FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.2
FIRST
AMENDMENT
TO
AGREEMENT
AND PLAN OF MERGER
THIS
AMENDMENT (this “Amendment”)
to the
Agreement and Plan of Merger (the “Merger
Agreement”),
dated
as of February 19, 2008, by and among Rhapsody Acquisition Corp., a Delaware
corporation (“Delcorp”),
Primoris Corporation, a Nevada corporation (the “Company”),
and
each of the persons listed under the caption “Signing Shareholders” on the
signature page thereto (the “Signing
Shareholders”)
is
entered into this 15th day of May, 2008, by and among Delcorp, the Company
and
the Signing Shareholders. Capitalized terms used herein without definition
shall
have the meanings ascribed to such terms in the Merger Agreement.
In
consideration of the premises, representations, warranties and agreements
contained herein and in the Merger Agreement, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties agree as follows:
1. Section
5.2
of the
Agreement is hereby deleted in its entirety and replaced with the
following:
5.2 Directors
and Officers of Delcorp After Merger; Voting Agreement.
The
Parties shall take all necessary action so that the persons listed in Schedule
5.2 are elected for a period not exceeding the 2011 annual meeting of the
Surviving Corporation to the positions of officers and directors of Delcorp,
as
set forth therein, to serve in such positions effective immediately after the
Closing. In addition, the person listed in said Schedule 5.2 as
“Observer”
shall
be entitled to attend all meetings of the board of directors as an observer
and
receive all information distributed to the directors until the shorter of (i)
such time as such person shall be elected to the board of directors and (ii)
the
2011 annual meeting of the Surviving Corporation. During the aforesaid period,
at any annual meeting, Delcorp may designate a person acting as an Observer
for
election to the board of directors in place of its then designee and such
designee shall be entitled to be the Observer. If any Person listed in
Schedule 5.2 is unable to serve, the Party appointing such Person shall
designate a successor; provided that, if such designation is to be made after
the Closing, any successor to a Person designated by Delcorp shall be made
by
the Person serving in the capacity of Chairman of Delcorp immediately prior
to
the Closing. Those Signing Shareholders and those stockholders of Delcorp stated
to be parties thereto shall enter into a Voting Agreement in the form of
Exhibit F
on or
before the Closing Date.
2. The
Voting Agreement in substantially the form attached to the Merger Agreement
as
Exhibit
F
is
hereby amended and restated in its entirety in the form attached hereto as
Attachment
I.
3. Except
to
the extent amended by this Amendment, all other terms and conditions of the
Merger Agreement shall remain unmodified and shall continue in full force and
effect.
4. This
Amendment shall be governed by the provisions of Article
X
of the
Merger Agreement as if such provisions were set forth in full
herein.
IN
WITNESS WHEREOF, Delcorp, the Company and the Signing Shareholders have caused
this Amendment to be executed as of the date first written above.
By:/s/
Xxxx Xxxxxxxxx
Xxxx
Xxxxxxxxx, Chairman, CEO and President
PRIMORIS
CORPORATION
By:
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx, Chief Executive Officer
SIGNING
SHAREHOLDERS:
/s/
Xxxxx Xxxxx
Xxxxx
Xxxxx
Xxxxx
Family Trust
By:
/s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx, Trustee
Xxxxx
Family Bypass Trust
By:/s/
Xxxxxx Xxxxx
Xxxxxx
Xxxxx, Trustee
/s/
Xxxx X. Xxxxxxxxxx
Xxxx
X.
Xxxxxxxxxx
Xxxxxxx
Trust
By:/s/
Xxxxx X. Xxxxxxx
Xxxxx
X.
Xxxxxxx, Trustee
/s/
Xxxxxxx X. Xxxxx
Xxxxxxx
X. Xxxxx
2
EXHIBIT
F
VOTING
AGREEMENT, dated as of this [Closing
Date]
(“Agreement”), among each of the persons listed under the caption “Target Group”
on Exhibit A attached hereto (the “Target Group”), each of the persons listed
under the caption “Founders Group” on Exhibit A attached hereto (the “Founders
Group”) and Rhapsody Acquisition Corp., a Delaware corporation (“Delcorp”). Each
of the Target Group and the Founders Group is sometimes referred to herein
as a
“Group.” For purposes of this Agreement, each person who is a member of either
the Target Group or the Founders Group is referred to herein individually as
a
“Stockholder” and collectively as the “Stockholders.” Capitalized terms used but
not defined in this Agreement shall have the meanings ascribed to them in the
Merger Agreement;
WHEREAS,
as of February 19, 2008, each of Delcorp, Primoris Corporation (the “Company”),
a Nevada corporation, and the Signing Shareholders have entered into an
Agreement and Plan of Merger (the “Merger Agreement”) that provides,
inter alia,
upon
the terms and subject to the conditions thereof, for the merger
of
the Company into Delcorp (the “Merger”);
WHEREAS,
as of the date hereof, each Stockholder who is a member of the Founders Group
owns beneficially and of record shares of common stock of Delcorp, par value
$0.0001 per share (“Delcorp Common Stock”), as set forth opposite such
Stockholder’s name on Exhibit A
hereto
(all such shares and any shares of which ownership of record or the power to
vote is hereafter acquired by any of the Stockholders, whether by purchase,
conversion or exercise, prior to the termination of this Agreement being
referred to herein as the “Shares”);
WHEREAS,
at the Effective Time, all shares of Company Common Stock beneficially owned
by
each Stockholder who is a member of the Target Group shall be converted into
the
right to receive and shall be exchanged for his, her or its pro rata portion
of
the shares of Delcorp Common Stock to be issued to the Company’s security
holders as consideration in the Merger; and
WHEREAS,
as a condition to the consummation of the Merger Agreement, the Stockholders
have agreed, severally, to enter into this Agreement;
NOW,
THEREFORE, in consideration of the premises and of the mutual agreements and
covenants set forth herein and in the Merger Agreement, and intending to be
legally bound hereby, the parties hereto hereby agree as follows:
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ARTICLE
I
VOTING
OF
SHARES FOR DIRECTORS
SECTION
1.01 Vote
in Favor of the Directors.
During
the term of this Agreement, each Stockholder agrees to vote the Shares of
Delcorp Common Stock he, she or it now owns, or will hereafter acquire prior
to
the termination of this Agreement, for the election and re-election of the
following persons as directors of Delcorp:1
(a) Five
(5)
persons, (i) three (3) of whom shall at all times be “independent directors,”
within the meaning of the NASDAQ rules, and (ii) all of whom shall be designees
of the Company; with two (2) of such designees to stand for election or
re-election in 2009 (“Class A Directors”), who shall initially be Xxxxx Xxxxx
and __________; one (1) of such designees to stand for election or re-election
in 2010 (“Class B Directors”), who shall initially be _________ and who will be
an “independent director,” and two (2) of such designees, to stand for election
or re-election in 2011 (“Class C Directors”), who shall initially be designated
prior to the Closing Date, each of whom shall be an independent director
(collectively, the “Target Directors”);
(b) Two
(2)
persons all of whom shall be designees of the Founders Group, which designee
initially shall be __________, who shall be elected as a Class __ Director,
and
________ who shall be elected as a Class __ Director, (the “Founders Directors,”
and together with the Target Directors, the “Director Designees”);
and
(c) Xxxxx
Xxxxx is to be elected and serve as Chairman of the Board of
Directors.
(d) The
Founders Group may also designate a person to serve as an observer at all
meetings of the Board of Directors and committees thereof, who shall be given
all documents and other information furnished to the members of the Board of
Directors at the time such information is so furnished (the “Observer”).
At
the election of the Founders Group, the person then acting as Observer shall
be
designated to serve all or a part of any unexpired term of the person designated
by the Founders Group to serve as a Class __ Director, in which event the person
designated by the Founders Group to serve as a Class __ Director shall serve
as
the Observer.
Neither
the Stockholders, nor any of the officers, directors, stockholders, members,
managers, partners, employees or agents of any Stockholder, makes any
representation or warranty as to the fitness or competence of any Director
Designee to serve on the Board of Directors by virtue of such party’s execution
of this Agreement or by the act of such party in designating or voting for
such
Director Designee pursuant to this Agreement.
Any
Director Designee may be removed from the Board of Directors in the manner
allowed by law and Delcorp’s governing documents except that each Stockholder
agrees that he, she or it will not, as a stockholder, vote for the removal
of
any director who is a member of a Group of which such Stockholder is not a
member. If a director is removed or resigns from office, the remaining directors
of the Group of which the vacating director is a member shall be entitled to
appoint the successor.
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1
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Parties
are to designate their nominees, the number to stand for election
in each
class and who shall be independent directors. It is assumed there
will be
no annual meeting in 2008, as election of directors will be presented
at
the special meeting called to approve the
merger.
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4
SECTION
1.02 Vote
in Favor of Stock Option Plan.
During
the term of this Agreement, each Stockholder agrees to vote the Shares of
Delcorp Common Stock he, she or it now owns, or hereafter acquires prior to
the
termination of this Agreement, in favor of the adoption of the Delcorp Plan
(as
defined in the Merger Agreement).
SECTION
1.03 Obligations
of Delcorp.
Delcorp
shall take all necessary and desirable actions within its control during the
term of this Agreement to provide for the Delcorp Board of Directors to be
comprised of seven (7) members and to enable the election to the Board of
Directors of the Director Designees.
SECTION
1.04 Term
of Agreement.
The
rights and obligations of the Stockholders pursuant to this Agreement shall
terminate immediately prior to the election or re-election of directors at
the
annual meeting of Delcorp that will be held in 2011.
SECTION
1.05 Obligations
as Director and/or Officer.
Nothing
in this Agreement shall be deemed to limit or restrict any director or officer
of Delcorp from acting in his or her capacity as such director or officer or
from exercising his or her fiduciary duties and responsibilities, it being
agreed and understood that this Agreement shall apply to each Stockholder solely
in his or her capacity as a stockholder of Delcorp and shall not apply to his
or
her actions, judgments or decisions as a director or officer of Delcorp if
he or
she is such a director or officer.
SECTION
1.06 Transfer
of Shares.If
a
member of the Target Group desires to transfer his, her or its Shares to a
permitted transferee pursuant to the Lock-Up Agreement of even date herewith
executed by such member, or if a member of the Founders Group desires to
transfer his or its shares to a permitted transferee pursuant to the Stock
Escrow Agreement dated as of October [3], 2006, it shall be a condition to
such
transfer that the transferee agree to be bound by the provisions of this
Agreement. This Agreement shall in no way restrict the transfer on the public
market of Shares that are not subject to the Lock-Up Agreement or the Stock
Escrow Agreement, and any such transfers on the public market of Shares not
subject to the provisions of the Lock-Up Agreement or the Stock Escrow
Agreement, as applicable, shall be free and clear of the restrictions in this
Agreement.
ARTICLE
II
REPRESENTATIONS
AND WARRANTIES;
COVENANTS
OF THE STOCKHOLDERS
Each
Stockholder hereby severally represents warrants and covenants as
follows:
SECTION
2.01 Authorization.
Such
Stockholder has full legal capacity and authority to enter into this Agreement
and to carry out such Stockholder’s obligations hereunder. This Agreement has
been duly executed and delivered by such Stockholder, and (assuming due
authorization, execution and delivery by Delcorp and the other Stockholders)
this Agreement constitutes a legal, valid and binding obligation of such
Stockholder, enforceable against such Stockholder in accordance with its
terms.
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SECTION
2.02 No
Conflict; Required Filings and Consents.
(a) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder will not, (i) conflict
with or violate any Legal Requirement applicable to such Stockholder or by
which
any property or asset of such Stockholder is bound or affected, or
(ii) result in any breach of or constitute a default (or an event which
with notice or lapse of time or both would become a default) under, or give
to
others any right of termination, amendment, acceleration or cancellation of,
or
result in the creation of any encumbrance on any property or asset of such
Stockholder, including, without limitation, the Shares, pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation.
(b) The
execution and delivery of this Agreement by such Stockholder does not, and
the
performance of this Agreement by such Stockholder will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
governmental or regulatory authority, domestic or foreign, except (i) for
applicable requirements, if any, of the Exchange Act, and (ii) where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, would not prevent or materially delay the
performance by such Stockholder of such Stockholder’s obligations under this
Agreement.
SECTION
2.03 Title
to Shares.
Such
Stockholder is the legal and beneficial owner of its Shares, or will be the
legal beneficial owner of the Shares that such Stockholder will receive as
a
result of the Merger, free and clear of all liens and other encumbrances except
certain restrictions upon the transfer of such Shares.
ARTICLE
III
GENERAL
PROVISIONS
SECTION
3.01 Notices.
All
notices and other communications given or made pursuant hereto shall be in
writing and shall be given (and shall be deemed to have been duly given upon
receipt) by delivery in person, by overnight courier service, by telecopy,
or by
registered or certified mail (postage prepaid, return receipt requested) to
the
respective parties at the following addresses (or at such other addresses as
shall be specified by notice given in accordance with this
Section 3.01):
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(a)
|
If
to Delcorp:
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000
Xxxxx
Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx,
X.X. 00000
Attention:
Xxxx Xxxxxxxxx
Telecopy
No.: 000-000-0000
with
a
mandatory copy to
Xxxxxxxx
Xxxxxx
The
Chrysler Building
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
X.X. 00000-0000
Attention:
Xxxxx Xxxx Xxxxxx, Esq.
Telecopy
No.: 000-000-0000
6
(b) If
to any
Stockholder, to the address set forth opposite his, her or its name on Exhibit
A.
With
a
mandatory copy to
Xxxxx
& Xxxxxx, LLP
000
Xxxxx
Xxxxxxxxx, Xxxxx 0000
Xxxxx
Xxxx, XX 00000-0000
Attention:
Xxxxxx X. Xxxx, Esq.
Telecopier
No.: 000-000-0000
SECTION
3.02 Headings.
The
headings contained in this Agreement are for reference purposes only and shall
not affect in any way the meaning or interpretation of this
Agreement.
SECTION
3.03 Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule of law or public policy, all other conditions and
provisions of this Agreement shall nevertheless remain in full force and effect
so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party. Upon
such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely
as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the
extent possible.
SECTION
3.04 Entire
Agreement.
This
Agreement constitutes the entire agreement of the parties and supersedes all
prior agreements and undertakings, both written and oral, between the parties,
or any of them, with respect to the subject matter hereof. This Agreement may
not be amended or modified except in an instrument in writing signed by, or
on
behalf of, the parties hereto.
SECTION
3.05 Specific
Performance.
The
parties hereto agree that irreparable damage would occur in the event that
any
provision of this Agreement was not performed in accordance with the terms
hereof and that the parties shall be entitled to specific performance of the
terms hereof, in addition to any other remedy at law or in equity.
SECTION
3.06 Governing
Law.
This
Agreement shall be governed by, and construed in accordance with, the laws
of
the State of Delaware applicable to contracts executed in and to be performed
in
that State.
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SECTION
3.07 Arbitration.
Except
as otherwise provided in this Agreement, any controversy or claim arising out
of
or relating to this Agreement or the breach thereof shall be settled by
arbitration in Orange County, California.
(a) Judicial
Arbitration and Mediation Services.
The
arbitration shall be administered by Judicial Arbitration and Mediation Services
(“JAMS”)
in its
Orange County office.
(b) Arbitrator.
The
arbitrator shall be a retired superior or appellate court judge of the State
of
Delaware affiliated with JAMS.
(c) Provisional
Remedies and Appeals.
Each of
the parties reserves the right to file with a court of competent jurisdiction
an
application for temporary or preliminary injunctive relief, writ of attachment,
writ of possession, temporary protective order and/or appointment of a receiver
on the grounds that the arbitration award to which the applicant may be entitled
may be rendered ineffectual in the absence of such relief. The award of the
arbitrator shall be binding, final, and nonappealable.
(d) Enforcement
of Judgment.
Judgment upon the award rendered by the arbitrator may be entered in any court
having jurisdiction thereof. The award of the arbitrator shall be binding,
final, and nonappealable.
(e) Discovery.
The
parties may obtain discovery in aid of the arbitration to the fullest extent
permitted under law, including California Code of Civil Procedure Section
1283.05. All discovery disputes shall be resolved by the
arbitrator.
(f) Consolidation.
Any
arbitration hereunder may be consolidated by JAMS with the arbitration of any
other dispute arising out of or relating to the same subject matter when the
arbitrator determines that there is a common issue of law or fact creating
the
possibility of conflicting rulings by more than one arbitrator. Any disputes
over which arbitrator shall hear any consolidated matter shall be resolved
by
JAMS.
(g) Power
and Authority of Arbitrator.
The
arbitrator shall not have any power to alter, amend, modify or change any of
the
terms of this Agreement nor to grant any remedy which is either prohibited
by
the terms of this Agreement, or not available in a court of law.
(h) Governing
Law.
All
questions in respect of procedure to be followed in conducting the arbitration
as well as the enforceability of this Agreement to arbitrate which may be
resolved by state law shall be resolved according to the law of the state of
California. Any action brought to enforce the provisions of this Section shall
be brought in the Orange County Superior Court. All other questions in respect
to this Agreement, including but not limited to the interpretation, enforcement
of this Agreement (other than the right to arbitrate), and the rights, duties
and liabilities of the parties to this Agreement shall be governed by Delaware
law.
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(i) Costs.
The
costs of the arbitration, including any JAMS administration fee, and
arbitrator’s fee, and costs of the use of facilities during the hearings, shall
be borne equally by the parties. Costs shall be awarded to the prevailing
party.
(j) Attorneys’
Fees.
If a
party to this Agreement shall bring any action, suit, counterclaim, appeal,
arbitration, or mediation for any relief against the other parties, declaratory
or otherwise, to enforce the terms hereof or to declare rights hereunder
(referred to herein as an “Action”),
the
non-prevailing party in such Action shall pay to the prevailing party in such
Action a reasonable sum for the prevailing party’s attorneys’ fees and expenses
(at the prevailing party’s attorneys’ then-current rates, as increased from time
to time by the giving of advance written notice by such counsel to such party)
incurred in prosecuting or defending such Action and/or enforcing any judgment,
order, ruling or award (referred to herein as a “Decision”), granted therein,
all of which shall be deemed to have accrued from the commencement of such
Action, and shall be paid whether or not such Action is prosecuted to a
Decision. Any Decision entered into in such Action shall contain a specific
provision providing for the recovery of attorneys’ fees and expenses incurred in
enforcing such Decision. The court or arbitrator may fix the amount of
reasonable attorneys’ fees and expenses upon the request of any party. For
purposes of this Section, attorneys’ fees shall include, without limitation,
fees incurred in connection with (1) postjudgment motions and collection
actions, (2) contempt proceedings, (3) garnishment, levy and debtor
and third party examination, (4) discovery and (5) bankruptcy
litigation.
SECTION
3.08 No
Waiver.
No
failure or delay by any party in exercising any right, power or privilege
hereunder shall operate as a waiver thereof nor shall any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege. The rights and remedies herein provided
shall be cumulative and not exclusive of any rights or remedies provided by
law.
SECTION
3.09 Counterparts.
This
Agreement may be executed in one or more counterparts, and by the different
parties hereto in separate counterparts, each of which when executed shall
be
deemed to be an original but all of which taken together shall constitute one
and the same agreement.
SECTION
3.10 Merger
Agreement.
All
references to the Merger Agreement herein shall be to such agreement as may
be
amended by the parties thereto from time to time.
[Signature
Page Follows]
9
IN
WITNESS WHEREOF, the parties have executed this Agreement as of the date first
written above.
By:
_____________________
Name:
Xxxx Xxxxxxxxx
Title:
President and Chief Executive Officer
STOCKHOLDERS:
The
Founders Group:
____________________________
Xxxx
Xxxxxxxxx
The
Target Group:
____________________________
Xxxxx
Xxxxx
____________________________
Xxxx
X.
Xxxxxxxxxx
Xxxxxxx
Trust
By:
_________________________
Xxxxx
X.
Xxxxxxx, Trustee
____________________________
Xxxxxxx
X. Xxxxx
10
EXHIBIT A
STOCKHOLDERS
Name
and Address Number
of Shares
The
Founders Group:
Xxxx
Xxxxxxxxx
The
Target Group:
Xxxxx
Xxxxx
Xxxx
X.
Xxxxxxxxxx
Xxxxxxx
Trust
Xxxxxxx
X. Xxxxx
[Insert
name address and fax number for each person.]
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