Exhibit 2.1
AGREEMENT AND PLAN OF REORGANIZATION
BY AND AMONG
XXXXXX INDUSTRIES, INC.
METRAPLEX ACQUISITION CORP.
AND
METRAPLEX CORPORATION
Dated as of July 8, 1997
TABLE OF CONTENTS
Page
ARTICLE I
THE MERGER. . . . . . . . . . . . . . . . . . . . . . . . . -1-
1.1 The Merger . . . . . . . . . . . . . . . . . . . . . . -1-
1.2 Effective Time; Closing. . . . . . . . . . . . . . . . -1-
1.3 Effect of the Merger . . . . . . . . . . . . . . . . . -2-
1.4 Certificate of Incorporation; Bylaws . . . . . . . . . -2-
1.5 Directors and Officers . . . . . . . . . . . . . . . . -2-
1.6 Effect on Capital Stock. . . . . . . . . . . . . . . . -2-
1.7 Dissenting Shares. . . . . . . . . . . . . . . . . . . -3-
1.8 Surrender of Certificates. . . . . . . . . . . . . . . -4-
1.9 No Further Ownership Rights in Metraplex Capital Stock -5-
1.10 Lost, Stolen or Destroyed Certificates . . . . . . . . -6-
1.11 Tax and Accounting Consequences. . . . . . . . . . . . -6-
1.12 Taking of Necessary Action; Further Action . . . . . . -6-
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF METRAPLEX. . . . . . . . -6-
2.1 Organization of Metraplex. . . . . . . . . . . . . . . -6-
2.2 Metraplex Capital Structure. . . . . . . . . . . . . . -7-
2.3 Obligations With Respect to Capital Stock. . . . . . . -7-
2.4 Authority. . . . . . . . . . . . . . . . . . . . . . . -7-
2.5 Section 203 of the Delaware General Corporation Law
Not Applicable. . . . . . . . . . . . . . . . . . . . -8-
2.6 Metraplex Financial Statements . . . . . . . . . . . . -9-
2.7 Absence of Certain Changes or Events . . . . . . . . . -9-
2.8 Taxes. . . . . . . . . . . . . . . . . . . . . . . . . -9-
2.9 Intellectual Property. . . . . . . . . . . . . . . . .-10-
2.10 Compliance; Permits; Restrictions. . . . . . . . . . .-10-
2.11 Litigation . . . . . . . . . . . . . . . . . . . . . .-11-
2.12 Brokers' and Finders' Fees . . . . . . . . . . . . . .-11-
2.13 Employee Benefit Plans . . . . . . . . . . . . . . . .-11-
2.14 Absence of Liens and Encumbrances. . . . . . . . . . .-12-
2.15 Environmental Matters. . . . . . . . . . . . . . . . .-12-
2.16 Labor Matters. . . . . . . . . . . . . . . . . . . . .-13-
2.17 Agreements, Contracts and Commitments. . . . . . . . .-13-
2.18 Change of Control Payments . . . . . . . . . . . . . .-14-
2.19 Board Approval . . . . . . . . . . . . . . . . . . . .-14-
2.20 Minute Books . . . . . . . . . . . . . . . . . . . . .-14-
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Xxxxxx AND MERGER SUB . .-15-
3.1 Organization of Xxxxxx . . . . . . . . . . . . . . . .-15-
3.2 Xxxxxx Capital Structure . . . . . . . . . . . . . . .-15-
3.3 Obligations With Respect to Capital Stock. . . . . . .-16-
3.4 Authority. . . . . . . . . . . . . . . . . . . . . . .-16-
3.5 SEC Filings; Xxxxxx Financial Statements . . . . . . .-17-
3.6 Absence of Certain Changes or Events . . . . . . . . .-18-
3.7 Taxes. . . . . . . . . . . . . . . . . . . . . . . . .-18-
3.8 Intellectual Property. . . . . . . . . . . . . . . . .-18-
3.9 Compliance; Permits; Restrictions. . . . . . . . . . .-19-
3.10 Litigation . . . . . . . . . . . . . . . . . . . . . .-19-
3.11 Brokers' and Finders' Fees . . . . . . . . . . . . . .-20-
3.12 Employee Benefit Plans . . . . . . . . . . . . . . . .-20-
3.13 Absence of Liens and Encumbrances. . . . . . . . . . .-20-
3.14 Environmental Matters. . . . . . . . . . . . . . . . .-21-
3.15 Labor Matters. . . . . . . . . . . . . . . . . . . . .-21-
3.16 Agreements, Contracts and Commitments. . . . . . . . .-21-
3.17 Change of Control Payments . . . . . . . . . . . . . .-23-
3.18 Minute Books . . . . . . . . . . . . . . . . . . . . .-23-
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME . . . . . . . . . . . .-23-
4.1 Conduct of Business. . . . . . . . . . . . . . . . . .-23-
ARTICLE V
ADDITIONAL AGREEMENTS. . .. . . . . . . . . . . . . . . . .-25-
5.1 Registration Rights. . . . . . . . . . . . . . . . . .-25-
5.2 Meeting of Metraplex Stockholders. . . . . . . . . . .-26-
5.3 Access to Information; Confidentiality . . . . . . . .-26-
5.4 No Solicitation by Metraplex . . . . . . . . . . . . .-26-
5.5 Public Disclosure. . . . . . . . . . . . . . . . . . .-27-
5.6 Legal Requirements . . . . . . . . . . . . . . . . . .-27-
5.7 Third Party Consents . . . . . . . . . . . . . . . . .-28-
5.8 FIRPTA . . . . . . . . . . . . . . . . . . . . . . . .-28-
5.9 Notification of Certain Matters. . . . . . . . . . . .-28-
5.10 Best Efforts and Further Assurances. . . . . . . . . .-28-
5.11 Stock Options; Employee Stock Purchase Plan. . . . . .-28-
5.12 Tax-Free Reorganization. . . . . . . . . . . . . . . .-29-
5.13 Metraplex Employee Benefits. . . . . . . . . . . . . .-29-
5.14 Repurchase of Xxxxxx Common Stock. . . . . . . . . . .-29-
5.15 Employment Agreement . . . . . . . . . . . . . . . . .-30-
ARTICLE VI
CONDITIONS TO THE MERGER . . . . . . . . . . . . . . . . .-30-
6.1 Conditions to Obligations of Each Party to Effect
the Merger . . . . . . . . . . . . . . . . . . . . . -30-
6.2 Additional Conditions to Obligations of Metraplex. . .-30-
6.3 Additional Conditions to the Obligations of Xxxxxx
and Merger Sub . . . . . . . . . . . . . . . . . . . -31-
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER. . . .. . . . . . . . . .-32-
7.1 Termination. . . . . . . . . . . . . . . . . . . . . .-32-
7.2 Notice of Termination; Effect of Termination . . . . .-33-
7.3 Fees and Expenses. . . . . . . . . . . . . . . . . . .-34-
7.4 Amendment. . . . . . . . . . . . . . . . . . . . . . .-34-
7.5 Extension; Waiver. . . . . . . . . . . . . . . . . . .-34-
ARTICLE VIII
GENERAL PROVISIONS . . . . . . . . . . . . . . . . . . . .-35-
8.1 Non-Survival of Representations and Warranties . . . .-35-
8.2 Notices. . . . . . . . . . . . . . . . . . . . . . . .-35-
8.3 Interpretation; Knowledge. . . . . . . . . . . . . . .-36-
8.4 Counterparts . . . . . . . . . . . . . . . . . . . . .-36-
8.5 Entire Agreement . . . . . . . . . . . . . . . . . . .-36-
8.6 Severability . . . . . . . . . . . . . . . . . . . . .-36-
8.7 Other Remedies; Specific Performance . . . . . . . . .-36-
8.8 Governing Law. . . . . . . . . . . . . . . . . . . . .-37-
8.9 Rules of Construction. . . . . . . . . . . . . . . . .-37-
8.10 Assignment . . . . . . . . . . . . . . . . . . . . . .-37-
INDEX OF EXHIBITS
-----------------
Exhibit A Registration Rights Agreement
Exhibit B Employment Agreement
AGREEMENT AND PLAN OF REORGANIZATION
This AGREEMENT AND PLAN OF REORGANIZATION (the "Agreement") is made and
entered into as of July 8, 1997 among Xxxxxx Industries, Inc., a Delaware
corporation ("Xxxxxx"), Metraplex Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Xxxxxx ("Merger Sub"), and
Metraplex Corporation, a Delaware corporation ("Metraplex").
RECITALS
--------
A. Upon the terms and subject to the conditions of this Agreement and in
accordance with the Delaware General Corporation Law ("Delaware Law"), Xxxxxx
and Metraplex will enter into a business combination transaction pursuant to
which Merger Sub will merge with and into Metraplex (the "Merger").
X. Xxxxxx and Merger Sub, on the one hand, and Metraplex on the other hand,
desire to make certain representations and warranties and other agreements in
connection with the Merger.
C. The parties intend, by executing this Agreement, to adopt a plan of
reorganization within the meaning of Section 368 of the Internal Revenue Code of
1986, as amended (the "Code").
NOW, THEREFORE, in consideration of the covenants, promises and
representations set forth herein, and for other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of Delaware Law, Merger Sub shall be merged with and into
Metraplex, the separate corporate existence of Merger Sub shall cease and
Metraplex shall continue as the surviving corporation. Metraplex as the
surviving corporation after the Merger is hereinafter sometimes referred to as
the "Surviving Corporation."
1.2 Effective Time; Closing. Subject to the provisions of this Agreement,
the parties hereto shall cause the Merger to be consummated by filing a
Certificate of Merger (the "Certificate of Merger") with the Secretary of State
of the State of Delaware in accordance with the relevant provisions of Delaware
Law (the time of such filing (or such later time as may be agreed in writing by
the parties and specified in the Certificate of Merger) being the "Effective
Time") as soon as practicable on or after the Closing Date (as herein defined).
Unless the context otherwise requires, the term "Agreement" as used herein
refers collectively to this Agreement and the Certificate of Merger. The closing
of the Merger (the "Closing") shall take place at the offices of Blau, Kramer,
Wactlar & Xxxxxxxxx, P.C. at a time and date to be specified by the parties,
which shall be no later than July 31, 1997, or at such other time, date and
location as the parties hereto agree in writing (the "Closing Date").
1.3 Effect of the Merger. At the Effective Time, the effect of the Merger
shall be as provided in this Agreement and the applicable provisions of Delaware
Law. Without limiting the generality of the foregoing, and subject thereto, at
the Effective Time all the property, rights, privileges, powers and franchises
of Metraplex and Merger Sub shall vest in the Surviving Corporation, and all
debts, liabilities and duties of Metraplex and Merger Sub shall become the
debts, liabilities and duties of the Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) At the Effective Time, the Certificate of Incorporation of Merger
Sub, as in effect immediately prior to the Effective Time, shall be the
Certificate of Incorporation of the Surviving Corporation until thereafter
amended as provided by law and such Certificate of Incorporation; provided,
however, that at the Effective Time the Certificate of Incorporation of the
Surviving Corporation shall be amended so that the name of the Surviving
Corporation shall be "Metraplex Corporation"
(b) The Bylaws of Merger Sub, as in effect immediately prior to the
Effective Time, shall be, at the Effective Time, the Bylaws of the Surviving
Corporation until thereafter amended.
1.5 Directors and Officers. The directors of Merger Sub immediately prior
to the Effective Time shall be the initial directors of the Surviving
Corporation, until their respective successors are duly elected or appointed and
qualified. The officers of Merger Sub immediately prior to the Effective Time
shall be the initial officers of the Surviving Corporation, until their
successors are duly elected or appointed and qualified.
1.6 Effect on Capital Stock. At the Effective Time, by virtue of the Merger
and without any action on the part of Merger Sub, Metraplex or the holders of
any of the following securities:
(a) Conversion of Metraplex Capital Stock. Each share of Common Stock,
par value $.01 per share, of Metraplex (the "Metraplex Capital Stock") issued
and outstanding immediately prior to the Effective Time (other than Unallocated
ESOP Shares, which are defined in, and shall be converted pursuant to Section
1.6(d) and any Dissenting Shares (as defined in and to the extent provided in
Section 1.7(a)) will be canceled and extinguished and automatically converted
(subject to Sections 1.6(e) and (f)) into 0.32938 (the "Exchange Ratio") shares
of Common Stock, par value $.10 per share, of Xxxxxx (the "Xxxxxx Common Stock")
upon surrender of the certificate representing such share of Metraplex Capital
Stock in the manner provided in Section 1.8 (or in the case of a lost, stolen or
destroyed certificate, upon delivery of an affidavit (and bond, if required) in
the manner provided in Section 1.10).
(b) Cancellation of Xxxxxx-Owned Stock. Each share of Metraplex
Capital Stock held in the treasury of Metraplex or owned by Merger Sub, Xxxxxx
or any direct or indirect wholly owned subsidiary of Metraplex or of Xxxxxx
immediately prior to the Effective Time shall be canceled and extinguished
without any conversion thereof.
(c) Stock Options. At the Effective Time all options to purchase
Metraplex Capital Stock then outstanding under Metraplex's Incentive Stock
Option Plan (collectively, the "Metraplex Stock Option Plans") shall be
terminated on or prior to the Effective Date.
(d) Employee Stock Ownership Plan. The Metraplex Employee Stock
Ownership Plan (the "Metraplex ESOP"), shall be terminated on or prior to the
Effective Date, the 43,437 shares of Metraplex Common Stock allocated under the
Metraplex ESOP shall be converted into a number of shares of Xxxxxx Common Stock
based on the Exchange Ratio and the 121,216 shares of Metraplex Common Stock
unallocated under the Metraplex ESOP (the "Unallocated ESOP Shares") shall be
converted by Metraplex into the right to receive 3,700 shares of Xxxxxx Common
Stock.
(e) Capital Stock of Merger Sub. Each share of Common Stock, par value
$.001 per share, of Merger Sub issued and outstanding immediately prior to the
Effective Time shall be converted into and exchanged for one validly issued,
fully paid and nonassessable share of Common Stock, par value $.001 per share,
of the Surviving Corporation. Each stock certificate of Merger Sub evidencing
ownership of any such shares shall continue to evidence ownership of such shares
of capital stock of the Surviving Corporation.
(f) Adjustments to Exchange Ratio. The Exchange Ratio shall be
adjusted to reflect fully the effect of any stock split, reverse stock split,
stock dividend (including any dividend or distribution of securities convertible
into Xxxxxx Common Stock or Metraplex Capital Stock), reorganization,
recapitalization or other like change with respect to Xxxxxx Common Stock or
Metraplex Capital Stock occurring on or after the date hereof and prior to the
Effective Time.
(g) Fractional Shares. No fraction of a share of Xxxxxx Common Stock
will be issued by virtue of the Merger, but in lieu thereof each holder of
shares of Metraplex Capital Stock who would otherwise be entitled to a fraction
of a share of Xxxxxx Common Stock (after aggregating all fractional shares of
Xxxxxx Common Stock to be received by such holder) shall receive from Xxxxxx an
amount of cash (rounded to the nearest whole cent) equal to the product of (i)
such fraction, multiplied by (ii) the average closing price of a share of Xxxxxx
Common Stock for the ten most recent days that Xxxxxx Common Stock has traded
ending on the trading day immediately prior to the Effective Time, as reported
on the Nasdaq SmallCap Market.
1.7 Dissenting Shares.
-----------------
(a) Notwithstanding any provision of this Agreement to the contrary,
the shares of any holder of Metraplex Capital Stock who has demanded and
perfected appraisal rights for such shares in accordance with Delaware Law and
who, as of the Effective Time, has not effectively withdrawn or lost such
appraisal rights ("Dissenting Shares") shall not be converted into or represent
a right to receive Xxxxxx Common Stock pursuant to Section 1.6, but the holder
thereof shall only be entitled to such rights as are granted by Delaware Law.
(b) Notwithstanding the foregoing, if any holder of shares of
Metraplex Capital Stock who demands appraisal of such shares under Delaware Law
shall effectively withdraw the right to appraisal, then, as of the later of the
Effective Time and the occurrence of such withdrawal, such holder's shares shall
automatically be converted into Xxxxxx Common Stock, without interest thereon,
upon surrender of the certificate representing such shares.
(c) Metraplex shall give Xxxxxx (i) prompt notice of any written
demands for appraisal of any shares of Metraplex Capital Stock, withdrawals of
such demands, and any other instruments served pursuant to Delaware Law and
received by Metraplex which relate to any such demand for appraisal and (ii) the
opportunity to participate in all negotiations and proceedings which take place
prior to the Effective Time with respect to demands for appraisal under Delaware
Law. Metraplex shall not, except with the prior written consent of Xxxxxx or as
may be required by applicable law, voluntarily make any payment with respect to
any demands for appraisal of Metraplex Capital Stock or offer to settle or
settle any such demands.
1.8 Surrender of Certificates.
-------------------------
(a) Exchange Agent. Xxxxxx shall select American Stock Transfer and
Trust Company or another institution reasonably satisfactory to Metraplex to act
as the exchange agent (the "Exchange Agent") in the Merger. Xxxxxx shall be
responsible for paying for the fees and the costs of this Exchange Agent.
(b) Xxxxxx to Provide Common Stock. Promptly, but no later than three
business days after the Effective Time, Xxxxxx shall make available to the
Exchange Agent for exchange in accordance with this Article 1, the shares of
Xxxxxx Common Stock issuable pursuant to Section 1.6 in exchange for outstanding
shares of Metraplex Capital Stock, and cash in an amount sufficient for payment
in lieu of fractional shares pursuant to Section 1.6(g) and any dividends or
distributions that holders of shares of Metraplex Capital Stock may be entitled
pursuant to Sections 1.6(g) and 1.8(d).
(c) Exchange Procedures. Promptly, but no later than five business
days after the Effective Time, Xxxxxx shall cause the Exchange Agent to mail to
each holder of record (as of the Effective Time) of a certificate or
certificates (the "Certificates") which immediately prior to the Effective Time
represented outstanding shares of Metraplex Capital Stock whose shares were
converted into shares of Xxxxxx Common Stock pursuant to Section 1.6, cash in
lieu of any fractional shares pursuant to Section 1.6(g) and any dividends or
other distributions pursuant to Section 1.8(d), (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent and shall be in such form and have such other provisions as
Xxxxxx may reasonably specify) and (ii) instructions for use in effecting the
surrender of the Certificates in exchange for certificates representing shares
of Xxxxxx Common Stock, cash in lieu of any fractional shares pursuant to
Section 1.6(g) and any dividends or other distributions pursuant to Section
1.8(d). Upon surrender of a Certificate for cancellation to the Exchange Agent
or to such other agent or agents as may be appointed by Xxxxxx, together with
such letter of transmittal, duly completed and validly executed in accordance
with the instructions thereto, the holder of such Certificate shall be entitled
to receive in exchange therefor a certificate representing the number of whole
shares of Xxxxxx Common Stock, payment in lieu of fractional shares which such
holder has the right to receive pursuant to Section 1.6(g) and any dividends or
distributions payable pursuant to Section 1.8(d), and the Certificate so
surrendered shall forthwith be canceled. Until so surrendered, each outstanding
Certificate will be deemed from and after the Effective Time, for all corporate
purposes, subject to Section 1.8(d) as to the payment of dividends, to evidence
the ownership of the number of full shares of Xxxxxx Common Stock into which
such shares of Metraplex Capital Stock shall have been so converted and the
right to receive an amount in cash in lieu of the issuance of any fractional
shares in accordance with Section 1.6(g) and any dividends or distributions
payable pursuant to Section 1.8(d).
(d) Distributions With Respect to Unexchanged Shares. No dividends or
other distributions declared or made after the date of this Agreement with
respect to Xxxxxx Common Stock with a record date after the Effective Time will
be paid to the holder of any unsurrendered Certificate with respect to the
shares of Xxxxxx Common Stock represented thereby until the holder of record of
such Certificate shall surrender such Certificate. Subject to applicable law,
following surrender of any such Certificate, there shall be paid to the record
holder thereof certificates representing whole shares of Xxxxxx Common Stock
issued in exchange therefor, without interest, along with the amount of
dividends or other distributions with a record date after the Effective Time
payable with respect to such whole shares of Xxxxxx Common Stock.
(e) Transfers of Ownership. If any certificate for shares of Xxxxxx
Common Stock is to be issued in a name other than that in which the Certificate
surrendered in exchange therefor is registered, it will be a condition of the
issuance thereof that the Certificate so surrendered will be properly endorsed
and otherwise in proper form for transfer and that the person requesting such
exchange will have paid to Xxxxxx or any agent designated by it any transfer or
other taxes required by reason of the issuance of a certificate for shares of
Xxxxxx Common Stock in any name other than that of the registered holder of the
Certificate surrendered, or established to the satisfaction of Xxxxxx or any
agent designated by it that such tax has been paid or is not payable.
(f) No Liability. Notwithstanding anything to the contrary in this
Section 1.8, neither the Exchange Agent, Xxxxxx, the Surviving Corporation nor
any party hereto shall be liable to a holder of shares of Xxxxxx Common Stock or
Metraplex Capital Stock for any amount properly paid to a public official
pursuant to any applicable abandoned property, escheat or similar law.
1.9 No Further Ownership Rights in Metraplex Capital Stock. All shares of
Xxxxxx Common Stock issued upon the surrender for exchange of Certificates in
accordance with the terms hereof (including any cash paid in respect thereof
pursuant to Section 1.6(g) and 1.8(d)) shall be deemed to have been issued in
full satisfaction of all rights pertaining to such shares of Metraplex Capital
Stock, and there shall be no further registration of transfers on the records of
the Surviving Corporation of shares of Metraplex Capital Stock which were
outstanding immediately prior to the Effective Time. If after the Effective
Time, Certificates are presented to the Surviving Corporation for any reason,
they shall be canceled and exchanged as provided in this Article I.
1.10 Lost, Stolen or Destroyed Certificates. In the event any Certificates
shall have been lost, stolen or destroyed, the Exchange Agent shall issue in
exchange for such lost, stolen or destroyed Certificates, upon the making of an
affidavit of that fact by the holder thereof, such whole number of shares of
Xxxxxx Common Stock into which the shares of Metraplex Capital Stock evidenced
thereby shall have been converted, cash for fractional shares, if any, as may be
required pursuant to Section 1.6(g) and any dividends or distributions payable
pursuant to Section 1.8(d); provided, however, that Xxxxxx may, in its
discretion and as a condition precedent to the issuance thereof, require the
owner of such lost, stolen or destroyed Certificates to deliver a bond in such
sum as it may reasonably direct as indemnity against any claim that may be made
against Xxxxxx or the Exchange Agent with respect to the Certificates alleged to
have been lost, stolen or destroyed.
1.11 Tax and Accounting Consequences. It is intended by the parties hereto
that the Merger shall constitute a reorganization within the meaning of Section
368 of the Code. The parties hereto adopt this Agreement as a "plan of
reorganization" within the meaning of Sections 1.368-2(g) and 1.368-3(a) of the
United States Income Tax Regulations.
1.12 Taking of Necessary Action; Further Action. If, at any time after the
Effective Time, any further action is necessary or desirable to carry out the
purposes of this Agreement and to vest the Surviving Corporation with full
right, title and possession to all assets, property, rights, privileges, powers
and franchises of Metraplex and Merger Sub, the officers and directors of
Metraplex and Merger Sub are fully authorized in the name of their respective
corporations or otherwise to take, and will take, all such lawful and necessary
action, so long as such action is consistent with this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF METRAPLEX
Metraplex represents and warrants to Xxxxxx and Merger Sub, subject to the
exceptions specifically disclosed in writing in the disclosure letter supplied
by Metraplex to Xxxxxx (the "Metraplex Schedules"), as follows:
2.1 Organization of Metraplex. Metraplex and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power to own, lease
and operate its property and to carry on its business as now being conducted and
as proposed to be conducted, and is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which the failure to
be so qualified would have a Material Adverse Effect (as defined below) on
Metraplex. Metraplex has delivered to Xxxxxx a true and complete list of all of
Metraplex's subsidiaries, together with the jurisdiction of incorporation of
each subsidiary and Metraplex's equity interest therein. Metraplex has delivered
or made available a true and correct copy of the Certificate of Incorporation
and Bylaws of Metraplex and similar governing instruments of its subsidiaries,
each as amended to date, to counsel for Xxxxxx. When used in connection with
Metraplex, the term "Material Adverse Effect" means, for purposes of this
Agreement, any change, event or effect that is materially adverse to the
business, assets (including intangible assets), financial condition or results
of operations of Metraplex and its subsidiaries taken as a whole, provided,
however, that the continuation of current trends in such business, assets
(including intangible assets), financial condition or results of operations
(including without limitation further losses) shall not be deemed to constitute
a Material Adverse Effect, but material deviations therefrom shall constitute a
Material Adverse Effect.
2.2 Metraplex Capital Structure. The authorized capital stock of Metraplex
consists of 823,263 shares of Common Stock, par value $.01 per share, of which
there were 702,047 shares issued and outstanding as of June [1], 1997, not
including the 121,216 shares which have not been allocated under the Metraplex
ESOP. All outstanding shares of Metraplex Capital Stock are duly authorized,
validly issued, fully paid and non-assessable and are not subject to preemptive
rights created by statute, the Certificate of Incorporation or Bylaws of
Metraplex or any agreement or document to which Metraplex is a party or by which
it is bound. As of June 1, 1997, Metraplex had reserved an aggregate of 35,000
shares of Common Stock, net of exercises, for issuance to employees, consultants
and non-employee directors pursuant to the Metraplex Stock Option Plans, under
which options are outstanding for an aggregate of 10,000 shares, all of which
outstanding options shall be terminated on or prior to the Effective Date. All
shares of Metraplex Capital Stock subject to issuance as aforesaid, upon
issuance on the terms and conditions specified in the instruments pursuant to
which they are issuable, would be duly authorized, validly issued, fully paid
and nonassessable. The Metraplex Schedules list each outstanding option to
acquire shares of the Common Stock of Metraplex at June 1, 1997, the name of the
holder of such option, the number of shares subject to such option, the exercise
price of such option, the number of shares as to which such option will have
vested at such date and whether the exercisability of such option will be
accelerated in any way by the transactions contemplated by this Agreement or for
any other reason, and indicate the extent of acceleration, if any. Metraplex is
required to repurchase the shares of stock owned by participants in the
Metraplex ESOP as required by law. Metraplex will be terminating the ESOP prior
to the Effective Time and advising Merger Sub and Xxxxxx of the number of shares
to be distributed to the ESOP, as determined by the ESOP's trustees.
2.3 Obligations With Respect to Capital Stock. Except as set forth in
Section 2.2, there are no equity securities of any class of Metraplex, or any
securities exchangeable or convertible into or exercisable for such equity
securities, issued, reserved for issuance or outstanding. Except for securities
Metraplex owns, directly or indirectly through one or more subsidiaries, there
are no equity securities of any class of any subsidiary of Metraplex, or any
security exchangeable or convertible into or exercisable for such equity
securities, issued, reserved for issuance or outstanding. Except as set forth in
Section 2.2, there are no options, warrants, equity securities, calls, rights
(including preemptive rights), commitments or agreements of any character to
which Metraplex or any of its subsidiaries is a party or by which it is bound
obligating Metraplex or any of its subsidiaries to issue, deliver or sell, or
cause to be issued, delivered or sold, or repurchase, redeem or otherwise
acquire, or cause the repurchase, redemption or acquisition, of any shares of
capital stock of Metraplex, or any of its subsidiaries or obligating Metraplex
or any of its subsidiaries to grant, extend, accelerate the vesting of or enter
into any such option, warrant, equity security, call, right, commitment or
agreement. There are no registration rights and, to the knowledge of Metraplex,
there are no voting trusts, proxies or other agreements or understandings with
respect to any equity security of any class of Metraplex or with respect to any
equity security of any class of any of its subsidiaries.
2.4 Authority.
---------
(a) Metraplex has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby, have been duly authorized by all necessary
corporate action on the part of Metraplex, subject only to the approval of this
Agreement by Metraplex's stockholders and the filing and recordation of the
Certificate of Merger pursuant to Delaware Law. A vote of the holders of at
least a majority of the outstanding shares of the Metraplex Capital Stock is
required for Metraplex's stockholders to approve this Agreement. This Agreement
has been duly executed and delivered by Metraplex and, assuming the due
authorization, execution and delivery by Xxxxxx and Merger Sub, constitutes the
valid and binding obligation of Metraplex, enforceable in accordance with its
terms, except as enforceability may be limited by bankruptcy and other similar
laws and general principles of equity. Except as set forth in the Metraplex
Schedules, the execution and delivery of this Agreement by Metraplex does not,
and the performance of this Agreement by Metraplex will not, (i) conflict with
or violate the Certificate of Incorporation or Bylaws of Metraplex or the
equivalent organizational documents of any of its subsidiaries, (ii) subject to
obtaining the approval of Metraplex's stockholders of the Merger as contemplated
in Section 5.2 and compliance with the requirements set forth in Section 2.4(b)
below, conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to Metraplex or any of its subsidiaries or by which its or any
of their respective properties is bound or affected, or (iii) result in any
breach of or constitute a default (or an event that with notice or lapse of time
or both would become a default) under, or impair Metraplex's rights or alter the
rights or obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of
Metraplex or any of its subsidiaries pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Metraplex or any of its subsidiaries is a
party or by which Metraplex or any of its subsidiaries or its or any of their
respective properties are bound or affected, except, with respect to clauses
(ii) and (iii), for any such conflicts, violations, defaults or other
occurrences that would not have a Material Adverse Effect on Metraplex. The
Metraplex Schedules list all material consents, waivers and approvals under any
of Metraplex's or any of its subsidiaries' agreements, contracts, licenses or
leases required to be obtained in connection with the consummation of the
transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with any court, administrative agency or commission or
other governmental authority or instrumentality ("Governmental Entity") is
required by or with respect to Metraplex in connection with the execution and
delivery of this Agreement or the consummation of the transactions contemplated
hereby or thereby, except for (i) the filing of the Certificate of Merger with
the Secretary of State of the State of Delaware, (ii) such consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal and state securities laws and the laws of any
foreign country and (iii) such other consents, authorizations, filings,
approvals and registrations which, if not obtained or made, would not have a
Material Adverse Effect on Metraplex or Xxxxxx or have a material adverse effect
on the ability of the parties to consummate the Merger.
2.5 Metraplex Financial Statements.
------------------------------
Attached hereto as Schedule 2.6 are the Financial Statements of
Metraplex ( Metraplex Financial Statements ) for the calendar years ended March
31, 1997, 1996 and 1995.
(a) For the relevant periods, the Metraplex Financial Statements: (1)
are complete and correct in all material respects; (2) present fairly the
financial position of Metraplex and its subsidiaries at such dates and the
results of operations and cash flows for the respective periods ended on such
dates; and (3) were prepared in accordance with generally accepted accounting
principles ( GAAP ), consistently applied during the periods, and are in
accordance with the books and records maintained by Metraplex and its
subsidiaries, with no differences between such Metraplex Financial Statements
and the financial records maintained and accounting methods applied by Metraplex
for tax purposes, except as disclosed in the notes to the Metraplex Financial
Statements.
(b) The balance sheet of Metraplex contained in the Metraplex
Financial Statements as of March 31, 1997 is hereinafter referred to as the
"Metraplex Balance Sheet." Except as disclosed in the Metraplex Financial
Statements, neither Metraplex nor any of its subsidiaries has any liabilities
(absolute, accrued, contingent or otherwise) of a nature required to be
disclosed on a balance sheet or in the related notes to the consolidated
financial statements prepared in accordance with GAAP which are, individually or
in the aggregate, material to the business, results of operations or financial
condition of Metraplex and its subsidiaries taken as a whole, except liabilities
(i) provided for in the Metraplex Balance Sheet, or (ii) incurred since the date
of the Metraplex Balance Sheet in the ordinary course of business consistent
with past practices.
2.6 (a) Absence of Certain Changes or Events. Since the date of the
Metraplex Balance Sheet through the date of this Agreement, there has not been:
(i) any Material Adverse Effect on Metraplex, (ii) any material change by
Metraplex in its accounting methods, principles or practices, except as required
by concurrent changes in GAAP, or (iii) any revaluation by Metraplex of any of
its assets having a Material Adverse Effect on Metraplex, including, without
limitation, writing down the value of inventory or writing off notes or accounts
receivable other than in the ordinary course of business.
2.7 Taxes. Metraplex and each of its subsidiaries has filed all tax returns
required to be filed by any of them and has paid (or Metraplex has paid on its
behalf), or has set up an adequate reserve for the payment of, all taxes
required to be paid as shown on such returns, and the most recent Metraplex
Financial Statements reflect an adequate reserve for all taxes payable by
Metraplex and its subsidiaries accrued through the date of such financial
statements. Except as reasonably would not be expected to have a Material
Adverse Effect on Metraplex, no deficiencies for any taxes have been proposed,
asserted or assessed against Metraplex or any of its subsidiaries. For the
purpose of this Agreement, the term "tax" shall include all Federal, state,
local and foreign income, profits, franchise, gross receipts, payroll, sales,
employment, use, property, withholding, excise and other taxes, duties or
assessments of any nature whatsoever, together with all interest, penalties and
additions imposed with respect to such amounts.
2.8 Intellectual Property.
---------------------
(a) To the knowledge of Metraplex and its subsidiaries, Metraplex and its
subsidiaries own, or have the right to use, sell or license all patents,
trademarks, trade names, service marks, copyrights and other intellectual
property necessary or required for the conduct of their respective businesses as
presently conducted (such intellectual property and the rights thereto are
collectively referred to herein as the "Metraplex IP Rights"), except for any
failure to own or have the right to use, sell or license that would not have a
Material Adverse Effect on Metraplex.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a
breach of any instrument or agreement governing any Metraplex IP Rights (the
"Metraplex IP Rights Agreements"), will not cause the forfeiture or termination
or give rise to a right of forfeiture or termination of any Metraplex IP Rights
or impair the right of Metraplex and its subsidiaries, the Surviving Corporation
or Xxxxxx to use, sell or license any Metraplex IP Rights or portion thereof,
except for the occurrence of any such breach, forfeiture, termination or
impairment that would not individually or in the aggregate, result in a Material
Adverse Effect on Metraplex.
(c) To the knowledge of Metraplex and its subsidiaries (i) neither the
manufacture, marketing, license, sale or intended use of any product or
technology currently licensed or sold or under development by Metraplex or any
of its subsidiaries violates any license or agreement between Metraplex or any
of its subsidiaries and any third party or infringes any intellectual property
right of any other party; and (ii) there is no pending or, to the knowledge of
Metraplex, threatened claim, arbitration or litigation contesting the validity,
ownership or right to use, sell, license or dispose of any Metraplex IP Rights,
nor has Metraplex received any written notice asserting that any Metraplex IP
Rights or the proposed use, sale, license or disposition thereof conflicts or
will conflict with the rights of any other party, except, with respect to
clauses (i) and (ii), for any violations, infringements, claims or litigation
that would not have a Material Adverse Effect on Metraplex.
(d) Metraplex has taken reasonable and practicable steps designed to
safeguard and maintain the secrecy and confidentiality of, and its proprietary
rights in, all Metraplex IP Rights.
2.9 Compliance; Permits; Restrictions.
---------------------------------
(e) Neither Metraplex nor any of its subsidiaries is in conflict with,
or in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to Metraplex or any of its subsidiaries or by which its or any
of their respective properties is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Metraplex or any of its subsidiaries is
a party or by which Metraplex or any of its subsidiaries or its or any of their
respective properties is bound or affected, except for any conflicts, defaults
or violations which would not have a Material Adverse Effect on Metraplex. No
investigation or review by any governmental or regulatory body or authority is
pending or, to the knowledge of Metraplex, threatened against Metraplex or its
subsidiaries, nor has any governmental or regulatory body or authority indicated
an intention to conduct the same, other than, in each such case, those the
outcome of which would not have a Material Adverse Effect on Metraplex.
(f) Metraplex and its subsidiaries hold all permits, licenses,
variances, exemptions, orders and approvals from governmental authorities which
are material to the operation of the business of Metraplex and its subsidiaries
taken as a whole (collectively, the "Metraplex Permits"). Metraplex and its
subsidiaries are in compliance with the terms of Metraplex Permits, except where
the failure to hold the same or to so comply would not have a Material Adverse
Effect on Metraplex.
2.10 Litigation. There is no action, suit, proceeding, claim, arbitration
or investigation pending, or as to which Metraplex or any of its subsidiaries
has received any notice of assertion nor, to Metraplex's knowledge, is there a
threat of an action, suit, proceeding, claim, arbitration or investigation
against Metraplex or any of its subsidiaries or which in any manner challenges
or seeks to prevent, enjoin, alter or delay any of the transactions contemplated
by this Agreement.
2.11 Brokers' and Finders' Fees. Metraplex has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
2.12 Employee Benefit Plans.
----------------------
(a) With respect to each material employee benefit plan, program,
arrangement and contract (including, without limitation, any "employee benefit
plan" as defined in Section 3(3) of the Employee Retirement Income Security Act
of 1974, as amended ("ERISA") maintained or contributed to by Metraplex or any
trade or business (an "ERISA Affiliate") which is under common control with
Metraplex within the meaning of Section 414 of the Code (the "Metraplex Employee
Plans"), Metraplex has made available to Xxxxxx a true and complete copy of, to
the extent applicable, (i) such Metraplex Employee Plan, (ii) the most recent
annual report (Form 5500), (iii) each trust agreement related to such Metraplex
Employee Plan, (iv) the most recent summary plan description for each Metraplex
Employee Plan for which such a description is required, (v) the most recent
actuarial report relating to any Metraplex Employee Plan subject to Title IV of
ERISA and (vi) the most recent United States Internal Revenue Service ("IRS")
determination letter issued with respect to any Metraplex Employee Plan.
(b) Each Metraplex Employee Plan which is intended to be qualified
under Section 401(a) of the Code has received a favorable determination from the
IRS covering the provisions of the Tax Reform Act of 1986 stating that such
Metraplex Employee Plan is so qualified and nothing has occurred since the date
of such letter that could reasonably be expected to affect the qualified status
of such plan. Each Metraplex Employee Plan has been operated in all material
respects in accordance with its terms and the requirements of applicable law.
Neither Metraplex nor any ERISA Affiliate of Metraplex has incurred or is
reasonably expected to incur any material liability under Title IV of ERISA in
connection with any Metraplex Employee Plan.
(c) Neither Metraplex nor any ERISA Affiliate thereof has withdrawn in
a complete or partial withdrawal from any multi-employer plan within the meaning
of Section 4001(a)(3) of ERISA prior to the Effective Time. Neither Metraplex
nor any ERISA Affiliate thereof has contributed to or been obligated to
contribute to any multi-employer plan within the meaning of Section 4001(a)(3)
of ERISA.
2.13 Absence of Liens and Encumbrances. Metraplex and each of its
subsidiaries has good and valid title to, or, in the case of leased properties
and assets, valid leasehold interests in, all of its material tangible
properties and assets, real, personal and mixed, used in its business, free and
clear of any liens or encumbrances except as reflected in the Metraplex
Financial Statements and except for liens for taxes not yet due and payable, the
perfection of purchase money security interests, as provided by law, to vendors
of property to Metraplex and such imperfections of title and encumbrances, if
any, which would not have a Material Adverse Effect on Metraplex.
2.14 Environmental Matters.
---------------------
(a) Hazardous Material. Except as would not have a Material Adverse
Effect on Metraplex, no underground storage tanks and no amount of any substance
that has been designated by any Governmental Entity or by applicable federal,
state or local law to be radioactive, toxic, hazardous or otherwise a danger to
health or the environment, including, without limitation, PCBs, asbestos,
petroleum, urea-formaldehyde and all substances listed as hazardous substances
pursuant to the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended, or defined as a hazardous waste pursuant to
the United States Resource Conservation and Recovery Act of 1976, as amended,
and the regulations promulgated pursuant to said laws, (a "Hazardous Material"),
but excluding office and janitorial supplies, are present in the soil,
groundwater, building materials or ambient air of any real property currently
occupied by Metraplex as a result of the deliberate actions of Metraplex or any
of its subsidiaries, and Metraplex has not received any notice that it is
allegedly liable for the presence of Hazardous Materials in, on or under any
other property, including the land and the improvements, ground water and
surface water thereof, that Metraplex or any of its subsidiaries has at any time
owned, operated, occupied or leased.
(b) Hazardous Materials Activities. Except as would not have a
Material Adverse Effect on Metraplex, neither Metraplex nor any of its
subsidiaries has transported, stored, used, manufactured, disposed of, released
or exposed its employees or others to Hazardous Materials in violation of any
law in effect on or before the Closing Date, nor has Metraplex or any of its
subsidiaries disposed of, transported, sold, or manufactured any product
containing a Hazardous Material (collectively "Hazardous Materials Activities")
in violation of any rule, regulation, treaty or statute promulgated by any
Governmental Entity in effect prior to or as of the date hereof to prohibit,
regulate or control Hazardous Materials or any Hazardous Material Activity.
(c) Permits. Metraplex and its subsidiaries currently hold all
environmental approvals, permits, licenses, clearances and consents (the
"Metraplex Environmental Permits") necessary for the conduct of Metraplex's and
its subsidiaries' Hazardous Material Activities as currently conducted and other
businesses of Metraplex and its subsidiaries as such activities and businesses
are currently being conducted, except where the failure to so hold would not
have a Material Adverse Effect on Metraplex.
(d) Environmental Liabilities. No material action, proceeding,
revocation proceeding, amendment procedure, writ, injunction or claim is
pending, or to Metraplex's knowledge, threatened concerning any Metraplex
Environmental Permit or any Hazardous Materials Activity of Metraplex or any of
its subsidiaries. Metraplex is not aware of any fact or circumstance which could
involve Metraplex or any of its subsidiaries in any environmental litigation or
impose upon Metraplex or any of its subsidiaries any environmental liability
that would have a Material Adverse Effect on Metraplex.
2.15 Labor Matters. To Metraplex's knowledge, there are no activities or
proceedings of any labor union to organize any employees of Metraplex or any of
its subsidiaries and there are no strikes, or material slowdowns, work stoppages
or lockouts, or threats thereof by or with respect to any employees of Metraplex
or any of its subsidiaries. Metraplex and its subsidiaries are and have been in
compliance with all applicable laws regarding employment practices, terms and
conditions of employment, and wages and hours (including, without limitation,
ERISA (as defined below), WARN or any similar state or local law), except for
any noncompliance that would not have a Material Adverse Effect on Metraplex.
2.16 Agreements, Contracts and Commitments. Except as set forth in the
Metraplex Schedules, neither Metraplex nor any of its subsidiaries is a party to
or is bound by:
(a) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension,
profit-sharing or retirement plans, or any other employee benefit plans or
arrangements;
(c) any employment or consulting agreement, contract or commitment
with any officer or director level employee, not terminable by Metraplex or any
of its subsidiaries on thirty (30) days notice without liability, except to the
extent general principles of wrongful termination law may limit Metraplex's or
any of its subsidiaries' ability to terminate employees at will;
(d) any agreement or plan, including, without limitation, any stock
option plan, stock appreciation right plan or stock purchase plan, any of the
benefits of which will be increased, or the vesting of benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be calculated on the
basis of any of the transactions contemplated by this Agreement; except that the
termination of the Metraplex ESOP will result in 100% vesting.
(e) any agreement of indemnification or guaranty not entered into in
the ordinary course of business other than indemnification agreements between
Metraplex or any of its subsidiaries and any of its officers or directors;
(f) any agreement, contract or commitment containing any covenant
limiting the freedom of Metraplex or any of its subsidiaries to engage in any
line of business or compete with any person;
(g) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of $10,000 and not
cancelable without penalty;
(h) any agreement, contract or commitment currently in force relating
to the disposition or acquisition of assets not in the ordinary course of
business or any ownership interest in any corporation, partnership, joint
venture or other business enterprise;
(i) any mortgages, indentures, loans or credit agreements, security
agreements or other agreements or instruments relating to the borrowing of money
or extension of credit;
(j) any joint marketing or development agreement;
(k) any distribution agreement (identifying any that contain
exclusivity provisions); or
(l) any other agreement, contract or commitment (excluding real and
personal property leases) which involve payment by Metraplex or any of its
subsidiaries under any such agreement, contract or commitment of $10,000 or more
in the aggregate and is not cancelable without penalty within thirty (30) days.
Neither Metraplex nor any of its subsidiaries, nor to Metraplex's knowledge
any other party to a Metraplex Contract (as defined below), has breached,
violated or defaulted under, or received notice that it has breached violated or
defaulted under, any of the material terms or conditions of any of the
agreements, contracts or commitments to which Metraplex is a party or by which
it is bound of the type described in clauses (a) through (l) above (any such
agreement, contract or commitment, an "Metraplex Contract") in such a manner as
would permit any other party to cancel or terminate any such Metraplex Contract,
or would permit any other party to seek damages, which would have a Material
Adverse Effect on Metraplex.
2.17 Change of Control Payments. There are no plans or agreements pursuant
to which any amounts may become payable (whether currently or in the future) to
current or former officers or directors of Metraplex as a result of or in
connection with the Merger.
2.18 Board Approval. The Board of Directors of Metraplex has, as of the
date of this Agreement, determined (i) that the Merger is fair to and in the
best interests of Metraplex and its stockholders, and (ii) to recommend that the
stockholders of Metraplex approve this Agreement.
2.19 Minute Books. The minute books of Metraplex made available to counsel
for Xxxxxx are the only minute books of Metraplex and contain a reasonably
accurate summary, in all material respects, of all meetings of directors (or
committees thereof) and stockholders or actions by written consent since the
time of incorporation of Metraplex.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF Xxxxxx AND MERGER SUB
Xxxxxx and Merger Sub represent and warrant to Metraplex, subject to the
exceptions specifically disclosed in the schedules supplied by Xxxxxx to
Metraplex (the "Xxxxxx Schedules"), as follows:
3.1 Organization of Xxxxxx. Xxxxxx and each of its subsidiaries is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation, has the corporate power to own, lease
and operate its property and to carry on its business as now being conducted and
as proposed to be conducted, and is duly qualified to do business and in good
standing as a foreign corporation in each jurisdiction in which the failure to
be so qualified would have a Material Adverse Effect (as defined below) on
Xxxxxx and its subsidiaries taken as a whole. Xxxxxx has delivered to Metraplex
a true and complete list of all of Xxxxxx'x subsidiaries, together with the
jurisdiction of incorporation of each subsidiary and Xxxxxx'x equity interest
therein. Xxxxxx has delivered or made available a true and correct copy of the
Certificate of Incorporation and Bylaws of Xxxxxx and similar governing
instruments of its subsidiaries, each as amended to date, to counsel for
Metraplex. When used in connection with Xxxxxx, the term "Material Adverse
Effect" means, for purposes of this Agreement, any change, event or effect that
is materially adverse to the business, assets (including intangible assets),
financial condition or results of operations of Xxxxxx and its subsidiaries
taken as a whole; provided, however, that the continuation of current trends in
such business, assets (including intangible assets), financial condition or
results of operations (including without limitation further losses) shall not be
deemed to constitute a Material Adverse Effect, but material deviations
therefrom shall constitute a Material Adverse Effect.
3.2 Xxxxxx Capital Structure. The authorized capital stock of Xxxxxx
consists of 10,000,000 shares of Common Stock, par value $.10 per share, of
which there were approximately 3,020,000 shares issued and outstanding as of
June 1, 1997. The authorized capital stock of Merger Sub consists of 1,000
shares of Common Stock, par value $.001 per share, 100 shares of which, as of
the date hereof, are issued and outstanding and are held by Xxxxxx. All
outstanding shares of the Common Stock of Xxxxxx are duly authorized, validly
issued, fully paid and non-assessable and are not subject to preemptive rights
created by statute, the Certificate of Incorporation or Bylaws of Xxxxxx or any
agreement or document to which Xxxxxx is a party or by which it is bound. As of
June 1, 1997, Xxxxxx had reserved an aggregate of 2,000,000 shares of Common
Stock, net of exercises, for issuance to employees, consultants and non-employee
directors pursuant to Xxxxxx'x 1992 Non-Qualified Stock Option Plan, 1996 Stock
Option Plan and 1997 Stock Option Plan (collectively, the "Xxxxxx Stock Option
Plans"), under which options are outstanding for an aggregate 1,218,476 shares.
As of June 1, 1997, Xxxxxx had reserved an aggregate of 250,000 shares of Common
Stock, net of cancellations, for issuance to certain officers and directors
under certain warrant agreements (collectively, the "Xxxxxx Warrants"). All
shares of the Common Stock of Xxxxxx subject to issuance as aforesaid, upon
issuance on the terms and conditions specified in the instruments pursuant to
which they are issuable, would be duly authorized, validly issued, fully paid
and nonassessable. The Xxxxxx Schedules list each outstanding option or warrant
to acquire shares of the Common Stock of Xxxxxx at June 30, 1997, the name of
the holder of such option or warrant, the number of shares subject to such
optionor warrant, the exercise price of such option or warrant, the number of
shares as to which such option or warrant will have vested at such date and
whether the exercisability of such option or warrant will be accelerated in any
way by the transactions contemplated by this Agreement or for any other reason,
and indicate the extent of acceleration, if any.
3.3 Obligations With Respect to Capital Stock. Except as set forth in
Section 3.2, there are no equity securities of any class of Xxxxxx, or any
securities exchangeable or convertible into or exercisable for such equity
securities, issued, reserved for issuance or outstanding. Except for securities
Xxxxxx owns, directly or indirectly through one or more subsidiaries, there are
no equity securities of any class of any subsidiary of Xxxxxx, or any security
exchangeable or convertible into or exercisable for such equity securities,
issued, reserved for issuance or outstanding. Except as set forth in Section
3.2, there are no options, warrants, equity securities, calls, rights (including
preemptive rights), commitments or agreements of any character to which Xxxxxx
or any of its subsidiaries is a party or by which it is bound obligating Xxxxxx
or any of its subsidiaries to issue, deliver or sell, or cause to be issued,
delivered or sold, or repurchase, redeem or otherwise acquire, or cause the
repurchase, redemption or acquisition, of any shares of capital stock of Xxxxxx
or any of its subsidiaries or obligating Xxxxxx or any of its subsidiaries to
grant, extend, accelerate the vesting of or enter into any such option, warrant,
equity security, call, right, commitment or agreement. There are no registration
rights and, to the knowledge of Xxxxxx there are no voting trusts, proxies or
other agreements or understandings with respect to any equity security of any
class of Xxxxxx or with respect to any equity security of any class of any of
its subsidiaries.
3.4 Authority.
---------
(a) Each of Xxxxxx and Merger Sub has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by all necessary corporate action on the part of Xxxxxx and, in the case of this
Agreement, Merger Sub, subject to the filing and recordation of the Certificate
of Merger pursuant to Delaware Law. This Agreement has been duly executed and
delivered by each of Xxxxxx and Merger Sub and, assuming the due authorization,
execution and delivery of this Agreement by Metraplex, subject to the conditions
set forth herein, this Agreement constitutes the valid and binding obligations
of each of Xxxxxx and Merger Sub, enforceable in accordance with its terms,
except as enforceability may be limited by bankruptcy and other similar laws and
general principles of equity. The execution and delivery of this Agreement by
each of Xxxxxx and Merger Sub do not, and the performance of this Agreement by
each of Xxxxxx and Merger Sub will not, (i) conflict with or violate the
Certificate of Incorporation or Bylaws of Xxxxxx or the Certificate of
Incorporation or Bylaws of Merger Sub or the equivalent organizational documents
of any of its other subsidiaries, (ii) subject to compliance with the
requirements set forth in Section 3.4(b) below, conflict with or violate any
law, rule, regulation, order, judgment or decree applicable to Xxxxxx or any of
its subsidiaries (including Merger Sub) or by which its or any of their
respective properties is bound or affected, or (iii) result in any breach of or
constitute a default (or an event that with notice or lapse of time or both
would become a default) under, or impair Xxxxxx'x rights or alter the rights or
obligations of any third party under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the properties or assets of Xxxxxx
or any of its subsidiaries (including Merger Sub) pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Xxxxxx or any of its subsidiaries
(including Merger Sub) is a party or by which Xxxxxx or any of its subsidiaries
(including Merger Sub) or its or any of their respective properties are bound or
affected, except, with respect to clauses (ii) and (iii), for any such
conflicts, violations, defaults or other occurrences that would not have a
Material Adverse Effect on Xxxxxx. The Xxxxxx Schedules list all material
consents, waivers and approvals under any of Xxxxxx'x or any of its
subsidiaries' agreements, contracts, licenses or leases required to be obtained
in connection with the consummation of the transactions contemplated hereby.
(b) No consent, approval, order or authorization of, or registration,
declaration or filing with any Governmental Entity is required by or with
respect to Xxxxxx or Merger Sub in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby,
except for (i) the filing of the Certificate of Merger with the Secretary of
State of the State of Delaware, (ii) the filing of a Current Report on Form 8-K
with the Securities Exchange Commission ( SEC ), (iii) such consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under applicable federal and state securities laws and the laws of any
foreign country and (iv) such other consents, authorizations, filings, approvals
and registrations which, if not obtained or made, would not have a Material
Adverse Effect on Metraplex or Xxxxxx or have a material adverse effect on the
ability of the parties to consummate the Merger.
3.5 SEC Filings; Xxxxxx Financial Statements.
----------------------------------------
(a) Xxxxxx has filed all forms, reports and documents required to be
filed with the SEC since and including March 1997, and has made available to
Metraplex such forms, reports and documents in the form filed with the SEC. All
such required forms, reports and documents (including those that Xxxxxx may file
subsequent to the date hereof) are referred to herein as the "Xxxxxx SEC
Reports." As of their respective dates, the Xxxxxx SEC Reports (i) were prepared
in accordance with the requirements of the Securities Act of 1933 ( Securities
Act ) or the Securities Exchange Act of 0000 ( Xxxxxxxx Xxx ), as the case may
be, and the rules and regulations of the SEC thereunder applicable to such
Xxxxxx SEC Reports, and (ii) did not at the time they were filed (or if amended
or superseded by a filing prior to the date of this Agreement, then on the date
of such filing) contain any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. None of Xxxxxx'x subsidiaries is required to file any
forms, reports or other documents with the SEC.
(b) Each of the consolidated financial statements (including, in each
case, any related notes thereto) contained in Xxxxxx SEC Reports (the "Xxxxxx
Financials"), including any Xxxxxx SEC Reports filed after the date hereof until
the Closing, (x) complied as to form in all material respects with the published
rules and regulations of the SEC with respect thereto, (y) was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto or, in the case of
unaudited interim financial statements, as may be permitted by the SEC on Form
10-QSB under the Exchange Act) and (z) fairly presented the consolidated
financial position of Xxxxxx and its subsidiaries as at the respective dates
thereof and the consolidated results of its operations and cash flows for the
periods indicated, except that the unaudited interim financial statements were
or are subject to normal and recurring year-end adjustments which were not, or
are not expected to be, material in amount. The balance sheet of Xxxxxx
contained in Xxxxxx SEC Reports as of March 31, 1997 is hereinafter referred to
as the "Xxxxxx Balance Sheet." Except as disclosed in the Xxxxxx Financials,
neither Xxxxxx nor any of its subsidiaries has any liabilities (absolute,
accrued, contingent or otherwise) of a nature required to be disclosed on a
balance sheet or in the related notes to the consolidated financial statements
prepared in accordance with GAAP which are, individually or in the aggregate,
material to the business, results of operations or financial condition of Xxxxxx
and its subsidiaries taken as a whole, except liabilities (i) provided for in
the Xxxxxx Balance Sheet, or (ii) incurred since the date of the Xxxxxx Balance
Sheet in the ordinary course of business consistent with past practices.
(c) Xxxxxx has heretofore furnished to Metraplex a complete and
correct copy of any amendments or modifications, which have not yet been filed
with the SEC but which are required to be filed, to agreements, documents or
other instruments which previously had been filed by Xxxxxx with the SEC
pursuant to the Securities Act or the Exchange Act.
3.6 Absence of Certain Changes or Events. Since the date of the Xxxxxx
Balance Sheet through the date of this Agreement, there has not been: (i) any
Material Adverse Effect on Xxxxxx, (ii) any material change by Xxxxxx in its
accounting methods, principles or practices, except as required by concurrent
changes in GAAP, or (iii) any revaluation by Xxxxxx of any of its assets having
a Material Adverse Effect on Xxxxxx, including, without limitation, writing down
the value of inventory or writing off notes or accounts receivable other than in
the ordinary course of business.
3.7 Taxes. Xxxxxx and each of its subsidiaries has filed all tax returns
required to be filed by any of them and has paid (or Xxxxxx has paid on its
behalf), or has set up an adequate reserve for the payment of, all material
taxes required to be paid as shown on such returns and the most recent financial
statements contained in the Xxxxxx SEC Reports reflect an adequate reserve for
all material taxes payable by Xxxxxx and its subsidiaries accrued through the
date of such financial statements. Except as reasonably would not be expected to
have a Material Adverse Effect on Xxxxxx, no deficiencies for any taxes have
been proposed, asserted or assessed against Xxxxxx or any of its subsidiaries.
3.8 Intellectual Property.
---------------------
(a) To the knowledge of Xxxxxx and its subsidiaries, Xxxxxx and its
subsidiaries own, or have the right to use, sell or license all patents,
trademarks, trade names, service marks, copyrights and other intellectual
property necessary or required for the conduct of their respective businesses as
presently conducted (such intellectual property and the rights thereto are
collectively referred to herein as the "Xxxxxx IP Rights"), except for any
failure to own or have the right to use, sell or license that would not have a
Material Adverse Effect on Xxxxxx.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a
breach of any instrument or agreement governing any Xxxxxx IP Rights (the
"Xxxxxx IP Rights Agreements"), will not cause the forfeiture or termination or
give rise to a right of forfeiture or termination of any Xxxxxx IP Rights or
impair the right of Xxxxxx and its subsidiaries to use, sell or license any
Xxxxxx IP Rights or portion thereof, except for the occurrence of any such
breach, forfeiture, termination or impairment that would not individually or in
the aggregate, result in a Material Adverse Effect on Xxxxxx.
(c) To the knowledge of Xxxxxx and its subsidiaries, (i) neither the
manufacture, marketing, license, sale or intended use of any product or
technology currently licensed or sold or under development by Xxxxxx or any of
its subsidiaries violates any license or agreement between Xxxxxx or any of its
subsidiaries and any third party or infringes any intellectual property right of
any other party; and (ii) there is no pending or, to the knowledge of Xxxxxx,
threatened claim, arbitration or litigation contesting the validity, ownership
or right to use, sell, license or dispose of any Xxxxxx IP Rights, nor has
Xxxxxx received any written notice asserting that any Xxxxxx IP Rights or the
proposed use, sale, license or disposition thereof conflicts or will conflict
with the rights of any other party, except, with respect to clauses (i) and
(ii), for any violations, infringements, claims or litigation that would not
have a Material Adverse Effect on Xxxxxx.
(d) Xxxxxx has taken reasonable and practicable steps designed to
safeguard and maintain the secrecy and confidentiality of, and its proprietary
rights in, all Xxxxxx IP Rights.
3.9 Compliance; Permits; Restrictions.
---------------------------------
(a) Neither Xxxxxx nor any of its subsidiaries is in conflict with, or
in default or violation of, (i) any law, rule, regulation, order, judgment or
decree applicable to Xxxxxx or any of its subsidiaries or by which its or any of
their respective properties is bound or affected, or (ii) any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Xxxxxx or any of its subsidiaries is a
party or by which Xxxxxx or any of its subsidiaries or its or any of their
respective properties is bound or affected, except for any conflicts, defaults
or violations which would not have a Material Adverse Effect on Xxxxxx. No
investigation or review by any governmental or, to the knowledge of Xxxxxx,
regulatory body or authority is pending or threatened against Xxxxxx or its
subsidiaries, nor has any governmental or regulatory body or authority indicated
an intention to conduct the same, other than, in each such case, those the
outcome of which would not have a Material Adverse Effect on Xxxxxx.
(b) Xxxxxx and its subsidiaries hold all permits, licenses, variances,
exemptions, orders and approvals from governmental authorities which are
material to the operation of the business of Xxxxxx and its subsidiaries taken
as a whole (collectively, the "Xxxxxx Permits"). Xxxxxx and its subsidiaries are
in compliance with the terms of Xxxxxx Permits, except where the failure to hold
the same or to so comply would not have a Material Adverse Effect on Xxxxxx.
3.10 Litigation. There is no action, suit, proceeding, claim, arbitration
or investigation pending, or as to which Xxxxxx or any of its subsidiaries has
received any notice of assertion nor, to Xxxxxx'x knowledge, is there a written
threat of an action, suit, proceeding, claim, arbitration or investigation
against Xxxxxx or any of its subsidiaries which would have a Material Adverse
Effect on Xxxxxx, or which in any manner challenges or seeks to prevent, enjoin,
alter or delay any of the transactions contemplated by this Agreement.
3.11 Brokers' and Finders' Fees. Xxxxxx has not incurred, nor will it
incur, directly or indirectly, any liability for brokerage or finders' fees or
agents' commissions or any similar charges in connection with this Agreement or
any transaction contemplated hereby.
3.12 Employee Benefit Plans.
----------------------
(a) With respect to each material employee benefit plan, program,
arrangement and contract (including, without limitation, any "employee benefit
plan" as defined in Section 3(3) of ERISA) maintained or contributed to by
Xxxxxx or any ERISA Affiliate thereof which is under common control with Xxxxxx
within the meaning of Section 414 of the Code (the "Xxxxxx Employee Plans"),
Xxxxxx has made available to Metraplex a true and complete copy of, to the
extent applicable, (i) such Xxxxxx Employee Plan, (ii) the most recent annual
report (Form 5500), (iii) each trust agreement related to such Xxxxxx Employee
Plan, (iv) the most recent summary plan description for each Xxxxxx Employee
Plan for which such a description is required, (v) the most recent actuarial
report relating to any Xxxxxx Employee Plan subject to Title IV of ERISA and
(vi) the most recent IRS determination letter issued with respect to any Xxxxxx
Employee Plan.
(b) Each Xxxxxx Employee Plan which is intended to be qualified under
Section 401(a) of the Code has received a favorable determination from the IRS
covering the provisions of the Tax Reform Act of 1986 stating that such Xxxxxx
Employee Plan is so qualified and nothing has occurred since the date of such
letter that could reasonably be expected to affect the qualified status of such
plan. Each Xxxxxx Employee Plan has been operated in all material respects in
accordance with its terms and the requirements of applicable law. Neither Xxxxxx
nor any ERISA Affiliate of Xxxxxx has incurred or is reasonably expected to
incur any material liability under Title IV of ERISA in connection with any
Xxxxxx Employee Plan.
(c) Neither Xxxxxx nor any ERISA Affiliate thereof has withdrawn in a
complete or partial withdrawal from any multi-employer plan within the meaning
of Section 4001(a)(3) of ERISA prior to the Effective Time. Neither Xxxxxx nor
any ERISA Affiliate thereof has contributed to or been obligated to contribute
to any multi-employer plan within the meaning of Section 4001(a)(3) of ERISA.
3.13 Absence of Liens and Encumbrances. Xxxxxx and each of its subsidiaries
has good and valid title to, or, in the case of leased properties and assets,
valid leasehold interests in, all of its material tangible properties and
assets, real, personal and mixed, used in its business, free and clear of any
liens or encumbrances except as reflected in the Xxxxxx Financials and except
for liens for taxes not yet due and payable and such imperfections of title and
encumbrances, if any, which would not have a Material Adverse Effect on Xxxxxx.
3.14 Environmental Matters.
---------------------
(a) Hazardous Material. Except as would not have a Material Adverse
Effect on Xxxxxx, no underground storage tanks and no Hazardous Materials (but
excluding office and janitorial supplies) are present in the soil, ground water,
building materials or ambient air of any real property currently occupied by
Xxxxxx and its subsidiaries, as a result of the deliberate actions of Xxxxxx or
any of its subsidiaries, and neither Xxxxxx nor any of its subsidiaries has
received any notice that it is allegedly liable for the presence of Hazardous
Materials in, on or under any other property, including the land and the
improvements, ground water and surface water thereof, that Xxxxxx or its
subsidiaries has at any time owned, operated, occupied or leased.
(b) Hazardous Materials Activities. Except as would not have a
Material Adverse Effect on Xxxxxx, neither Xxxxxx nor any of its subsidiaries
has transported, stored, used, manufactured, disposed of, released or exposed
its employees or others to Hazardous Materials in violation of any law in effect
on or before the Closing Date, nor has Xxxxxx or any of its subsidiaries engaged
in any Hazardous Materials Activities in violation of any rule, regulation,
treaty or statute promulgated by any Governmental Entity in effect prior to or
as of the date hereof to prohibit, regulate or control Hazardous Materials or
any Hazardous Material Activity.
(c) Permits. Xxxxxx and its subsidiaries currently hold all
environmental approvals, permits, licenses, clearances and consents (the "Xxxxxx
Environmental Permits") necessary for the conduct of Xxxxxx'x and its
subsidiaries' Hazardous Material Activities as currently conducted and other
businesses of Xxxxxx and its subsidiaries as such activities and businesses are
currently being conducted, except where the failure to so hold would not have a
Material Adverse Effect on Xxxxxx.
(d) Environmental Liabilities. No material action, proceeding,
revocation proceeding, amendment procedure, writ, injunction or claim is
pending, or to Xxxxxx'x knowledge, threatened concerning any Xxxxxx
Environmental Permit or any Hazardous Materials Activity of Xxxxxx or any of its
subsidiaries. Xxxxxx is not aware of any fact or circumstance which could
involve Xxxxxx or any of its subsidiaries in any environmental litigation or
impose upon Xxxxxx or any of its subsidiaries any environmental liability that
would have a Material Adverse Effect on Xxxxxx.
3.15 Labor Matters. To Xxxxxx'x knowledge, there are no activities or
proceedings of any labor union to organize any employees of Xxxxxx or any of its
subsidiaries and there are no strikes, or material slowdowns, work stoppages or
lockouts, or threats thereof by or with respect to any employees of Xxxxxx or
any of its subsidiaries. Xxxxxx and its subsidiaries are and have been in
compliance with all applicable laws regarding employment practices, terms and
conditions of employment, and wages and hours (including, without limitation,
ERISA, WARN or any similar state or local law), except for any noncompliance
that would not have a Material Adverse Effect on Xxxxxx.
3.16 Agreements, Contracts and Commitments. Except as set forth in the
Xxxxxx Schedules, neither Xxxxxx nor any of its subsidiaries is a party to or is
bound by:
(a) any collective bargaining agreements;
(b) any bonus, deferred compensation, incentive compensation, pension,
profit-sharing or retirement plans, or any other employee benefit plans or
arrangements;
(c) any employment or consulting agreement, contract or commitment
with any officer or director level employee, not terminable by Xxxxxx or any of
its subsidiaries on thirty (30) days notice without liability, except to the
extent general principles of wrongful termination law may limit Xxxxxx'x or any
of its subsidiaries' ability to terminate employees at will;
(d) any agreement or plan, including, without limitation, any stock
option plan, stock appreciation right plan or stock purchase plan, any of the
benefits of which will be increased, or the vesting of benefits of which will be
accelerated, by the occurrence of any of the transactions contemplated by this
Agreement or the value of any of the benefits of which will be calculated on the
basis of any of the transactions contemplated by this Agreement;
(e) any agreement of indemnification or guaranty not entered into in
the ordinary course of business other than indemnification agreements between
Xxxxxx or any of its subsidiaries and any of its officers or directors;
(f) any agreement, contract or commitment containing any covenant
limiting the freedom of Xxxxxx or any of its subsidiaries to engage in any line
of business or compete with any person;
(g) any agreement, contract or commitment relating to capital
expenditures and involving future obligations in excess of $10,000 and not
cancelable without penalty;
(h) any agreement, contract or commitment currently in force relating
to the disposition or acquisition of assets not in the ordinary course of
business or any ownership interest in any corporation, partnership, joint
venture or other business enterprise;
(i) any mortgages, indentures, loans or credit agreements, security
agreements or other agreements or instruments relating to the borrowing of money
or extension of credit;
(j) any joint marketing or development agreement;
(k) any distribution agreement (identifying any that contain
exclusivity provisions); or
(l) any other agreement, contract or commitment (excluding real and
personal property leases) which involves payment by Xxxxxx or any of its
subsidiaries under any such agreement, contract or commitment of $10,000 or more
in the aggregate and is not cancelable without penalty within thirty (30) days.
Neither Xxxxxx nor any of its subsidiaries, nor to Xxxxxx'x knowledge any
other party to an Xxxxxx Contract (as defined below), has breached, violated or
defaulted under, or received notice that it has breached violated or defaulted
under, any of the material terms or conditions of any of the agreements,
contracts or commitments to which Xxxxxx is a party or by which it is bound of
the type described in clauses (a) through (l) above (any such agreement,
contract or commitment, an "Xxxxxx Contract") in such a manner as would permit
any other party to cancel or terminate any such Xxxxxx Contract, or would permit
any other party to seek damages, which would have a Material Adverse Effect on
Xxxxxx.
3.17 Change of Control Payments. There are no plans or agreements pursuant
to which any material amounts may become payable (whether currently or in the
future) to current or former officers or directors of Xxxxxx as a result of or
in connection with the Merger.
3.18 Minute Books. The minute books of Xxxxxx made available to counsel for
Metraplex are the only minute books of Xxxxxx and contain a reasonably accurate
summary, in all material respects, of all meetings of directors (or committees
thereof) and stockholders or actions by written consent since the time of
incorporation of Xxxxxx.
3.19 Board Approval. The Board of Directors of Xxxxxx and Merger Sub have,
as of the date of this Agreement, determined that the Merger is fair to and in
the best interests of Xxxxxx and Merger Sub and their stockholders.
ARTICLE IV
CONDUCT PRIOR TO THE EFFECTIVE TIME
4.1 Conduct of Business. During the period from the date of this Agreement
and continuing until the earlier of the termination of this Agreement pursuant
to its terms or the Effective Time, Metraplex (which for the purposes of this
Article 4 shall include Metraplex and each of its subsidiaries) and Xxxxxx
(which for the purposes of this Article 4 shall include Xxxxxx and each of its
subsidiaries) agree, except (i) in the case of Metraplex as provided in Article
4 of the Metraplex Schedules and in the case of Xxxxxx as provided in Article 4
of the Xxxxxx Schedules, or (ii) to the extent that the other party shall
otherwise consent in writing, to carry on its business diligently and in
accordance with good commercial practice and to carry on its business in the
usual, regular and ordinary course, in substantially the same manner as
heretofore conducted, to pay its debts and taxes when due subject to good faith
disputes over such debts or taxes, to pay or perform other material obligations
when due, and use its commercially reasonable efforts consistent with past
practices and policies to preserve intact its present business organization,
keep available the services of its present officers and employees and preserve
its relationships with customers, suppliers, distributors, licensors, licensees,
and others with which it has business dealings. In furtherance of the foregoing
and subject to applicable law, Metraplex and Xxxxxx agree to confer, as promptly
as practicable, prior to taking any material actions or making any material
management decisions with respect to the conduct of business. In addition,
except in the case of Metraplex as provided in Article 4 of the Metraplex
Schedules and in the case of Xxxxxx as provided in Article 4 of the Xxxxxx
Schedules, without the prior written consent of the other, not to be
unreasonably withheld, neither Metraplex nor Xxxxxx shall do any of the
following, and neither Metraplex nor Xxxxxx shall permit its subsidiaries to do
any of the following:
(a) Waive any stock repurchase rights, accelerate, amend or change the
period of exercisability of options or restricted stock, or reprice options
granted under any employee, consultant or director stock plans or authorize cash
payments in exchange for any options granted under any of such plans;
(b) Enter into any material partnership arrangements, joint
development agreements or strategic alliances;
(c) Grant any severance or termination pay to any officer or employee
except payments in amounts consistent with policies and past practices or
pursuant to written agreements outstanding, or policies existing, on the date
hereof and as previously disclosed in writing to the other, or adopt any new
severance plan;
(d) Transfer or license to any person or entity or otherwise extend,
amend or modify in any material respect any rights to the Metraplex IP Rights or
the Xxxxxx IP Rights, as the case may be, or enter into grants to future patent
rights, other than in the ordinary course of business;
(e) Declare or pay any dividends on or make any other distributions
(whether in cash, stock or property) in respect of any capital stock or split,
combine or reclassify any capital stock or issue or authorize the issuance of
any other securities in respect of, in lieu of or in substitution for any
capital stock;
(f) Repurchase or otherwise acquire, directly or indirectly, any
shares of capital stock (i) except pursuant to rights of repurchase of any such
shares under any employee, consultant or director stock plan, and (ii) for the
repurchase by Xxxxxx of up to 300,000 shares of Xxxxxx Common Stock pursuant to
a stock buy-back program announced on March 5, 1997;
(g) Issue, deliver, sell, authorize or propose the issuance, delivery
or sale of, any shares of capital stock or any securities convertible into
shares of capital stock, or subscriptions, rights, warrants or options to
acquire and shares of capital stock or any securities convertible into shares of
capital stock, or enter into other agreements or commitments of any character
obligating it to issue any such shares or convertible securities, other than (i)
the issuance of shares of Metraplex Capital Stock or Xxxxxx Common Stock, as the
case may be, pursuant to the exercise of stock options therefor outstanding as
of the date of this Agreement, (ii) options to purchase shares of Metraplex
Capital Stock or Xxxxxx Common Stock, as the case may be, to be granted at fair
market value in the ordinary course of business, consistent with past practice
and in accordance with existing stock option plans, (iii) shares of Metraplex
Capital Stock or Xxxxxx Common Stock, as the case may be, issuable upon the
exercise of the options referred to in clause (ii), (iv) shares of Metraplex
Capital Stock issuable to participants in the Metraplex ESOP consistent with the
terms thereof, and (v) shares of Xxxxxx Common Stock pursuant to the terms
hereof;
(h) Cause, permit or propose any amendments to any charter document or
Bylaw (or similar governing instruments of any subsidiaries);
(i) Acquire or agree to acquire by merging or consolidating with, or
by purchasing any equity interest in or a material portion of the assets of, or
by any other manner, any business or any corporation, partnership interest,
association or other business organization or division thereof, or otherwise
acquire or agree to acquire any assets which are material, individually or in
the aggregate, to the business of Metraplex or Xxxxxx, as the case may be, or
enter into any joint ventures, strategic partnerships or alliances, other than
in the ordinary course of business consistent with past practice.
(j) Sell, lease, license, encumber or otherwise dispose of any
properties or assets which are material, individually or in the aggregate, to
the business of Metraplex or Xxxxxx, as the case may be, except in the ordinary
course of business consistent with past practice;
(k) Incur any indebtedness for borrowed money (other than ordinary
course trade payables or pursuant to existing credit facilities in the ordinary
course of business) or guarantee any such indebtedness or issue or sell any debt
securities or warrants or rights to acquire debt securities of Metraplex or
Xxxxxx, as the case may be, or guarantee any debt securities of others;
(l) Adopt or amend any employee benefit or stock purchase or option
plan, or enter into any employment contract, pay any special bonus or special
remuneration to any director or employee, or increase the salaries or wage rates
of its officers or employees other than in the ordinary course of business,
consistent with past practice;
(m) Pay, discharge or satisfy any claim, liability or obligation
(absolute, accrued, asserted or unasserted, contingent or otherwise), other than
the payment, discharge or satisfaction in the ordinary course of business;
(n) Make any grant of exclusive rights to any third party;
(o) Make any expenditure equal to or exceeding $15,000 except in the
ordinary course of business; or
(p) Agree in writing or otherwise to take any of the actions described
in Article 4 (a) through (o) above.
ARTICLE V
ADDITIONAL AGREEMENTS
5.1 Registration Rights. Upon the delivery of written notice to Xxxxxx by
the holders of a majority of the Xxxxxx Common Stock issued in the Merger,
Xxxxxx will prepare and file with the SEC a Registration Statement with respect
to the Xxxxxx Common Stock, all as more fully set forth in a Registration Rights
Agreement between such holders and Xxxxxx substantially in the form of Exhibit A
hereto.
5.2 Meeting of Metraplex Stockholders. Promptly after the date hereof,
Metraplex will take all action necessary in accordance with Delaware Law and its
Certificate of Incorporation and Bylaws to convene the Metraplex Stockholders'
Meeting to be held as promptly as practicable, and in any event within 15 days
after the date of this Agreement, for the purpose of voting upon this Agreement.
Metraplex will use its commercially reasonable efforts to solicit from its
stockholders proxies in favor of the approval of this Agreement and will take
all other reasonable action necessary or advisable to secure the vote or consent
of its stockholders required by the Delaware General Corporation Law to obtain
such approval (except to the extent permitted by Section 5.4).
5.3 Access to Information; Confidentiality.
--------------------------------------
(a) Each party will afford the other party and its accountants,
counsel and other representatives reasonable access during normal business hours
to the properties, books, records and personnel of the other party during the
period prior to the Effective Time to obtain all information concerning the
business, including the status of product development efforts, properties,
results of operations and personnel of such party, as the other party may
reasonably request. No information or knowledge obtained in any investigation
pursuant to this Section 5.3 will affect or be deemed to modify any
representation or warranty contained herein or the conditions to the obligations
of the parties to consummate the Merger.
(b) The parties acknowledge that Xxxxxx and Metraplex have previously
executed a Confidentiality Agreement (the "Confidentiality Agreement"), which
Confidentiality Agreement will continue in full force and effect in accordance
with its terms, except as is necessary to comply
with the terms of this Agreement.
5.4 Solicitation by Metraplex.
-------------------------
(a) Prior to the approval of this Agreement by the stockholders of
Metraplex at the Metraplex Stockholders' Meeting, Metraplex may, to the extent
the Board of Directors of Metraplex determines, in good faith, after
consultation with outside legal counsel, that the Board's fiduciary duties under
applicable law require it to do so, participate in discussions or negotiations
with, and, subject to the requirements of paragraph (b), below, furnish
information to any person, entity or group after such person, entity or group
has delivered to Metraplex in writing, an unsolicited bona fide Acquisition
Proposal which the Board of Directors of Metraplex in its good faith reasonable
judgment determines, after consultation with its independent financial advisors,
would result in a transaction more favorable to the stockholders of Metraplex
from a financial point of view than the Merger and for which financing, to the
extent required, is then committed or which, in the good faith reasonable
judgment of the Board of Directors of Metraplex (based upon the advice of
independent financial advisors), is reasonably capable of being financed by such
person, entity or group and which is likely to be consummated (a "Metraplex
Superior Proposal"). In addition, in connection with a possible Acquisition
Proposal, Metraplex may refer any third party to this Section 5.4 or make a copy
of this Section 5.4 available to a third party. In the event Metraplex receives
a Metraplex Superior Proposal, nothing contained in this Agreement (but subject
to the terms hereof) will prevent the Board of Directors of Metraplex from
approving such Metraplex Superior Proposal or recommending such Metraplex
Superior Proposal to Metraplex's stockholders, if the Board determines that such
action is required by its fiduciary duties under applicable law; in such case,
the Board of Directors of Metraplex may withdraw, modify or refrain from making
its recommendation concerning the approval of this Agreement; provided, however,
that Metraplex shall not accept or recommend to its stockholders, or enter into
any agreement concerning, a Metraplex Superior Proposal for a period of not less
than 48 hours after Xxxxxx'x receipt of a copy of such Metraplex Superior
Proposal (or a description of the significant terms and conditions thereof, if
not in writing); provided, further, that Metraplex will provide Xxxxxx with no
less than 24 hours' prior written notice of its intention to enter into a letter
of intent with respect to any Acquisition Proposal. For the purposes of this
Agreement, an "Acquisition Proposal" with respect to an entity means any
proposal or offer relating to (i) any merger, consolidation, sale of substantial
assets or similar transactions involving the entity or any subsidiaries of the
entity (other than sales of assets or inventory in the ordinary course of
business or permitted under the terms of this Agreement), (ii) sale of 5% or
more of the outstanding shares of capital stock of the entity (including without
limitation by way of a tender offer or an exchange offer), (iii) the acquisition
by any person of beneficial ownership or a right to acquire beneficial ownership
of, or the formation of any "group" (as defined under Section 13(d) of the
Exchange Act and the rules and regulations thereunder) which beneficially owns,
or has the right to acquire beneficial ownership of, 5% or more of the then
outstanding shares of capital stock of the entity (except for acquisitions for
passive investment purposes only in circumstances where the person or group
qualifies for and files a Schedule 13G with respect thereto); or (iv) any public
announcement of a proposal, plan or intention to do any of the foregoing or any
agreement to engage in any of the foregoing.
(b) Notwithstanding anything to the contrary in paragraph (a),
Metraplex will not provide any non-public information to a third party unless:
(x) Metraplex provides such non-public information pursuant to a nondisclosure
agreement with terms regarding the protection of confidential information at
least as restrictive as such terms in the Confidentiality Agreement; and (y)
such non-public information is the same information previously delivered to
Xxxxxx. Metraplex will provide Xxxxxx with no less than 24 hours' prior written
notice of its intention to enter into any nondisclosure agreement with any third
party.
5.5 Public Disclosure. Xxxxxx and Metraplex will consult with each other
before issuing any press release or otherwise making any public statement with
respect to the Merger or this Agreement and will not issue any such press
release or make any such public statement prior to such consultation, except as
may be required by law or any listing agreement with a national securities
exchange or Nasdaq. The parties acknowledge that promptly following the
execution and delivery of this Agreement, Xxxxxx will issue a press release with
respect to the Merger and the Agreement.
5.6 Legal Requirements. Each of Xxxxxx, Merger Sub and Metraplex will take
all reasonable actions necessary or desirable to comply promptly with all legal
requirements which may be imposed on them with respect to the consummation of
the transactions contemplated by this Agreement (including furnishing all
information required in connection with approvals of or filings with any
Governmental Entity, and prompt resolution of any litigation prompted hereby)
and will promptly cooperate with and furnish information to any party hereto
necessary in connection with any such requirements imposed upon any of them or
their respective subsidiaries in connection with the consummation of the
transactions contemplated by this Agreement. Xxxxxx will use its commercially
reasonable efforts to take such steps as may be necessary to comply with the
securities and blue sky laws of all jurisdictions which are applicable to the
issuance of Xxxxxx Common Stock pursuant hereto. Metraplex will use its
commercially reasonable efforts to assist Xxxxxx as may be necessary to comply
with the securities and blue sky laws of all jurisdictions which are applicable
in connection with the issuance of Xxxxxx Common Stock pursuant hereto.
5.7 Third Party Consents. As soon as practicable following the date hereof,
Xxxxxx and Metraplex will each use its commercially reasonable efforts to obtain
all material consents, waivers and approvals under any of its or its
subsidiaries' agreements, contracts, licenses or leases required to be obtained
in connection with the consummation of the transactions contemplated hereby.
5.8 FIRPTA. At or prior to the Closing, Metraplex, if requested by Xxxxxx,
shall deliver to the IRS a notice that the Metraplex Capital Stock is not a
"U.S. Real Property Interest" as defined and in accordance with the requirements
of Treasury Regulation Section 1.897-2(h)(2).
5.9 Notification of Certain Matters. Xxxxxx and Merger Sub will give prompt
notice to Metraplex, and Metraplex will give prompt notice to Xxxxxx, of the
occurrence, or failure to occur, of any event, which occurrence or failure to
occur would be reasonably likely to cause (a) any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at any time from the date of this Agreement to the Effective Time, or (b) any
material failure of Xxxxxx and Merger Sub or Metraplex, as the case may be, or
of any officer, director, employee or agent thereof, to comply with or satisfy
any covenant, condition or agreement to be complied with or satisfied by it
under this Agreement. Notwithstanding the above, the delivery of any notice
pursuant to this section will not limit or otherwise affect the remedies
available hereunder to the party receiving such notice.
5.10 Best Efforts and Further Assurances. Subject to the respective rights
and obligations of Xxxxxx and Metraplex under this Agreement, each of the
parties to this Agreement will use its best efforts to effectuate the Merger and
the other transactions contemplated hereby and to fulfill and cause to be
fulfilled the conditions to closing under this Agreement. Each party hereto, at
the reasonable request of another party hereto, will execute and deliver such
other instruments and do and perform such other acts and things as may be
necessary or desirable for effecting completely the consummation of the
transactions contemplated hereby.
5.11 Tax-Free Reorganization. Xxxxxx and Metraplex will each use its
commercially reasonable efforts to cause the Merger to be treated as a
reorganization within the meaning of Section 368 of the Code. Xxxxxx and
Metraplex will each make available to the other party and their respective legal
counsel copies of all returns requested by the other party.
5.12 Metraplex Employee Benefits. Subject to being able to do so
consistently with applicable laws, after the Effective Date, Xxxxxx will use its
commercially reasonable efforts to cause the Surviving Corporation to provide to
the employees of Metraplex employee benefits comparable to those under the
existing Metraplex plans generally available to Metraplex employees.
5.13 Repurchase of Xxxxxx Common Stock. Each holder of the Xxxxxx Common
Stock issued in the Merger, but not any transferee of such holder, other than
immediate family members, grandchildren and trusts which have as beneficiaries
immediate family members, including grandchildren who have been previously
gifted such Common Stock, shall have the right, in respect of any shares of
Xxxxxx Common Stock not sold pursuant to the Registration Statement described in
Section 5.1 hereof, to one demand only that Xxxxxx repurchase all of such shares
of Xxxxxx Common Stock and Xxxxxx shall be required to repurchase all of such
shares, upon the delivery by such holder to Xxxxxx of no less than thirty (30)
days prior written notice, as follows:
(a) on the third anniversary of the Effective Time, at a price of
$12.00 per share of Xxxxxx Common Stock; or
(b) on the fourth anniversary of the Effective Time, at a price of
$12.75 per share of Xxxxxx Common Stock; or
(c) on the fifth anniversary of the Effective Time, at a price of
$13.50 per share of Xxxxxx Common Stock.
The purchase price for the Xxxxxx Common Stock repurchased pursuant to this
Section 5.13 shall be paid in full on the third, fourth or fifth anniversary of
the Effective Time, as the case may be. Xxxxxx'x obligations under this Section
5.13 shall be evidenced by the Supplemental Agreement attached hereto as Exhibit
B to be executed and delivered by Xxxxxx at Closing.
5.14 Employment Agreement. At or prior to the Closing, Xxxxxx or Metraplex
will enter into an Employment Agreement with Xxxxx Xxxxxxxxx, substantially in
the form attached hereto as Exhibit C.
ARTICLE VI
CONDITIONS TO THE MERGER
6.1 Conditions to Obligations of Each Party to Effect the Merger. The
respective obligations of each party to this Agreement to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
following conditions:
(a) Stockholder and Board of Directors Approval. This Agreement shall
have been approved and adopted, and the Merger shall have been duly approved, by
the requisite vote under applicable law by the stockholders of Metraplex within
20 days after the date of this Agreement..
(b) No Order. No Governmental Entity shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation, executive order,
decree, injunction or other order (whether temporary, preliminary or permanent)
which is in effect and which has the effect of making the Merger illegal or
otherwise prohibiting consummation of the Merger.
6.2 Additional Conditions to Obligations of Metraplex. The obligations of
Metraplex to consummate and effect the Merger shall be subject to the
satisfaction at or prior to the Effective Time of each of the following
conditions, any of which may be waived, in writing, exclusively by Metraplex:
(a) Representations and Warranties. The representations and warranties
of Xxxxxx and Merger Sub contained in this Agreement shall be true and correct
on and as of the Effective Time, except for changes contemplated by this
Agreement and except for those representations and warranties which address
matters only as of a particular date (which shall remain true and correct as of
such particular date), with the same force and effect as if made on and as of
the Effective Time, except, in all such cases where the failure to be so true
and correct, would not have a Material Adverse Effect on Xxxxxx; and Metraplex
shall have received a certificate to such effect signed on behalf of Xxxxxx by
the Chief Financial Officer of Xxxxxx.
(b) Agreements and Covenants. Xxxxxx and Merger Sub shall have
performed or complied in all material respects with all agreements and covenants
required by this Agreement to be performed or complied with by them on or prior
to the Effective Time, and Metraplex shall have received a certificate to such
effect signed on behalf of Xxxxxx by the Chief Financial Officer of Xxxxxx;
(c) Material Adverse Effect. No Material Adverse Effect with respect
to Xxxxxx shall have occurred since the date of this Agreement;
(d) Legal Opinion. Metraplex shall have received a legal opinion from
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C., counsel to Xxxxxx, in a form attached
hereto as Exhibit D;
(e) Xxxxxx will cause all of the obligations of Metraplex to
NationsBank and the subdebt holders to be paid at or promptly after Closing; and
(f) Xxxxxx will execute and deliver at Closing the Registration Rights
Agreement, Supplemental Agreement and Employment Agreement.
6.3 Additional Conditions to the Obligations of Xxxxxx and Merger Sub. The
obligations of Xxxxxx and Merger Sub to consummate and effect the Merger shall
be subject to the satisfaction at or prior to the Effective Time of each of the
following conditions, any of which may be waived, in writing, exclusively by
Xxxxxx:
(a) Representations and Warranties. The representations and warranties
of Metraplex contained in this Agreement shall be true and correct on and as of
the Effective Time, except for changes contemplated by this Agreement and except
for those representations and warranties which address matters only as of a
particular date (which shall remain true and correct as of such particular
date), with the same force and effect as if made on and as of the Effective
Time, except, in all such cases where the failure to be so true and correct,
would not have a Material Adverse Effect on Metraplex; and Xxxxxx and Merger Sub
shall have received a certificate to such effect signed on behalf of Metraplex
by the Chief Executive Officer of Metraplex;
(b) Agreements and Covenants. Metraplex shall have performed or
complied in all material respects with all agreements and covenants required by
this Agreement to be performed or complied with by it on or prior to the
Effective Time, and the Xxxxxx shall have received a certificate to such effect
signed on behalf of Metraplex by the Chief Executive Officer of Metraplex;
(c) Material Adverse Effect. No Material Adverse Effect with respect
to Metraplex shall have occurred since the date of this Agreement;
(d) Legal Opinion. Xxxxxx shall have received a legal opinion from
Offit & Xxxxxx, P. C., counsel to Metraplex, in the form attached hereto as
Exhibit E.
(e) Termination of Metraplex ESOP. Metraplex's ESOP shall have been
terminated and the parties shall have received an opinion from ESOP's legal
counsel and valuation from ESOP'S financial counsel, in form satisfactory to the
parties, including a determination that Xxxxxx, and its officers, directors,
agents and employees have no liability to the ESOP's participants as a result of
the termination, or otherwise.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time of the Merger, whether before or after approval of the Merger by
the stockholders of Merger Sub and Metraplex:
(a) by mutual written consent duly authorized by the Boards of Directors of
Xxxxxx and Metraplex;
(b) by either Metraplex or Xxxxxx if the Merger shall not have been
consummated by July 31, 1997; provided, however, that the right to terminate
this Agreement under this Section 7.1(b) shall not be available to any party
whose action or failure to act has been a principal cause of or resulted in the
failure of the Merger to occur on or before such date and such action or failure
to act constitutes a breach of this Agreement;
(c) by either Metraplex or Xxxxxx if a court of competent jurisdiction
or governmental, regulatory or administrative agency or commission shall have
issued an order, decree or ruling or taken any other action (an "Order"), in any
case having the effect of permanently restraining, enjoining or otherwise
prohibiting the Merger, which order, decree or ruling is final and
nonappealable;
(d) by either Metraplex or Xxxxxx if the required approvals of the
stockholders of Metraplex contemplated by this Agreement shall not have been
obtained by reason of the failure to obtain the required vote upon a vote taken
at a meeting of stockholders duly convened therefor or at any adjournment
thereof (provided that the right to terminate this Agreement under this Section
7.1(d) shall not be available to any party where the failure to obtain
stockholder approval of such party shall have been caused by the action or
failure to act of such party in breach of this Agreement);
(e) by either Metraplex or Xxxxxx, if Metraplex shall have accepted a
Metraplex Superior Proposal or by Xxxxxx if the Metraplex Board of Directors
recommends a Metraplex Superior Proposal to the stockholders of Metraplex;
(f) by Xxxxxx, if the Board of Directors of Metraplex shall have
withheld, withdrawn or modified in a manner adverse to Xxxxxx its recommendation
in favor of approving the Merger;
(g) by Metraplex, if the Board of Directors of Xxxxxx shall have
withheld, withdrawn or modified in a manner adverse to Metraplex its
recommendation in favor of the Merger;
(h) by Metraplex, upon a material breach of any representation,
warranty, covenant or agreement on the part of Xxxxxx set forth in this
Agreement, or if any representation or warranty of Xxxxxx shall have become
untrue in any material respect, in either case such that the conditions set
forth in Section 6.2(a) or Section 6.2(b) would not be satisfied as of the time
of such breach or as of the time such representation or warranty shall have
become untrue, provided that if such inaccuracy in Xxxxxx'x representations and
warranties or breach by Xxxxxx is curable by Xxxxxx through the exercise of its
commercially reasonable efforts within fifteen (15) days of the time such
representation or warranty shall have become untrue or such breach, then
Metraplex may not terminate this Agreement under this Section 7.1(h) during such
fifteen-day period provided Xxxxxx continues to exercise such commercially
reasonable efforts;
(i) by Xxxxxx, upon a material breach of any representation, warranty,
covenant or agreement on the part of Metraplex set forth in this Agreement, or
if any representation or warranty of Metraplex shall have become untrue in any
material respect, in either case such that the conditions set forth in Section
6.3(a) or Section 6.3(b) would not be satisfied as of the time of such breach or
as of the time such representation or warranty shall have become untrue,
provided, that if such inaccuracy in the Metraplex's representations and
warranties or breach by Metraplex is curable by Metraplex through the exercise
of its commercially reasonable efforts within fifteen (15) days of the time such
representation or warranty shall have become untrue or such breach, then Xxxxxx
may not terminate this Agreement under this Section 7.1(i) during such
fifteen-day period provided Metraplex continues to exercise such commercially
reasonable efforts;
(j) by Metraplex, if there shall have occurred any Material Adverse
Effect with respect to Xxxxxx or Merger Sub since the date of this Agreement;
(k) by Xxxxxx, if there shall have occurred any Material Adverse
Effect with respect to Metraplex since the date of this Agreement.
7.2 Notice of Termination; Effect of Termination.
--------------------------------------------
Any termination of this Agreement under Section 7.1 above will be
effective immediately upon the delivery of written notice of the terminating
party to the other parties hereto. In the event of the termination of this
Agreement as provided in Section 7.1, this Agreement shall be of no further
force or effect. Nothing herein shall relieve any party from liability for any
willful breach of this Agreement. No termination of this Agreement shall affect
the obligations of the parties contained in the Confidentiality Agreement, all
of which obligations shall survive termination of this Agreement in accordance
with their terms.
7.3 Fees and Expenses.
-----------------
Except as set forth in this Section 7.3, all fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses, whether or not the
Merger is consummated. Xxxxxx shall cause to be paid within 5 days of closing,
the costs of Metraplex legal counsel, the Metraplex ESOP's legal counsel, legal
counsel advising on the tax treatment of the Merger, and Metraplex and Metraplex
ESOP's financial and accounting fees.
7.4 Amendment. Subject to applicable law, this Agreement may be amended by
the parties hereto at any time by execution of an instrument in writing signed
on behalf of each of the parties hereto.
7.5 Extension; Waiver. At any time prior to the Effective Time any party
hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-Survival of Representations and Warranties. The representations and
warranties of Metraplex, Xxxxxx and Merger Sub contained in this Agreement shall
survive for eighteen months from the Effective Time, and covenants contained
herein requiring performance shall survive the Effective Time until completion
of said performance.
8.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
delivery service, or sent via telecopy (receipt confirmed) to the parties at the
following addresses or telecopy numbers (or at such other address or telecopy
numbers for a party as shall be specified by like notice):
(a) if to Xxxxxx or Merger Sub, to:
Xxxxxx Industries, Inc.
00 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Fax: (000)000-0000
Attn.: Xxx X. Xxxxx
Chairman of the Board
with a copy to:
Blau, Kramer, Wactlar & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxxxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
(b) if to Metraplex, to:
Metraplex Corporation
0000 Xxx Xxxxxxxxxx Xxx
Xxxxxxxxx, Xxxxxxxx 00000-0000
Fax: (000 ) 000-0000
Attn.: Xxxxx X. Xxxxxxxxx
President and Chief Executive Officer
with a copy to:
Xxxxx X. Xxxxxxx, Esq.
Offitt & Xxxxxx, P.A.
0 Xxxx Xxxxxx Xxxxx
Xxxxx 000
Xxxxxx Xxxxx, Xxxxxxxx 00000
Telephone No. (000) 000-0000
Telecopy No. (000) 000-0000
8.3 Interpretation; Knowledge.
-------------------------
(a) When a reference is made in this Agreement to Exhibits, such
reference shall be to an Exhibit to this Agreement unless otherwise indicated.
The words "include," "includes" and "including" when used herein shall be deemed
in each case to be followed by the words "without limitation." The table of
contents and headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. When reference is made herein to "the business of" an entity, such
reference shall be deemed to include the business of all direct and indirect
subsidiaries of such entity. Reference to the subsidiaries of an entity shall be
deemed to include all direct and indirect subsidiaries of such entity.
(b) For purposes of this Agreement, the term "knowledge" means, with
respect to any matter in question, that the executive officers of Metraplex or
Xxxxxx, as the case may be, have actual knowledge of such matter.
8.4 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
8.5 Entire Agreement. This Agreement and the documents and instruments and
other agreements among the parties hereto as contemplated by or referred to
herein, including the Metraplex Schedules and the Xxxxxx Schedules (a)
constitute the entire agreement among the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings, both
written and oral, among the parties with respect to the subject matter hereof,
it being understood that the Confidentiality Agreement shall continue in full
force and effect until the Closing and shall survive any termination of this
Agreement; and (b) are not intended to confer upon any other person any rights
or remedies hereunder, except as set forth herein.
8.6 Severability. In the event that any provision of this Agreement or the
application thereof, becomes or is declared by a court of competent jurisdiction
to be illegal, void or unenforceable, the remainder of this Agreement will
continue in full force and effect and the application of such provision to other
persons or circumstances will be interpreted so as reasonably to effect the
intent of the parties hereto. The parties further agree to replace such void or
unenforceable provision of this Agreement with a valid and enforceable provision
that will achieve, to the extent possible, the economic, business and other
purposes of such void or unenforceable provision.
8.7 Other Remedies; Specific Performance. Except as otherwise provided
herein, any and all remedies herein expressly conferred upon a party will be
deemed cumulative with and not exclusive of any other remedy conferred hereby,
or by law or equity upon such party, and the exercise by a party of any one
remedy will not preclude the exercise of any other remedy. The parties hereto
agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
8.8 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of law thereof.
Each of the parties hereto irrevocably consents to the exclusive jurisdiction of
any state or federal court within the State of Delaware, in connection with any
matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner authorized by
the laws of the State of Delaware for such persons and waives and covenants not
to assert or plead any objection which they might otherwise have to such
jurisdiction and such process.
8.9 Rules of Construction. The parties hereto agree that they have been
represented by counsel during the negotiation and execution of this Agreement
and, therefore, waive the application of any law, regulation, holding or rule of
construction providing that ambiguities in an agreement or other document will
be construed against the party drafting such agreement or document.
8.10 Assignment. 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.
IN WITNESS WHEREOF, Xxxxxx, Merger Sub, and Metraplex have caused this
Agreement to be signed by themselves or their duly authorized respective
officers, all as of the date first written above.
XXXXXX INDUSTRIES, INC.
By: /s/ Xxxxx Xxxx
----------------------------------------
Name: Xxxxx Xxxx
------------------------------------
Title: President
------------------------------------
METRAPLEX CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
------------------------------------
Title: President and CEO
------------------------------------
METRAPLEX ACQUISITION CORP.
By: /s/ Xxxxx Xxxx
---------------------------------------
Name: Xxxxx Xxxx
-----------------------------------
Title: President
-----------------------------------
AMENDMENT TO AGREEMENT AND
--------------------------
PLAN OF REORGANIZATION
----------------------
This Amendment to Agreement and Plan of Reorganization (the "Amendment") is
made this 22nd day of July, 1997 by and among Xxxxxx Industries, Inc., a
Delaware corporation ("Xxxxxx"), Metraplex Acquisition Corp., a Delaware
corporation and a wholly owned subsidiary of Xxxxxx ("Merger Sub"), and
Metraplex Corporation, a Delaware corporation ("Metraplex").
WHEREAS, the parties hereto executed an Agreement and Plan of
Reorganization dated July 8, 1997 (the "Agreement");
WHEREAS, the parties hereto desire to amend the Agreement as set forth
herein.
NOW, THEREFORE, in consideration of the foregoing recitals and for other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Definitions. All capitalized terms used by not defined herein shall have
the meaning set forth in the Agreement.
2. Closing Date. The parties acknowledge and agree that the Closing Date is
July 22, 1997.
3. Effective Time. The parties agree that the Effective Time shall be
August 4, 1997 and Section 1.2 of the Agreement is hereby modified accordingly.
4. Metraplex Capital Structure. The first sentence of Section 2.2 of the
Agreement is hereby modified to read as follows:
The authorized capital stock of Metraplex consists of 5,000,000 shares
of Common Stock par value $.01 per share of which there were 702,047 shares
issued and outstanding as of June 1, 1997, not including the 121,216 shares
which have not been allocated under the Metraplex ESOP; as of the Effective Time
an additional 11,233 shares of Common Stock shall be issued to the Metraplex
ESOP and allocated to the accounts of participants in the Metraplex ESOP.
5. Conditions to the Merger. Metraplex agrees that the condition set forth
in Section 6.2 (c) of the Agreement be and is hereby waived. Xxxxxx agrees that
the condition set forth in Section 6.3 (c) of the Agreement be and is hereby
waived.
6. Termination. The parties agree that, as a result of the Closing
occurring on the date hereof and the parties agreement that the Effective Date
of the Closing shall be August 4, 1997, Section 7.1(b) of the Agreement is
hereby deleted in its entirety. The parties further agree that Sections 7.1(j)
and (k) are hereby deleted in their entireties.
7. Miscellaneous. Except as specifically set forth herein, the Agreement
and its terms shall remain in full force and effect in accordance with its
provisions.
IN WITNESS WHEREOF, Xxxxxx, Merger Sub and Metraplex have caused this
Amendment to be signed by themselves or their duly authorized respective
officers, all as of the date first written above.
XXXXXX INDUSTRIES, INC.
___________________________ By: /s/Xxxxx Xxxx
--------------------------------------
Xxxxx Xxxx, President
METRAPLEX CORPORATION
____________________________ By: /s/Xxxxx X. Xxxxxxxxx
--------------------------------------
Xxxxx X. Xxxxxxxxx, President and CEO
METRAPLEX ACQUISITION CORP.
_____________________________ By: /s/Xxxxx Xxxx
-------------------------------------
Xxxxx Xxxx, President
