement at any time prior to the Effective Time with the
prior authorization of their respective boards of directors; provided, however,
that any amendment effected subsequent to shareholder approval will be subject
to the restrictions contained in the Michigan Business Corporation Act. No
amendment of any provision of this Agreement shall be valid unless the same
shall be in writing and signed by all of the Parties. No waiver by any Party of
any default, misrepresentation, or breach of warranty or covenant hereunder,
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.
(h) Severability. Any term or provision of this Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction.
(i) Construction. 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 otherwise requires. The
word "including" shall mean including without limitation.
(j) Incorporation of Exhibits and Schedules. The Exhibits and
Schedules identified in this Agreement are incorporated herein by reference and
made a part hereof.
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IN WITNESS WHEREOF, the Parties hereto have executed this Merger
Agreement as of the date first above written.
SUPERIOR CONSULTANT HOLDINGS UNITIVE ACQUISITION, INC., a
CORPORATION, a Delaware corporation Michigan corporation
By:________________________________ By:________________________________
Its:_______________________________ Its:_______________________________
UNITIVE CORP., a
Michigan corporation
By:________________________________
Its:_______________________________
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