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Exhibit 2(a)
AGREEMENT AND PLAN OF MERGER
AMONG
XXXXXXX ENGINEERING, INC.,
URS CORPORATION,
AND
URS ACQUISITION CORPORATION
January 10, 1996
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TABLE OF CONTENTS
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE 1. THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1 Merger of the Subsidiary into Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.2 Effective Time of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1.3 Effects of the Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE 2. EFFECT OF MERGER ON CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.1 Conversion of the Xxxxxxx Common Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.2 Conversion of the Subsidiary Common Stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.3 Cancellation of Treasury Shares . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
2.4 Withholding Tax . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 3. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.1 Closing; Closing Date . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF XXXXXXX . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.3 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.4 Material Investments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.5 Authority Relative to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.6 Consents and Approvals; No Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.7 Xxxxxxx SEC Reports and Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
4.8 Information Supplied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.9 Absence of Material Adverse and Other Changes . . . . . . . . . . . . . . . . . . . . . . . . . . 9
4.10 Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.11 Absence of Undisclosed Liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.12 No Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.13 Properties, Liens, Etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4.14 Taxes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.15 Benefit Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
4.16 Employment Matters; Labor Relations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
4.17 Intellectual Property . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
4.18 Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.19 Compliance with Applicable Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.20 Certain Contracts and Arrangements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
4.21 Prohibited Payments . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.22 Powers of Attorney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.23 Environmental Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
4.24 Regulatory Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.25 Immigration Reform and Control Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
4.26 Board Approvals; Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.27 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.28 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
4.29 Reliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF URS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.1 Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.2 Capitalization . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
5.3 Authority Relative to this Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.4 Consents and Approvals; No Violations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
5.5 URS SEC Reports and Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.6 Information Supplied . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
5.7 Board Approvals; Opinion of Financial Advisor . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.8 Brokers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
5.9 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
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ARTICLE 6. PRE-CLOSING COVENANTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1 Covenants of All Parties . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1.1 Advice of Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1.2 Regulatory Approvals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1.3 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1.4 Best Efforts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
6.1.5 Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2 Covenants of Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2.1 Conduct of Business Pending Merger . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
6.2.2 Stockholders' Meeting; Proxy Statement . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.2.3 Acquisition Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
6.2.4 Maintenance of Business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.2.5 Access . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.2.6 Liability Insurance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.3 Covenants of URS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.3.1 Registration Statement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
6.3.2 Listing Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE 7. CONDITIONS TO CONSUMMATION OF THE MERGER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
7.1 Conditions to Obligations of Xxxxxxx . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.1 Representations and Warranties True
at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.2 Covenants Performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.3 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.4 Approval of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.5 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.6 Form S-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
7.1.7 Merger Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.1.8 Material Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.1.9 HSR Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2 Conditions to Obligations of URS and the Subsidiary . . . . . . . . . . . . . . . . . . . . . . . 28
7.2.1 Representations and Warranties True
at Closing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2.2 Covenants Performed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2.3 Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2.4 Approval of Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2.5 Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
7.2.6 Form S-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2.7 Merger Documents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2.8 Material Adverse Changes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2.9 HSR Filing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2.10 Consents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2.11 No Litigation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
7.2.12 Credit Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
ARTICLE 8. ADDITIONAL AGREEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.1 Public Announcements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.2 Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
8.3 Additional Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.4 Use of Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.5 Employee Matters . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.6 Non-Liability of Agents and Stockholders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
8.7 Xxxxxxx Engineering, Inc. Performance
Plan and Employee Stock Ownership Plan . . . . . . . . . . . . . . . . . . . . . . . . . 30
ARTICLE 9. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.1 Termination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
9.2 Effect of Termination and Abandonment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.3 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
9.4 Extension; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
ARTICLE 10. MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.1 Survival of Representations and Warranties . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.2 Entire Agreement; Modification; Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
10.3 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
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10.4 Assignment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.5 Fees and Expenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.6 Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.7 Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
10.8 Further Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.9 No Third Party Beneficiary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.10 Effect of Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
10.11 Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement"), is entered
into as of January 10, 1996, by and among XXXXXXX ENGINEERING, INC., a Nevada
corporation ("Xxxxxxx"), URS CORPORATION, a Delaware corporation ("URS"), and
URS ACQUISITION CORPORATION, a Nevada corporation (the "Subsidiary"). Xxxxxxx
is sometimes referred to herein as the "Surviving Corporation" and Xxxxxxx and
the Subsidiary are sometimes collectively referred to herein as the
"Constituent Corporations."
RECITALS
X. Xxxxxxx is a corporation duly organized and existing under the laws
of the State of Nevada, having as of the date hereof authorized capital stock
consisting of (i) 20,000,000 shares of common stock, par value $0.50 per share
(the "Xxxxxxx Common Stock"), of which as of the date hereof, 4,704,642 are
issued and outstanding, 121,092 are issued and held in treasury, and 15,174,266
are reserved for issuance, and (ii) 1,000,000 shares of preferred stock, par
value $1.00 per share, of which no shares are issued and outstanding.
B. URS is a corporation duly organized and existing under the laws of
the State of Delaware, having as of the date hereof authorized capital stock
consisting of (i) 20,000,000 shares of common stock, par value $0.01 per share
(the "URS Common Stock"), of which as of the date hereof, 7,167,591 are issued
and outstanding, 287,000 are issued and held in treasury, and 12,545,409 are
reserved for issuance, and (ii) 1,000,000 shares of preferred stock, par value
$1.00 per share, of which no shares are issued and outstanding.
C. The Subsidiary is a corporation duly organized and existing under
the laws of the State of Nevada, having as of the date hereof authorized
capital stock consisting of 100 shares of common stock, par value $1.00 per
share (the "Subsidiary Common Stock"), all of which have been issued to, and
are owned by, URS.
D. URS, Xxxxxxx and the Subsidiary have determined that it is
advisable that the Subsidiary be merged with and into Xxxxxxx on the terms and
conditions set forth herein and pursuant to the applicable statutes and
regulations (the "Merger").
E. The respective boards of directors of Xxxxxxx, XXX and the
Subsidiary have authorized and approved the execution, delivery and the
performance of this Agreement and the transactions contemplated hereby, and the
board of directors of Xxxxxxx has directed that this Agreement be submitted to
the stockholders of Xxxxxxx for consideration of and vote upon the approval of
this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements,
provisions and covenants contained herein, and subject to the terms and
conditions hereof, and intending to be legally bound hereby, the parties hereto
hereby agree as follows:
ARTICLE 1.
THE MERGER
Section 1..1 Merger of the Subsidiary into Xxxxxxx. Upon the terms
and subject to the conditions set forth in this Agreement, and in accordance
with the Nevada Business Corporation Law set forth in Title 7 of the Nevada
Revised Statues (the "Nevada Law"), at the Effective Time of the Merger (as
defined in Section 1.2 below), the Subsidiary shall be merged with and into
Xxxxxxx, and the separate existence of the Subsidiary shall thereupon cease,
and Xxxxxxx shall continue its corporate existence as the
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surviving corporation of the Merger under the laws of the State of Nevada under
the name of Xxxxxxx Engineering, Inc., and Xxxxxxx shall succeed to and assume
all the rights and obligations of the Subsidiary in accordance with the Nevada
Law.
Section 1..2 Effective Time of the Merger. Subject to the provisions of
this Agreement, as soon as practicable after the Closing Date, the parties
shall file articles of merger, certificate of merger or other appropriate
documents (in any such case, the "Merger Documents"), executed in accordance
with the relevant provisions of the Nevada Law and shall make all other filings
or recordings required under the Nevada Law. The Merger shall become effective
at such time as the Merger Documents are duly filed with the Secretary of State
of the State of Nevada, or at such other time as the parties hereto shall agree
should be specified in the Merger Documents (the "Effective Time of the
Merger").
Section 1..3 Effects of the Merger. At the Effective Time of the Merger:
(a) the separate corporate existence of the Subsidiary shall
cease and the Subsidiary shall be merged with and into Xxxxxxx, which shall be
the Surviving Corporation, and all of the assets of the Subsidiary shall become
the property of Xxxxxxx as the Surviving Corporation of the Merger, subject to
the liabilities of the Subsidiary as of the Effective Time of the Merger;
(b) the Articles of Incorporation of Xxxxxxx, as in effect
immediately prior to the Effective Time of the Merger, shall be the Articles of
Incorporation of the Surviving Corporation, and may be amended thereafter as
provided by law;
(c) the by-laws of Xxxxxxx, as in effect immediately prior
to the Effective Time of the Merger, shall be the by-laws of the Surviving
Corporation; such by-laws may be amended thereafter in accordance with their
terms and as provided by law;
(d) the directors of the Subsidiary immediately prior to the
Effective Time of the Merger shall be the directors of the Surviving
Corporation, each of such directors to hold office, subject to the applicable
provisions of the Articles of Incorporation and by-laws of the Surviving
Corporation, until the next annual stockholders' meeting of the Surviving
Corporation and until their successors are elected and duly qualified; if at
the Effective Time of the Merger, any of the foregoing persons shall for any
reason be unwilling or unable to serve, the resulting vacancy shall be filled
as provided in such by-laws;
(e) the officers of Xxxxxxx immediately prior to the
Effective Time of the Merger shall be the officers of the Surviving
Corporation, each of such officers to hold office, subject to the applicable
provisions of the Articles of Incorporation and by-laws of the Surviving
Corporation, at the pleasure of the board of directors of the Surviving
Corporation and until their successors are elected and duly qualified; and
(f) the Surviving Corporation shall possess all the rights,
privileges, immunities, powers and purposes of each of the Constituent
Corporations; and all the property, real, personal or mixed, including causes
of action and every other asset of each of the Constituent Corporations, shall
vest in the Surviving Corporation without further act or deed. The Surviving
Corporation shall be responsible and liable for all liabilities and obligations
of each of the Constituent Corporations. No liability or obligation due or to
become due, claim or demand for any cause existing against either of the
Constituent Corporations, or any stockholder, officer or director thereof,
shall be released or impaired by the Merger. No action or proceeding, whether
civil or criminal, then pending by or against the Constituent Corporations, or
any stockholder, officer or director thereof, shall xxxxx or be discontinued by
the Merger,
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but may be enforced, prosecuted, settled or compromised as if the Merger had
not occurred, or the Surviving Corporation may be substituted in such action or
special proceeding in place of the Constituent Corporations.
ARTICLE 2.
EFFECT OF MERGER ON CAPITAL STOCK
OF THE CONSTITUENT CORPORATIONS
Section 2..1 Conversion of the Xxxxxxx Common Stock.
(a) Conversion; Merger Consideration. At the Effective Time
of the Merger, each share of the Xxxxxxx Common Stock issued and outstanding
immediately prior to the Effective Time of the Merger shall, by virtue of the
Merger, and without any action on the part of the holder thereof, be converted
into the right to receive (i) 0.298 shares of the URS Common Stock, and (ii)
$13.50 in cash, all of which shall be payable upon the surrender of the
certificate(s) formerly representing such shares of Xxxxxxx Common Stock. The
cash and the URS Common Stock so deliverable is hereinafter collectively
referred to as the "Merger Consideration."
(b) Fractional Shares. No fractional shares of the URS
Common Stock will be issued as a result of the Merger. In lieu of the issuance
of any fractional shares of the URS Common Stock, holders of shares of the
Xxxxxxx Common Stock who would otherwise have been entitled to receive a
fraction of a share of the URS Common Stock shall be entitled to receive, from
URS, an amount of cash, without interest, equal to the closing price of the URS
Common Stock as reported on the New York Stock Exchange on the trading day
immediately preceding the Closing Date as listed in The Wall Street Journal,
multiplied by the fraction of a share of the URS Common Stock to which such
holder would otherwise have been entitled.
(c) Options. At the Effective Time of the Merger, all
options to purchase Xxxxxxx Common Stock (the "Xxxxxxx Options") issued under
the 1981 Stock Option Plan of Xxxxxxx Engineering, Inc. (the "1981 Xxxxxxx
Plan") or under the 1991 Stock Option Plan of Xxxxxxx Engineering, Inc. (the
"1991 Xxxxxxx Plan") which remain outstanding at that time (whether or not
previously exercisable or vested) shall, by virtue of the Merger, and without
any further action on the part of Xxxxxxx or any holder of said Xxxxxxx
Options, be cancelled. If, at the Effective Time of the Merger, the Exercise
Price per share with respect to any Xxxxxxx Option (whether or not previously
exercisable or vested) so cancelled (the "Exercise Price") is less than the sum
of (x) $13.50 per share, plus (y) 0.298 multiplied by the closing price per
share of the URS Common Stock as reported on the New York Stock Exchange on the
trading day immediately preceding the Closing Date as listed in The Wall Street
Journal (the "Merger Value"), then the holder of such Xxxxxxx Option shall be
paid as soon as practicable following the Closing Date cash in an amount per
each share of Xxxxxxx Common Stock subject to such option equal to the excess,
if any, of the Merger Value over the Exercise Price. Notwithstanding anything
to the contrary in this Section 2.1(c), pursuant to the terms of Section 6(b)
of the 1981 Xxxxxxx Plan and Section 6(b) of the 1991 Xxxxxxx Plan, promptly
following execution of this Agreement, Xxxxxxx shall give each holder of the
Xxxxxxx Options (whether or not previously exercisable or vested) written
notice that such Xxxxxxx Options will be cancelled in connection with the
Merger and, shall permit said holders to exercise their Xxxxxxx Options and
purchase Xxxxxxx Common Stock pursuant to the terms of the 1981 Xxxxxxx Plan
and/or the 1991 Xxxxxxx Plan, as the case may be.
(d) Surrender of Certificates and Receipt of Consideration.
(1) Appointment of Exchange Agent; Exchange Fund. As
of the Effective Time of the Merger, URS shall deposit, or shall cause to be
deposited with an exchange agent selected by URS and reasonably satisfactory to
Xxxxxxx (the "Exchange Agent"), for the benefit of holders of the Xxxxxxx
Common Stock, for exchange in accordance with this Article
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2, (i) certificates representing the number of shares of the URS Common Stock
issuable as part of the Merger Consideration, and (ii) cash in an amount equal
to the aggregate cash component of the Merger Consideration, and (iii) cash to
be paid in lieu of the issuance of fractional shares (such cash and
certificates for the shares of URS Common Stock are hereinafter referred to
collectively as the "Exchange Fund").
(2) Notice to Xxxxxxx Stockholders. As soon as
reasonably practicable after the Effective Time of the Merger, URS shall cause
the Exchange Agent to mail to each holder of record of a certificate or
certificates representing the Xxxxxxx Common Stock (A) a letter of transmittal
which shall specify that delivery shall be effected, and risk of loss and title
to the certificates for shares of the Xxxxxxx Common Stock shall pass, only
upon delivery of the certificates for the shares of the Xxxxxxx Common Stock to
the Exchange Agent, and shall be in such form and have such other provisions as
URS may reasonably specify, and (B) instructions for use in effecting the
surrender of the certificates for the shares of the Xxxxxxx Common Stock in
exchange for the Merger Consideration.
(3) Surrender of Xxxxxxx Stock Certificates. Upon
surrender of a certificate for shares of the Xxxxxxx Common Stock (a "Xxxxxxx
Stock Certificate") for cancellation to the Exchange Agent or to such other
agent or agents as may be appointed by URS, together with such letter of
transmittal, duly executed and completed in accordance with the instructions
thereto, the holder thereof shall be entitled to receive in exchange therefor
the number of whole shares of the URS Common Stock to which the holder of the
Xxxxxxx Common Stock is entitled pursuant to this Article 2 plus that portion
of the Exchange Fund which such holder has the right to receive pursuant to the
provisions of this Section 2.1, after giving effect to any required withholding
tax, and the Xxxxxxx Stock Certificate for the shares of the Xxxxxxx Common
Stock so surrendered shall forthwith be cancelled.
(4) Limitations. Notwithstanding any other provision
of this Agreement, until holders of Xxxxxxx Stock Certificates representing
shares of the Xxxxxxx Common Stock have surrendered them for exchange as
provided herein, .1 no dividends or other distributions shall be paid with
respect to any shares represented by such Certificates and no payment for
fractional shares shall be made, and .2 without regard to when such Xxxxxxx
Stock Certificates are surrendered for exchange as provided herein, no interest
shall be paid on any dividends or other distributions or any payment for
fractional shares. Upon surrender of a Xxxxxxx Stock Certificate, there shall
be paid to the holder of such Xxxxxxx Stock Certificate the amount of any
dividends or other distributions which theretofore became payable, but which
were not paid by reason of the preceding sentence, with respect to the number
of whole shares of URS Common Stock represented by the Xxxxxxx Stock
Certificate or Certificates issued upon such surrender. If any certificate for
URS Common Stock is to be issued in a name other than in which the Xxxxxxx
Stock Certificate surrendered in exchange therefore is registered, it shall be
a condition of such exchange that the person requesting such exchange pay any
transfer or other taxes required by reason of the issuance of certificates for
such shares of URS Common Stock in a name other than that of the registered
holder of the Xxxxxxx Stock Certificate surrendered, or establish to the
satisfaction of Xxxxxxx that such tax has been paid or is not applicable.
Certificates of URS Common Stock issued to holders of Xxxxxxx Common Stock
issued under a Xxxxxxx restricted stock plan shall bear legends substantially
similar to the legends presently on the Xxxxxxx Common Stock Certificates and
as required by applicable law.
(5) Payment. The Exchange Agent shall within 15
business days of receipt of such Xxxxxxx Stock Certificate pay the holder of
such Certificate, in immediately available funds, the amount of cash into which
the shares theretofore represented by such Certificate shall have been
converted pursuant to Section 2.1, and the Xxxxxxx Stock Certificate so
surrendered shall be cancelled. In the event of a transfer
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of ownership of shares of Xxxxxxx Common Stock that is not registered in the
transfer records of Xxxxxxx, payment may be made to a person other than the
person in whose name the Certificate so surrendered is registered, if such
Certificate shall be properly endorsed or otherwise be in proper form for
transfer and the person requesting such payment shall pay any transfer or other
taxes required by reason of the payment to a person other than the registered
holder of such Xxxxxxx Stock Certificate or establish to the satisfaction of
the Xxxxxxx that such tax has been paid or is not applicable. Until
surrendered as contemplated by this Section 2.1, each Xxxxxxx Stock Certificate
shall be deemed at any time after the Effective Time of the Merger to represent
only the right to receive upon such surrender the amount of the Merger
Consideration, without interest, into which the shares theretofore represented
by such Xxxxxxx Stock Certificate shall be converted pursuant to Section 2.1.
No interest will be paid or will accrue on the cash payable upon the surrender
of any Xxxxxxx Stock Certificate.
(e) Cancellation of the Xxxxxxx Common Stock. At the
Effective Time of the Merger, all of the authorized and outstanding shares of
the Xxxxxxx Common Stock shall be cancelled and cease to represent any interest
in Xxxxxxx and such holders shall cease to have any rights of a stockholder of
Xxxxxxx. From and after the Effective Time of the Merger, the holders of
shares of the Xxxxxxx Common Stock outstanding immediately prior to the
Effective Time of the Merger as such holders shall be entitled to receive only
the Merger Consideration. From the Effective Time of the Merger, the holders
of the shares of the Xxxxxxx Common Stock which shall be converted into the URS
Common Stock pursuant to Section 2.1(a) shall have all of the rights of holders
of the number of shares of the URS Common Stock into which such Xxxxxxx Common
Stock has been converted.
Section 2..2 Conversion of the Subsidiary Common Stock. At the Effective
Time of the Merger, each share of the Subsidiary Common Stock outstanding
immediately prior to the Effective Time of the Merger shall be converted into
one (1) share of a newly-created class of $1.00 par value common stock of the
Surviving Corporation.
Section 2..3 Cancellation of Treasury Shares. Any share of the Xxxxxxx
Common Stock held in the treasury of Xxxxxxx at the Effective Time of the
Merger shall be cancelled and retired at the Effective Time of the Merger and
no shares shall be issuable with respect thereto.
Section 2..4 Withholding Tax. The right of any shareholder to receive the
Merger Consideration shall be subject to and reduced by the amount of any
required tax withholding obligation.
ARTICLE 3.
CLOSING
Section 3..1 Closing; Closing Date. Unless this Merger Agreement shall
have been terminated and the Merger abandoned pursuant to the provisions of
Article 9, a closing ("Closing") shall take place at the offices of Messrs.
Sheppard, Mullin, Xxxxxxx & Xxxxxxx, Four Xxxxxxxxxxx Xxxxxx, Xxxxx 0000, Xxx
Xxxxxxxxx, XX 00000, at 10:00 A.M., California time, on the business day
following approval of the Xxxxxxx stockholders as contemplated by Section
6.2.2, or at such other time and place as may be agreed upon in writing by the
parties hereto (the "Closing Date").
ARTICLE 4.
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Except as otherwise disclosed to URS in a letter delivered to it prior to
the execution hereof (which letter shall contain appropriate references to
identify the representations and warranties herein to which
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the information in such letter relates) (the "Xxxxxxx Disclosure Letter"),
Xxxxxxx represents and warrants to URS and the Subsidiary as follows:
Section 4..1 Organization. Each of Xxxxxxx and the Xxxxxxx Subsidiaries
(as hereinafter defined) is a corporation duly organized, validly existing, and
in good standing under the laws of the jurisdiction of its incorporation and
has all requisite corporate power and authority to own, lease, and operate its
properties, and to carry on its business as now being conducted, except where
the failure to be so organized, existing, and in good standing or to have such
power and authority would not have a Xxxxxxx Material Adverse Effect (as
defined below). Each of Xxxxxxx and the Xxxxxxx Subsidiaries is duly qualified
or licensed and in good standing to do business in each jurisdiction in which
the property owned, leased, or operated by it or the nature of the business
conducted by it makes such qualification necessary, except in any such
jurisdictions where the failure to be so duly qualified or licensed and in good
standing would not have a Xxxxxxx Material Adverse Effect (defined below) on
the Business Condition (defined below) of Xxxxxxx. For purposes of this
Agreement: (a) "Xxxxxxx Material Adverse Effect" means, when used in
connection with Xxxxxxx, any change or effect that is materially adverse to the
Business Condition of Xxxxxxx, other than changes or effects resulting from (i)
changes attributable to conditions affecting the engineering business
generally, (ii) changes in general economic conditions, or (iii) changes
attributable to the announcement or pendency of the Merger; and (b) "Business
Condition" with respect to an entity shall mean the business, financial
condition, results of operations, or assets (without giving effect to the
consequences of the transactions contemplated by this Agreement) of such entity
and its Subsidiaries taken as a whole.
Section 4..2 Capitalization. The authorized capital stock of Xxxxxxx
consists of 20,000,000 shares of Xxxxxxx Common Stock, par value $0.50 per
share, and 1,000,000 shares of preferred stock, par value $1.00 per share (the
"Xxxxxxx Preferred Stock"). As of the date hereof, (i) 4,704,642 shares of
Xxxxxxx Common Stock are issued and outstanding, (ii) options to acquire
377,650 shares of Xxxxxxx Common Stock are outstanding under all stock option
plans and agreements of Xxxxxxx, (iii) 737,300 shares of Xxxxxxx Common Stock
(including shares of Xxxxxxx Common Stock issuable upon exercise of the options
identified in clause (ii) above) are reserved for issuance pursuant to all
employee plans of Xxxxxxx, and (iv) there are no shares of Xxxxxxx Preferred
Stock outstanding. All of the issued and outstanding shares of Xxxxxxx Common
Stock are validly issued, fully paid and nonassessable and free of preemptive
rights. Except as set forth above or as specified in Section 4.2 of the
Xxxxxxx Disclosure Letter, as of the date of this Agreement there are no shares
of capital stock of Xxxxxxx issued or outstanding or any options, warrants,
subscriptions, calls, rights, convertible securities or other agreements or
commitments obligating Xxxxxxx to issue, transfer, sell, redeem, repurchase or
otherwise acquire any shares of its capital stock or securities. Except as
provided in this Agreement or as set forth in Section 4.2 of the Xxxxxxx
Disclosure Letter, after the Effective Time of the Merger, Xxxxxxx will have no
obligation to issue, transfer or sell any shares of its capital stock pursuant
to any employee benefit plan or otherwise.
Section 4..3 Subsidiaries. Section 4.3 of the Xxxxxxx Disclosure Letter
identifies each corporation or other entity of which Xxxxxxx, directly or
indirectly, owns or controls voting securities or other interests which are
sufficient to elect a majority of the board of directors or others performing
similar functions of such corporation or other entity (a "Xxxxxxx Subsidiary")
and sets forth for each Xxxxxxx Subsidiary: (i) its name and jurisdiction of
incorporation or organization; (ii) its authorized capital stock; and (iii) the
number of issued and outstanding shares of capital stock. Xxxxxxx owns
directly or indirectly each of the outstanding shares of capital stock (or
other ownership interests having by their terms ordinary voting power to elect
a majority of directors or others performing similar functions with respect to
such Xxxxxxx Subsidiary) of each of the Xxxxxxx Subsidiaries. Each of the
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outstanding shares of capital stock of each of the Xxxxxxx Subsidiaries is duly
authorized, validly issued, fully paid and nonassessable. Each of the
outstanding shares of capital stock of each Xxxxxxx Subsidiary is owned,
directly or indirectly, by Xxxxxxx, free and clear of all liens, pledges,
security interests, claims, or other encumbrances of any nature whatsoever
("Liens"). There are not now, and at Closing there will not be, (a) any issued
or outstanding securities convertible into or exchangeable for, or any options,
warrants, calls, subscriptions or other rights (preemptive or otherwise) to
acquire, any shares of capital stock of any of the Xxxxxxx Subsidiaries; or
(b) any agreements or contractual commitments obligating Xxxxxxx, or
restricting Xxxxxxx'x rights, to transfer, sell, or vote, the capital stock of
the Xxxxxxx Subsidiaries owned by it, directly or indirectly.
Section 4..4 Material Investments. Except as set forth in Section 4.4 of
the Xxxxxxx Disclosure Letter, Xxxxxxx does not directly or indirectly own any
equity or similar interest in, or any interest convertible into or exchangeable
or exercisable for any equity or similar interest in, any corporation (other
than a Xxxxxxx Subsidiary), partnership, joint venture or other business
association or entity that is material to Xxxxxxx. With respect to those
entities indicated on Section 4.4 of the Xxxxxxx Disclosure Letter, Xxxxxxx has
heretofore delivered to URS financial statements (audited to the extent
available) and interim unaudited financial statements of each of such entities
(through the most recently concluded fiscal quarter for each of such persons)
and, to the best knowledge of Xxxxxxx, such financial statements fairly
present, in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis (except as may be indicated in the notes thereto
or in Section 4.4 of the Xxxxxxx Disclosure Letter), the financial condition of
each thereof as at and the results of operations for the periods so indicated
(subject to normal year-end adjustments in the case of the interim unaudited
financial statements), and Xxxxxxx'x disclosures with respect to its investment
in each such entities otherwise included in the Xxxxxxx SEC Reports (as defined
below) do not contain any untrue statements of material fact or omit to state
any material fact required to be stated therein or which are necessary in order
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Except as set forth in Section 4.4 of the Xxxxxxx
Disclosure Letter, Xxxxxxx (or, as indicated thereon, a Xxxxxxx Subsidiary) has
good and marketable title to the securities evidencing its investment in the
entities indicated in Section 4.4 of the Xxxxxxx Disclosure Letter, which have
been validly issued and are fully paid and nonassessable and are held by
Xxxxxxx or a Xxxxxxx Subsidiary free and clear of any Lien, restraint on
alienation, or any other restriction with respect of the transferability or
assignability thereof (other than restrictions on transfer imposed by Federal
or state securities laws).
Section 4..5 Authority Relative to this Agreement. Xxxxxxx has all
requisite corporate power and authority to enter into this Agreement and
subject, in the case of this Agreement, to approval of this Agreement by the
stockholders of Xxxxxxx and to the consents and approvals set forth in Section
4.6 below, to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Agreement by Xxxxxxx and the consummation by
Xxxxxxx of the transactions contemplated hereby have been duly authorized by
all necessary corporate action on the part of Xxxxxxx, including the unanimous
approval of the Board of Directors of Xxxxxxx, and no other corporate
proceedings on the part of Xxxxxxx are necessary to authorize this Agreement or
the transactions contemplated hereby (except for approval by the stockholders
of Xxxxxxx). This Agreement has been duly and validly executed and delivered
by Xxxxxxx and constitutes a valid and binding agreement of Xxxxxxx,
enforceable against Xxxxxxx in accordance with its terms, except that such
enforceability may be subject to (i) bankruptcy, insolvency, reorganization or
other similar laws relating to enforcement of creditors' rights generally, and
(ii) general equitable principles.
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Section 4..6 Consents and Approvals; No Violations. Except for applicable
requirements of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), the Securities Act of 1933, as amended (the
"Securities Act"), the Securities Exchange Act of 1934, as amended (the
"Exchange Act") (the HSR Act, Securities Act and Exchange Act, collectively,
the "Governmental Requirements"), state or foreign laws relating to takeovers,
if applicable, state securities or blue sky laws, state and local laws and
regulations relating to licensing, and the filing of the Documents of Merger as
required by the Nevada Law, no filing with, and no permit, authorization,
consent or approval of, any court or tribunal or administrative, governmental
or regulatory body, agency or authority ("Government Entity") is necessary for
the execution, delivery and performance of this Agreement by Xxxxxxx or the
transactions contemplated by this Agreement. Neither the execution, delivery
nor performance of this Agreement by Xxxxxxx, nor the consummation by Xxxxxxx
of the transactions contemplated hereby, nor compliance by Xxxxxxx with any of
the provisions hereof, will (i) conflict with or result in any breach of any
provisions of the Articles of Incorporation or By-Laws of Xxxxxxx or the
Articles or Certificate of Incorporation, as the case may be, or By-Laws of any
of the Xxxxxxx Subsidiaries, (ii) except as set forth in Section 4.6(ii) of the
Xxxxxxx Disclosure Letter, result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default (or give rise
to any right of termination, cancellation, acceleration, vesting, payment,
exercise, suspension or revocation) under, any of the terms, conditions or
provisions of any note, bond, mortgage, deed of trust, security interest,
indenture, license, contract, agreement, plan or other instrument or obligation
to which Xxxxxxx or any of the Xxxxxxx Subsidiaries is a party or by which any
of them or any of their properties or assets may be bound or affected, (iii)
except as set forth in Section 4.6(iii) of the Xxxxxxx Disclosure Letter,
violate any order, writ, injunction, decree, statute, rule or regulation
applicable to Xxxxxxx, any Xxxxxxx Subsidiary or any of their properties or
assets, (iv) except as set forth in Schedule 4.6(iv) of the Xxxxxxx Disclosure
Letter, result in the creation or imposition of any Lien on any asset of
Xxxxxxx or any Xxxxxxx Subsidiary, or (v) except as set forth in Section 4.6(v)
of the Xxxxxxx Disclosure Letter, cause the suspension or revocation of any
certificates of need, accreditation, registrations, licenses, permits and other
consents or approvals of governmental agencies or accreditation organizations,
except in the case of clauses (ii), (iii), (iv) and (v) for violations,
breaches, defaults, terminations, cancellations, accelerations, creations,
impositions, suspensions or revocations which would not individually or in the
aggregate have a Xxxxxxx Material Adverse Effect.
Section 4..7 Xxxxxxx SEC Reports and Financial Statements. Xxxxxxx has
delivered or made available to URS true and complete copies of each
registration statement, report and proxy or information statement, including,
without limitation, its Annual Reports to Stockholders incorporated in material
part by reference in certain of such reports, in the form (including exhibits
and any amendments thereto) required to be filed with the Securities and
Exchange Commission ("SEC") since January 1, 1992 (collectively, the "Xxxxxxx
SEC Reports"). Except as set forth in Section 4.7 of the Xxxxxxx Disclosure
Letter, as of the respective dates such Xxxxxxx SEC Reports were filed or, if
any such Xxxxxxx SEC Reports were amended, as of the date such amendment was
filed, each of the Xxxxxxx SEC Reports (i) complied in all material respects
with all applicable requirements of the Securities Act and the Exchange Act,
and the rules and regulations promulgated thereunder, and (ii) did not 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 light of the circumstances under which they were made, not
misleading. Each of the audited consolidated financial statements and
unaudited consolidated interim financial statements of Xxxxxxx (including any
related notes and schedules) included (or incorporated by reference) in its
Annual Reports on Form 10-K for each of the three fiscal years ended December
31, 1992, 1993 and 1994 and Quarterly Reports on Form 10-Q for all interim
periods subsequent thereto (the "Xxxxxxx Financial Statements") fairly present,
in conformity with GAAP applied on a consistent basis (except as
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may be indicated in the notes thereto), the consolidated financial position of
Xxxxxxx and the Xxxxxxx Subsidiaries as of its date and the consolidated
results of operations and cash flows for the period then ended (subject to
normal year-end adjustments in the case of any unaudited interim financial
statements). There has been no change in Xxxxxxx'x accounting policies or the
methods of making accounting estimates or changes in estimates that are
material to the Xxxxxxx Financial Statements, except as described in the notes
thereto.
Section 4..8 Information Supplied. None of the information supplied or to
be supplied by Xxxxxxx or the Xxxxxxx Subsidiaries, auditors, attorneys,
financial advisors, or other consultants or advisors for inclusion in (a) the
registration statement on Form S-4, and any amendment thereto, to be filed
under Securities Act with the SEC by URS in connection with the issuance of the
URS Common Stock in or as a result of the Merger (the "Form S-4"), or (b) the
proxy statement and any amendment or supplement thereto to be distributed in
connection with Xxxxxxx'x meeting of stockholders to vote upon this Agreement
and the transactions contemplated hereby (the "Proxy Statement" and, together
with the Form S-4, the "Proxy Statement/Form S-4"), will: (i) in the case of
the Proxy Statement and any amendment or supplement thereto, .1 at the time of
the mailing of the Proxy Statement and any amendments or supplements thereto,
and .2 at the time of Xxxxxxx'x meeting of stockholders, and (ii) in the case
of the Form S-4, as amended or supplemented, (x) at the time it becomes
effective, (y) at the time of any post-effective amendment thereto, and (z) at
the time of the meeting of the stockholders of Xxxxxxx, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made, not misleading. Xxxxxxx
agrees to correct as promptly as practicable any such information provided by
it that shall have become false or misleading in any material respect and to
take all steps necessary to file with the SEC and have declared effective or
cleared by the SEC any amendment or supplement to the Proxy Statement so as to
correct the same and to cause the Proxy Statement as so corrected to be
disseminated to Xxxxxxx'x stockholders to the extent required by applicable
law. The Proxy Statement/Form S-4 shall comply as to form in all material
respects with the provisions of all applicable laws, including the provisions
of the Exchange Act and the rules and regulations of the SEC thereunder, except
that no representation is made by Xxxxxxx with respect to information supplied
by URS specifically for inclusion therein.
Section 4..9 Absence of Material Adverse and Other Changes. Except as
contemplated by this Agreement, and except as set forth in Section 4.9 of the
Xxxxxxx Disclosure Letter, since September 30, 1995, Xxxxxxx and the Xxxxxxx
Subsidiaries have conducted their business in the ordinary course, consistent
with past practices, and there has not been: (a) any event or occurrence that
has resulted in a Xxxxxxx Material Adverse Effect, or any development or
combination of developments of which Xxxxxxx has knowledge that is reasonably
likely, in Xxxxxxx'x commercially reasonable judgment, to result in a Xxxxxxx
Material Adverse Effect, (b) any declaration, setting aside or payment of any
dividend or other capital distributions in respect of any of its capital stock,
except for regular cash dividends to holders of Xxxxxxx Common Stock in amounts
and at times consistent with prior practice, or any redemption or repurchase or
other acquisition of any shares of its capital stock, (c) any increase in the
regular compensation of any of the officers or employees of Xxxxxxx or the
Xxxxxxx Subsidiaries, except such increases as have been granted in the
ordinary course of business in accordance with its customary practices (which
shall include normal periodic performance reviews, promotions and related
compensation increases), (d) any incurrence, assumption or guarantee by Xxxxxxx
or any of the Xxxxxxx Subsidiaries of any indebtedness for borrowed money other
than in the ordinary course of business consistent with past practices, (e) any
transaction or commitment made, or any contract or agreement entered into, by
Xxxxxxx or any of the Xxxxxxx Subsidiaries (including the acquisition or
disposition of any assets) or any relinquishment by Xxxxxxx or any of the
Xxxxxxx Subsidiaries of any contract or other right, in
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either case, material to Xxxxxxx'x business taken as a whole, other than
transactions and commitments in the ordinary course of business consistent with
past practices and those contemplated by this Agreement, (f) any change in any
method of accounting or accounting practice by Xxxxxxx or any of the Xxxxxxx
Subsidiaries, except for any such change after the date hereof required by
reason of a mandatory concurrent change in GAAP, (g) any loss or damage to the
properties or assets of Xxxxxxx or the Xxxxxxx Subsidiaries which has resulted
or is reasonably likely to result in a Xxxxxxx Material Adverse Effect, or (h)
any agreement or any commitment to take any of the actions described in this
Section 4.9.
Section 4..10 Litigation. Except for litigation disclosed in the notes to
the financial statements included in the Xxxxxxx SEC Reports or as set forth in
Section 4.10 of the Xxxxxxx Disclosure Letter, there is no suit, action or
proceeding (whether at law or equity, before or by any Federal, state or
foreign court, tribunal, commission, board, agency or instrumentality, or
before any arbitrator) pending or, to the best knowledge of Xxxxxxx, threatened
against or affecting Xxxxxxx or any of the Xxxxxxx Subsidiaries, the outcome of
which, in the reasonable judgment of Xxxxxxx, is likely individually or in the
aggregate to have a Xxxxxxx Material Adverse Effect, or which challenges the
validity of this Agreement or seeks to prevent, enjoin, materially alter or
materially delay the transactions contemplated hereby, nor is there any
judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against Xxxxxxx or any of the Xxxxxxx Subsidiaries having, or which, insofar as
can reasonably be foreseen, in the future may have, any such effect.
Section 4..11 Absence of Undisclosed Liabilities. Except for liabilities
or obligations which are accrued or reserved against in the Xxxxxxx Financial
Statements (or reflected in the notes thereto) or which were incurred after
September 30, 1995 in the ordinary course of business and consistent with past
practices or in connection with the transactions contemplated by this
Agreement, Xxxxxxx and the Xxxxxxx Subsidiaries do not have any liabilities or
obligations (whether absolute, accrued, contingent or otherwise) of a nature
required by GAAP to be reflected in a consolidated balance sheet (or reflected
in the notes thereto).
Section 4..12 No Default. Except as set forth in Section 4.12 of the
Xxxxxxx Disclosure Letter, neither Xxxxxxx nor any of the Xxxxxxx Subsidiaries
is in violation or breach of, or default under (and no event has occurred which
with notice or the lapse of time or both would constitute a violation or breach
of, or default under) any term, condition or provision of (a) its Articles or
Certificate of Incorporation, as the case may be, or By-Laws, (b) any note,
bond, mortgage, deed of trust, security interest, indenture, license, contract,
agreement, plan, lease, commitment or other instrument or obligation to which
Xxxxxxx or any of the Xxxxxxx Subsidiaries is a party or by which any of them
or any of their properties or assets may be bound or affected, (c) any order,
writ, injunction, decree, statute, rule or regulation applicable to Xxxxxxx or
any of the Xxxxxxx Subsidiaries or any of their properties or assets, or (d)
any certificate of need, accreditation, registration, license, permit and other
consent or approval of governmental agencies or accreditation organization,
except in the case of clauses (b), (c) and (d) above for violations, breaches
or defaults which would not individually or in the aggregate have a Xxxxxxx
Material Adverse Effect.
Section 4..13 Properties, Liens, Etc. Xxxxxxx and the Xxxxxxx Subsidiaries
own all of their tangible and intangible property, real and personal, free and
clear of any Liens, except for statutory mechanics' and materialmens' liens,
liens for current taxes not yet delinquent, and liens and encumbrances which do
not confer upon the secured parties rights to property which, if exercised upon
default, would have a Xxxxxxx Material Adverse Effect. All plants, structures
and material equipment owned or leased by Xxxxxxx or the Xxxxxxx Subsidiaries
and used in the operation of their business are in satisfactory condition and
repair for the requirements of such business as presently conducted. Neither
Xxxxxxx nor
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any of the Xxxxxxx Subsidiaries have received notice, or have knowledge of, any
pending, threatened or contemplated condemnation proceeding, or of any sale or
other disposition in lieu of condemnation, affecting any real property owned or
leased by Xxxxxxx or any of the Xxxxxxx Subsidiaries.
Section 4..14 Taxes. Except as set forth in Section 4.14 of the Xxxxxxx
Disclosure Letter:
(a) Xxxxxxx and each of the Xxxxxxx Subsidiaries has (i)
timely filed (or has had timely filed on its behalf) or will cause to be timely
filed all material Tax Returns (as defined below) required by applicable law to
be filed by any of them for tax years ended prior to the date of this Agreement
and all such Tax Returns and amendments thereto are or will be true, complete,
and correct in all material respects, (ii) has paid (or has had paid on its
behalf) all Taxes due or has properly accrued or reserved for all such Taxes
for such periods, and (iii) has accrued for all Taxes for periods subsequent to
the periods covered by such Tax Returns.
(b) There are no material liens for Taxes upon the assets of
Xxxxxxx or any of the Xxxxxxx Subsidiaries, except liens for Taxes not yet due.
(c) There are no material deficiencies or adjustments for
Taxes that have been proposed or assessed by any Tax Authority (as defined
below) against Xxxxxxx or any of the Xxxxxxx Subsidiaries and which remain
unpaid.
(d) The Federal income tax returns of Xxxxxxx and each of
the Xxxxxxx Subsidiaries have been examined by the Internal Revenue Service for
all past taxable years and periods to and including the years set forth in
Section 4.14 of the Xxxxxxx Disclosure Letter, and all material deficiencies
finally assessed as a result of such examinations have been paid. Section 4.14
of the Xxxxxxx Disclosure Letter sets forth (i) all taxable years and periods
of Xxxxxxx and the Xxxxxxx Subsidiaries that are presently under Audit (as
defined below) or in respect of which Xxxxxxx or any of the Xxxxxxx
Subsidiaries has been notified in writing by the relevant Tax Authority that it
will be Audited, (ii) the taxable years of Xxxxxxx and the Xxxxxxx Subsidiaries
in respect of which the statutory period of limitations for the assessment of
Federal, state and local income or franchise Taxes has expired, and (iii) all
waivers extending the statutory period of limitation applicable to any material
Tax Return filed by Xxxxxxx or any of the Xxxxxxx Subsidiaries for any taxable
period ending prior to the date of this Agreement.
(e) Prior to the date hereof, Xxxxxxx and the Xxxxxxx
Subsidiaries have disclosed all material Tax sharing, Tax indemnity, or similar
agreements to which Xxxxxxx or any of the Xxxxxxx Subsidiaries is a party to,
is bound by, or has any obligation or liability for Taxes.
(f) As used in this Agreement, (i) "Audit" shall mean any
audit, assessment of Taxes, other examination by any Tax Authority, proceeding
or appeal of such proceeding relating to Taxes, (ii) "Taxes" shall mean all
Federal, state, local and foreign taxes, and other assessments of a similar
nature (whether imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto, (iii) "Tax
Authority" shall mean the Internal Revenue Service and any other domestic or
foreign governmental authority responsible for the administration of any Taxes,
and (iv) "Tax Returns" shall mean all Federal, state, local and foreign tax
returns, declarations, statements, reports, schedules, forms and information
returns and any amended Tax Return relating to Taxes.
Section 4..15 Benefit Plans.
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(a) Section 4.15 of the Xxxxxxx Disclosure Letter lists each Xxxxxxx
Plan. With respect to each of the Xxxxxxx Plans, Xxxxxxx has heretofore
delivered or made available to URS true and complete copies of each of the
following documents: (i) a copy of each written plan (including all amendments
thereto) or a description of each unwritten plan; (ii) a copy of the annual
report, if required under ERISA, with respect to each Xxxxxxx Plan for the last
three years; (iii) a copy of the actuarial report, if required under ERISA,
with respect to each Xxxxxxx Plan for the last three years and any interim
actuarial reports or calculations provided by the actuary since the date of the
most recent annual actuarial report; (iv) the most recent summary plan
description and all succeeding summaries of material modifications for each
Xxxxxxx Plan for which a summary plan description is required; (v) if the
Xxxxxxx Plan is funded through a trust or any third party funding vehicle, a
copy of the trust or other funding agreement (including all amendments thereto)
and the latest financial statements thereof; and (vi) the most recent
determination letter issued with respect to each Qualified Xxxxxxx Plan. Each
of the Xxxxxxx Plans has been operated and administered in all material
respects in accordance with their terms and with all applicable laws, including
Federal and state securities laws. Each Xxxxxxx Plan intended to be qualified
under Section 401(a) of the Code is so qualified and has received a favorable
determination letter from the Internal Revenue Service with respect to such
qualification, its related trust has been determined to be exempt from taxation
under Section 501(a) of the Code and nothing has occurred since the date of
such letter that would adversely affect such qualification or exemption.
(b) Section 4.15 of the Xxxxxxx Disclosure Letter lists each Xxxxxxx
Benefit Arrangement. With respect to each of the Xxxxxxx Benefit Arrangements,
Xxxxxxx has heretofore delivered to or made available to URS true and complete
copies of each written plan (including all amendments thereto) or a description
of each unwritten plan. Each Xxxxxxx Benefit Arrangement has been maintained
in substantial compliance with its terms and with the requirements prescribed
by any and all statutes, orders, rules, and regulations, including, without
limitation, ERISA and the Code, that are applicable to such Xxxxxxx Benefit
Arrangement, including Federal and state securities laws.
(c) Neither Xxxxxxx nor the Xxxxxxx Subsidiaries nor any of their ERISA
Affiliates has been involved in any transaction, taken any action, or failed to
take any action that could cause Xxxxxxx or the Xxxxxxx Subsidiaries to be
subject to any liability that would likely cause a Xxxxxxx Material Adverse
Effect. No fiduciary of any Xxxxxxx Plan or Xxxxxxx Benefit Arrangement has
taken any action that would result in such fiduciary being liable for the
payment of damages under ERISA Section 409 and that would result in any
material liability for Xxxxxxx, the Xxxxxxx Subsidiaries or URS.
(d) Except with respect to contributions to Xxxxxxx Plans under Section
412 that are current and not past due, neither Xxxxxxx nor the Xxxxxxx
Subsidiaries has incurred (directly or indirectly) prior to the Closing any
current obligation to pay (i) any liability under Title IV of ERISA or (ii) any
liability under Section 412 of the Code that remains unpaid at the date of
signing of this Agreement. There is no "unfunded pension liability," i.e.,
excess of the value of benefits earned to date over assets, with respect to
Employee Benefit Plans subject to Title IV of ERISA. All premiums owed to the
Pension Benefit Guaranty Corporation with respect to any Employee Benefit Plan
subject to Title IV have been paid.
(e) None of Xxxxxxx, the Xxxxxxx Subsidiaries, or their ERISA
Affiliates is making or accruing an obligation to make contributions or has, on
or after January 1, 1980, made or accrued an obligation to make contributions
to a "multiemployer plan" as defined in Section 4001(a)(3) of ERISA.
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17
(f) Full payment has been made of all amounts that Xxxxxxx and the
Xxxxxxx Subsidiaries are required to pay as contributions to the Employee
Benefit Plans as of the last day of the most recent fiscal year of each of the
plans ended prior to the date of this Agreement.
(g) No Xxxxxxx Plan or Xxxxxxx Benefit Arrangement provides or ever
provided benefits, including without limitation, death or medical benefits
(whether or not insured and whether or not funded), with respect to current or
former employees of Xxxxxxx and the Xxxxxxx Subsidiaries beyond their
retirement or other termination of service (other than (i) coverage mandated by
applicable law, (ii) death benefits or retirement benefits under any "employee
pension benefit plan," as that term is defined in Section 3(2) of ERISA, (iii)
deferred compensation benefits accrued as liabilities on the books of Xxxxxxx
and disclosed heretofore to URS, or (iv) benefits the full cost of which are
borne by the current or former employee (or his or her beneficiary)). The
consummation of the transactions contemplated hereby will not (i) entitle any
current or former employee of Xxxxxxx or the Xxxxxxx Subsidiaries to severance
pay, unemployment compensation or any similar payment, or (ii) accelerate the
time of payment or vesting, or increase the amount of any compensation due to
any such employee or former employee.
(h) With respect to Xxxxxxx Plans and Xxxxxxx Benefit Arrangements, all
reports, forms, and other documents required to be filed with any governmental
authority or distributed to plan participants (including, without limitation,
summary plan descriptions, Forms 5500, and summary annual reports) have been
timely filed (if applicable) and distributed (if applicable) and were accurate.
(i) There are no pending, threatened, or anticipated claims (other than
routine claims for benefits) by, on behalf of, or against any Xxxxxxx Plans or
Xxxxxxx Benefit Arrangements. No Xxxxxxx Plans or Xxxxxxx Benefit Arrangements
are presently under audit or examination (nor has notice been received of a
potential audit) by the Internal Revenue Service, the Department of Labor, or
PBGC, nor are there any matters pending with respect to any Xxxxxxx Plan with
the Internal Revenue Service under its Voluntary Compliance Resolution program,
its Closing Agreement Program, or other similar programs.
(j) No "prohibited transaction," as such term is defined in Code Section
4975 and ERISA Section 406, has occurred with respect to any Xxxxxxx Plan or
Xxxxxxx Benefit Arrangement that could subject such plan, any fiduciary
thereof, Xxxxxxx, the Xxxxxxx Subsidiaries or URS to a material penalty for
such prohibited transaction imposed by ERISA Section 502 or a material tax
imposed by Code Section 4975.
(k) Any bonding required by applicable provisions of ERISA with respect
to any Xxxxxxx Plan or Xxxxxxx Benefit Arrangement has been obtained and is in
full force and effect.
(l) For purposes of this Section 4.15:
(1) "Xxxxxxx Benefit Arrangement" means each
employment, severance, or other similar contract, arrangement, or policy and
each plan or arrangement (written or oral, formal or informal) providing for
insurance coverage (including any self-insured arrangements), cafeteria
benefits under Section 125 of the Code, fringe benefits (including but not
limited to paid holidays, personal leave, employee discount, educational
benefit, or similar programs), workers' benefits, vacation benefits, severance
benefits, disability benefits, death benefits, retirement benefits, deferred
compensation, profit-sharing, bonuses, stock options, stock purchase, phantom
stock, stock appreciation or other forms of incentive compensation or
postretirement insurance or health benefits, compensation or benefits that (i)
is not a Xxxxxxx Plan, (ii) is or has been entered into, maintained, or
contributed to by Xxxxxxx or its ERISA Affiliates, and (iii) covers, or within
the last five years covered and has
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further or continuing obligations, any employee of Xxxxxxx or any Xxxxxxx
Subsidiary.
(2) "Xxxxxxx Plan" means any Employee Benefit Plan or
"multiemployer plan" as defined in Section 4001(a)(3) of ERISA (a) maintained
or contributed to by or on behalf of Xxxxxxx or any Xxxxxxx Subsidiary, whether
currently or within the six years prior to the Closing Date, or (b) in which
any employee of Xxxxxxx or any Xxxxxxx Subsidiary has participated, as an
employee of Xxxxxxx or any Xxxxxxx Subsidiary, within the six years prior to
the Closing Date, or under which any such employee has accrued and remains
entitled to any benefit.
(3) "Employee Benefit Plan" means any deferred
compensation, retirement, severance, health, or other plan or program
constituting an "employee benefit plan" as defined in Section 3(3) of ERISA
maintained or previously maintained for current or former employees of Xxxxxxx
or the Xxxxxxx Subsidiaries, or any ERISA Affiliate of Xxxxxxx or the Xxxxxxx
Subsidiaries or in which any such employees participate or participated, other
than a Multiemployer Plan.
(4) "ERISA" means the Employee Retirement Income
Security Act of 1974, as amended, and all regulations and published
interpretations promulgated thereunder, as in effect from time to time.
(5) "ERISA Affiliate" means each person (as defined in
Section 3(9) of ERISA) that, together with Xxxxxxx or a Xxxxxxx Subsidiary,
would be treated as a single employer under Section 4001(b) of ERISA or that
would be deemed to be a member of the same "controlled group" within the
meaning of Section 414(b), (c), (m), and (o) of the Code (provided, however,
that when the subject of the provision is a Multiemployer Plan only subsections
(b) and (c) of Section 414 shall be taken into account).
Section 4..16 Employment Matters; Labor Relations.
(a) Section 4.16 of the Xxxxxxx Disclosure Letter sets
forth a true and complete list of the names, classifications, dates of hire and
base compensation for the year ending December 31, 1995, of each employee of
Xxxxxxx and the Xxxxxxx Subsidiaries whose base compensation exceeds $75,000
per annum.
(b) With respect to current or former employees of Xxxxxxx
and the Xxxxxxx Subsidiaries,
(i) Each of Xxxxxxx and the Xxxxxxx Subsidiaries is in
substantial compliance with all applicable laws respecting employment and
employment practices, and occupational safety and health, except for such
violations, if any, that in the aggregate have not had and would not have a
Xxxxxxx Material Adverse Effect. There is no charge or compliance action
pending or threatened against or with respect to Xxxxxxx or any of the Xxxxxxx
Subsidiaries before the Equal Employment Opportunity Commission or any state,
local, or foreign agency responsible for the prevention of unlawful employment
practices as to which there is a reasonable likelihood of adverse
determination. None of Xxxxxxx nor any of the Xxxxxxx Subsidiaries has
received notice of the intent of any Federal, state, local or foreign agency
responsible for the enforcement of labor or employment laws to conduct an
investigation, and, to Xxxxxxx'x knowledge, no such investigation is in
progress.
(ii) The employees of Xxxxxxx and the Xxxxxxx
Subsidiaries are not represented by any labor union, nor are there any
collective bargaining agreements or any other types of agreements with labor
unions otherwise in effect with respect to such employees, nor are any
collective bargaining agreements currently being negotiated, and, to Xxxxxxx'x
knowledge, no union organizational campaign is in progress. None of Xxxxxxx or
the Xxxxxxx Subsidiaries is engaged in any unfair labor practices as defined in
the National Labor Relations Act or other
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19
applicable law, ordinance, or regulation. There is no unfair labor practice
charge or complaint against any of Xxxxxxx or the Xxxxxxx Subsidiaries pending
or, to Xxxxxxx'x knowledge, threatened before the National Labor Relations
Board. There is no labor strike, lockout, slow-down or work stoppage pending
or threatened against Xxxxxxx or any of the Xxxxxxx Subsidiaries. None of
Xxxxxxx and the Xxxxxxx Subsidiaries has experienced any significant work
stoppage or been party to any proceedings before the National Labor Relations
Board for the past three years.
Section 4..17 Intellectual Property.
(a) Except as set forth in Section 4.17 of the Xxxxxxx
Disclosure Letter, and except to the extent that the inaccuracy of any of the
following (or the circumstances giving rise to such inaccuracy), individually
and in the aggregate, would not have a Xxxxxxx Material Adverse Effect:
(i) Xxxxxxx and the Xxxxxxx Subsidiaries own, or are
licensed or otherwise have the right to use (in each case, clear of any lien or
encumbrance of any kind) all Intellectual Property (as defined below) that in
any material respect is used or proposed to be used in the business of Xxxxxxx
and the Xxxxxxx Subsidiaries.
(ii) No claims are pending, or to the knowledge of
Xxxxxxx, threatened that Xxxxxxx or any of the Xxxxxxx Subsidiaries is
infringing on or otherwise violating the rights of any person with regard to
any Intellectual Property owned by and/or licensed to Xxxxxxx or the Xxxxxxx
Subsidiaries.
(iii) To the knowledge of Xxxxxxx, no person is
infringing on or otherwise violating any right of Xxxxxxx or any Xxxxxxx
Subsidiary with respect to any Intellectual Property owned by and/or licensed
to Xxxxxxx or the Xxxxxxx Subsidiaries, provided, that the foregoing
representation is qualified to the extent of publicly known problems of general
applicability with respect to software piracy and copyright protection.
(iv) None of the former or current members of
management or key personnel of Xxxxxxx or any Xxxxxxx Subsidiary, including all
former and current employees, agents, consultants and contractors who have
contributed to or participated in the conception and development of designs,
computer software or other Intellectual Property of Xxxxxxx or the Xxxxxxx
Subsidiaries, has asserted in writing any claim against Xxxxxxx or any of the
Xxxxxxx Subsidiaries in connection with the involvement of such persons in the
conception and development of any design, computer software or other
Intellectual Property, and no such claim, to the knowledge of Xxxxxxx, has been
threatened.
(v) The execution and delivery of this Agreement,
compliance with its terms and the consummation of the transactions contemplated
hereby do not and will not conflict with or result in any violation or default
(with or without notice or the lapse of time) or give rise to any right,
license or encumbrance relating to the Intellectual Property, or any right of
termination, cancellation, or acceleration of any material Intellectual
Property right or obligation.
(b) For purposes of this Agreement, "Intellectual Property"
means (a) trademarks (registered on unregistered), service marks, brand names,
certification marks, trade dress, assumed names, trade names and other
indications of origin, the goodwill associated with the foregoing and
registrations in any jurisdiction of, and applications in any jurisdiction to
register, the foregoing, including any extension, modification or renewal of
any such registration or application; (b) inventions, discoveries and ideas,
whether patented, patentable or not in any jurisdiction; (c) nonpublic
information, trade secrets and confidential information and rights in any
jurisdiction to limit the use or disclosure thereof by any person; (d) writings
and other works, whether copyrighted,
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copyrightable or not in any jurisdiction; (e) registration or applications for
registration of copyrights in any jurisdiction, and any renewals or extensions
thereof; (f) any similar intellectual property or proprietary rights and
computer programs and software (including source code, object code and data);
(g) licenses, immunities, covenants not to xxx and the like relating to the
foregoing; and (h) any claims or causes of action arising out of or related to
any infringement or misappropriation of any of the foregoing.
(c) Except for the name "Xxxxxxx" and the Xxxxxxx logo,
there are no (i) material domestic and foreign registered trademarks,
registered copyrights and patents, and applications for registration of any of
the foregoing; (ii) material trade names, service marks, service names, logos
and assumed names which are owned by Xxxxxxx or any of the Xxxxxxx
Subsidiaries, as the case may be, and that are used or proposed to be used in
the business of Xxxxxxx and the Xxxxxxx Subsidiaries as currently conducted; or
(iii) material licenses and other agreements to which Xxxxxxx or any Xxxxxxx
Subsidiary is a party and pursuant to which Xxxxxxx is authorized to use any
Intellectual Property. To the knowledge of Xxxxxxx, all registered
Intellectual Property has been validly issued or registered and is subsisting.
Neither Xxxxxxx nor the Xxxxxxx Subsidiaries have taken or omitted to take any
act which act or omission might have the effect of waiving or impairing any of
the rights of Xxxxxxx to practice and enforce any patent, or to use and enforce
any trademark or copyright listed on Section 4.17 of the Xxxxxxx Disclosure
Letter.
Section 4..18 Insurance. Section 4.18 of the Xxxxxxx Disclosure Letter
contains a complete and correct list and accurate summary description of all
insurance policies and material completion bonds (including, without
limitation, professional liability coverage) maintained by or on behalf of or
covering Xxxxxxx and the Xxxxxxx Subsidiaries, their assets or operations, or
the conduct of their business. Xxxxxxx has made available to URS complete and
correct copies of all the declaration sheets or binders (if declaration sheets
are not yet issued) relating to such policies and bonds. Except as noted on
Section 4.18 of the Xxxxxxx Disclosure Letter, all such policies and bonds are
in full force and effect, no notices of cancellation or nonrenewal have been
received with respect thereto, and all premiums due thereon have been paid.
Xxxxxxx and the Xxxxxxx Subsidiaries have complied in all material respects
with the provisions of such policies and bonds. Such policies and bonds are of
the type and in amounts customarily carried by persons conducting businesses
similar to the business conducted by Xxxxxxx and the Xxxxxxx Subsidiaries.
Section 4..19. Compliance with Applicable Law. Xxxxxxx and the Xxxxxxx
Subsidiaries are not in violation of, or to Xxxxxxx'x knowledge, are neither
under investigation with respect to nor have been threatened to be charged with
or given notice of any violation of, any applicable laws, ordinances, rules and
regulations of any court, administrative agency or commission or other
governmental authority or instrumentality, whether domestic or foreign (each a
"Governmental Entity") applicable to Xxxxxxx or any Xxxxxxx Subsidiary, except
for such violations, if any, that, in the aggregate, have not had and would
not, in the reasonable judgment of Xxxxxxx, be likely to have a Xxxxxxx
Material Adverse Effect.
Section 4..20. Certain Contracts and Arrangements. Section 4.20 of the
Xxxxxxx Disclosure Letter lists all of the following agreements to which
Xxxxxxx or any of the Xxxxxxx Subsidiaries is a party ("Material Agreements"):
(a) Each partnership, joint venture or other similar
agreement or arrangement to which Xxxxxxx or any Xxxxxxx Subsidiary is a party
that has involved or is expected to involve an annual sharing of revenues of
$5,000,000 or more to other persons;
(b) Each lease for real or personal property in which the
amount of payments which Xxxxxxx or a Xxxxxxx Subsidiary is required to make
on an annual basis is $500,000 or more;
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(c) Each agreement of Xxxxxxx and the Xxxxxxx Subsidiaries
relating to indebtedness for borrowed money (whether incurred, assumed,
guaranteed or secured by any asset) in an aggregate outstanding principal
amount of $1,000,000 or more;
(d) Each other agreement, license or franchise which has not
been terminated or performed in its entirety and not renewed which may be, by
its terms, terminated, impaired or adversely affected by reason of the
execution of this Agreement, the closing of the Merger, or the consummation of
the transactions contemplated hereby or thereby, and the loss of which would,
individually or in the aggregate with other such agreements, licenses, or
franchises, have a Xxxxxxx Material Adverse Effect;
(e) Each agreement of Xxxxxxx or the Xxxxxxx Subsidiaries
with or for the benefit of any affiliate of Xxxxxxx with annual payments of
$50,000 or more;
(f) Each contract containing covenants purporting to
materially limit the freedom of Xxxxxxx or any Xxxxxxx Subsidiary to compete in
any line of business or in any geographic area; and
All Material Agreements are valid, binding and enforceable in accordance with
their terms and none of Xxxxxxx or the Xxxxxxx Subsidiaries nor, to the
knowledge of Xxxxxxx, any other party thereto, is in default under any of such
agreements, nor, to the knowledge of Xxxxxxx, has any event or circumstance
occurred that, with notice or lapse of time or both, would constitute any event
of default by Xxxxxxx or the Xxxxxxx Subsidiaries or any other party thereto
other than with respect to any of the foregoing such defaults, if any, that
would not, individually or in the aggregate, have a Xxxxxxx Material Adverse
Effect. To Xxxxxxx'x knowledge, none of the parties to the contracts
identified in this Section have terminated, or have expressed an intent to
reduce materially or terminate presently or in the future, such contracts.
Section 4..21 Prohibited Payments. Xxxxxxx has not, with respect to the
opportunities, business or operation of Xxxxxxx, (a) entered into any
understanding agreement or arrangement, written or oral, under or pursuant to
which bribes, kickbacks, rebates, payoffs or other forms of illegal payments
have been or will be made, provided for or suffered, either directly or
indirectly, through agents, brokers or other intermediaries, (b) made any
illegal payment or contribution of moneys, services or property to any
political party, candidate or elected official, directly or indirectly, for any
purpose or (c) directly or indirectly engaged in any activity prohibited by the
Foreign Corrupt Practices Act of 1977.
Section 4..22 Powers of Attorney. Xxxxxxx has not given a power of
attorney, except for revocable powers of attorney routinely granted in the
ordinary course of business which related to routine representations before
governmental agencies or given in connection with the qualification to conduct
business in other jurisdictions.
Section 4..23 Environmental Matters.
(a) (i) Xxxxxxx and each of the Xxxxxxx
Subsidiaries hold, and are in substantial compliance with, all Environmental
Permits, and with all applicable Environmental Laws, except where the failure
to hold such permits or to be in compliance would not have a Xxxxxxx Material
Adverse Effect.
(ii) Neither Xxxxxxx nor any of the
Xxxxxxx Subsidiaries has received any written request for information, or has
been notified that it is a potentially responsible party, under the Federal
Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
as amended, or any similar state law with respect to any on-site or off-site
location.
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(iii) No notice, notification, demand,
request for information, citation, summons, complaint or order has been issued,
no complaint has been filed, no penalty has been assessed and no investigation
or review (collectively, "Environmental Notices") is pending, or to Xxxxxxx'x
knowledge, threatened by any governmental entity or other person with respect
to any .1 alleged violation by Xxxxxxx or any of the Xxxxxxx Subsidiaries of
any Environmental Law or liability thereunder or .2 alleged failure by Xxxxxxx
or any of the Xxxxxxx Subsidiaries to have any Environmental Permit, except, in
each case, for Environmental Notices that would not have a Xxxxxxx Material
Adverse Effect.
(iv) To Xxxxxxx'x knowledge, there have been
no discharges, emissions or releases of Hazardous Substances by Xxxxxxx which
are or were reportable under Environmental Laws, other than such discharges,
emissions or releases that would not have a Xxxxxxx Material Adverse Effect.
(b) There has been no material environmental
investigation of Xxxxxxx, study, audit, test, review or other analysis
(including any Phase I environmental assessments) conducted of which Xxxxxxx
has knowledge in relation to any real property or lease which has not been
delivered to URS prior to the date hereof. Neither Xxxxxxx nor any of the
Xxxxxxx Subsidiaries is subject to any judgment, decree or order relating to
compliance with, or the cleanup of regulated substances under, any applicable
Environmental Law.
(c) For purposes of this Agreement: (i) the term
"Environmental Laws" means any and all applicable Federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, judicial orders, decrees, codes, injunctions, permits, consent
decrees, consent orders and governmental restrictions, now in effect, relating
to human health, the environment or to emissions, discharges or releases of
pollutants, contaminants, Hazardous Substances or wastes into the environment,
including without limitation ambient air, surface water, ground water or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, Hazardous Substances or wastes or the clean-up or other
remediation thereof; (ii) the term "Environmental Permits" means all permits
licenses, authorizations, certificates and approvals of governmental
authorities relating to or required by Environmental Laws and necessary or
proper for the business of Xxxxxxx and the Xxxxxxx Subsidiaries as currently
conducted; and (iii) "Hazardous Substance" means any toxic, radioactive,
caustic or otherwise hazardous substance, including petroleum, its derivatives,
by-products and other hydrocarbons, or any substance having any constituent
elements displaying any of the foregoing characteristics, including, without
limitation, any substance regulated under Environmental Laws.
Section 4..24 Regulatory Matters. Xxxxxxx has filed or
otherwise provided all reports, data, other information and applications which
are required to be filed with or otherwise provided to the U.S. Environmental
Protection Agency (the "EPA"), the U.S. Occupational Safety and Health
Administration ("OSHA"), and any other Federal, state, local or foreign
governmental authorities with jurisdiction and all regulatory approvals in
respect thereof are in full force and effect on the date hereof, the failure to
file or provide which or obtain which would, in the aggregate, result in a
Xxxxxxx Material Adverse Effect.
Section 4..25 Immigration Reform and Control Act.
(a) Xxxxxxx has fully complied with the
verification requirements and the recordkeeping requirements of the Immigration
Reform and Control Act of 1986 ("IRCA").
(b) To the best knowledge and belief of Xxxxxxx
and the Xxxxxxx Subsidiaries, the information and documents on which Xxxxxxx
relied in complying with IRCA are true and correct.
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23
(c) There have not been any discrimination
complaints filed against Xxxxxxx pursuant to IRCA.
Section 4..26 Board Approvals; Opinion of Financial Advisor.
The Board of Directors of Xxxxxxx (at a meeting duly called and held or
pursuant to valid written consent) has unanimously determined that the
transactions contemplated hereby are fair to and in the best interests of
Xxxxxxx and its stockholders. Xxxxxxx has received the opinion of Houlihan,
Lokey, Xxxxxx & Xxxxx, Inc. ("HL"), Xxxxxxx'x financial advisor, or another
financial advisor selected by Xxxxxxx and reasonably acceptable to URS,
substantially to the effect that the Merger consideration to be paid to holders
of the Xxxxxxx Common Stock in the Merger is fair to such stockholders from a
financial point of view.
Section 4..27 Brokers. No broker, finder or investment
banker is entitled to any brokerage, finder's fee or commission payable by
Xxxxxxx in connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of Xxxxxxx.
Section 4..28 Disclosure. No representation or warranty by
Xxxxxxx in this Agreement, the schedules hereto or any certificates delivered
pursuant to the terms hereof, contains or will contain an untrue statement of
material fact, or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which they were made, not misleading.
Section 4..29 Reliance. The foregoing representations and
warranties are made by Xxxxxxx with the knowledge and expectation that URS is
placing reliance thereon.
ARTICLE 5.
REPRESENTATIONS AND WARRANTIES OF URS
Except as otherwise disclosed to Xxxxxxx in a letter delivered
to it prior to the execution hereof (which letter shall contain appropriate
references to identify the representations and warranties herein to which the
information in such letter relates) (the "URS Disclosure Letter"), URS and the
Subsidiary represent and warrant to Xxxxxxx as follows:
Section 5..1 Organization. Each of URS and the Subsidiary is
a corporation duly organized, validly existing, and in good standing under the
laws of the jurisdiction of its incorporation and has all requisite corporate
power and authority to own, lease, and operate its properties, and to carry on
its business as now being conducted, except where the failure to be so
organized, existing, and in good standing or to have such power and authority
would not have a URS Material Adverse Effect. Each of URS and the Subsidiary
is duly qualified or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased, or operated by it or the
nature of the business conducted by it makes such qualification necessary,
except in any such jurisdictions where the failure to be so duly qualified or
licensed and in good standing would not have a URS Material Adverse Effect on
the Business Condition of URS. For purposes of this Agreement, "URS Material
Adverse Effect" means, when used in connection with URS, any change or effect
that is materially adverse to the Business Condition of URS, other than changes
or effects resulting from (i) changes attributable to conditions affecting the
engineering business generally, (ii) changes in general economic conditions, or
(iii) changes attributable to the announcement or pendency of the Merger.
Section 5..2 Capitalization. The authorized capital stock of
URS consists of 20,000,000 shares of URS Common Stock, par value $0.01 per
share, and 1,000,000 shares of preferred stock, par value $1.00 per share (the
"URS Preferred Stock"). As of the date hereof, (i) 7,167,591 shares of URS
Common Stock are issued and outstanding, (ii) options to acquire 1,166,324
shares of URS Common Stock are outstanding under all stock option
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xxxxx xxx xxxxxxxxxx xx XXX, (xxx) 1,559,665 shares of URS Common Stock
(including shares of URS Common Stock issuable upon exercise of the options
identified in clause (ii) above) are reserved for issuance pursuant to all
employee plans of URS, and (iv) there are no shares of URS Preferred Stock
outstanding. All of the issued and outstanding shares of URS Common Stock are
validly issued, fully paid and nonassessable and free of preemptive rights.
All of the URS Common Stock reserved for issuance in exchange for the shares of
the Xxxxxxx Common Stock at the Effective Time of the Merger in accordance with
this Agreement will be, when so issued, duly authorized, validly issued, fully
paid and nonassessable and free of preemptive rights. The authorized capital
stock of the Subsidiary consists of 100 shares of the Subsidiary Common Stock,
par value $1.00 per share, all of which shares are validly issued and
outstanding, fully paid and nonassessable and are owned by URS. Except as set
forth above or as specified in Section 5.2 of the URS Disclosure Letter, as of
the date of this Agreement there are no shares of capital stock of URS issued
or outstanding or any options, warrants, subscriptions, calls, rights,
convertible securities or other agreements or commitments obligating URS to
issue, transfer, sell, redeem, repurchase or otherwise acquire any shares of
its capital stock or securities. Except as provided in this Agreement or as
set forth in Section 5.2 of the URS Disclosure Letter, after the Effective Time
of the Merger, URS will have no obligation to issue, transfer or sell any
shares of its capital stock pursuant to any employee benefit plan or otherwise.
Section 5..3 Authority Relative to this Agreement. Each of
URS and the Subsidiary has all requisite corporate power and authority to enter
into this Agreement and subject, in the case of this Agreement, to the consents
and approvals set forth in Section 5.4 below, to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Agreement
by URS and the Subsidiary and the consummation by URS and the Subsidiary of the
transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of URS and the Subsidiary, including the unanimous
approval of their respective Boards of Directors, and no other corporate
proceedings on the part of URS or the Subsidiary are necessary to authorize
this Agreement or the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by URS and the Subsidiary and
constitutes a valid and binding agreement of each of them, enforceable against
each of them in accordance with its terms, except that such enforceability may
be subject to (i) bankruptcy, insolvency, reorganization or other similar laws
relating to enforcement of creditors' rights generally, and (ii) general
equitable principles.
Section 5..4 Consents and Approvals; No Violations. Except
for the applicable requirements of the Governmental Requirements, state or
foreign laws relating to takeovers, if applicable, state securities or blue sky
laws, state and local laws and regulations relating to licensing, and the
filing of the Documents of Merger as required by the Nevada Law, no filing
with, and no permit, authorization, consent or approval of, any Government
Entity is necessary for the execution, delivery and performance of this
Agreement by URS and the Subsidiary of the transactions contemplated by this
Agreement. Neither the execution, delivery nor performance of this Agreement
by URS and the Subsidiary, nor the consummation by URS and the Subsidiary of
the transactions contemplated hereby, nor compliance by URS and the Subsidiary
with any of the provisions hereof, will (i) conflict with or result in any
breach of any provisions of the Certificate of Incorporation or By-Laws of URS
or the Subsidiary or the Articles or Certificate of Incorporation, as the case
may be, or By-Laws of any of the URS Subsidiaries, (ii) except as set forth in
Section 5.4(ii) of the URS Disclosure Letter, result in a violation or breach
of, or constitute (with or without due notice or lapse of time or both) a
default (or give rise to any right of termination, cancellation, acceleration,
vesting, payment, exercise, suspension or revocation) under, any of the terms,
conditions or provisions of any note, bond, mortgage, deed of trust, security
interest, indenture, license, contract, agreement, plan or other instrument or
obligation to which URS or any of the URS Subsidiaries is a party or by which
any of them or any of their properties or assets may be
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bound or affected, (iii) except as set forth in Section 5.4(iii) of the URS
Disclosure Letter, violate any order, writ, injunction, decree, statute, rule
or regulation applicable to URS, any URS Subsidiary or any of their properties
or assets, (iv) except as set forth in Section 5.4(iv) of the URS Disclosure
Letter, result in the creation or imposition of any Lien on any asset of URS or
any URS Subsidiary, or (v) except as set forth in Section 5.4(v) of the URS
Disclosure Letter, cause the suspension or revocation of any certificates of
need, accreditation, registrations, licenses, permits and other consents or
approvals of governmental agencies or accreditation organizations, except in
the case of clauses (ii), (iii), (iv) and (v) for violations, breaches,
defaults, terminations, cancellations, accelerations, creations, impositions,
suspensions or revocations which would not individually or in the aggregate
have a URS Material Adverse Effect.
Section 5..5 URS SEC Reports and Financial Statements. URS
has delivered to Xxxxxxx true and complete copies of each registration
statement, report and proxy or information statement, including, without
limitation, its Annual Reports to Stockholders incorporated in material part by
reference in certain of such reports, in the form (including exhibits and any
amendments thereto) required to be filed with SEC since January 1, 1992
(collectively, the "URS SEC Reports"). Except as set forth in Section 5.5 of
the URS Disclosure Letter, as of the respective dates such URS SEC Reports were
filed or, if any such URS SEC Reports were amended, as of the date such
amendment was filed, each of the URS SEC Reports (i) complied in all material
respects with all applicable requirements of the Securities Act and the
Exchange Act, and the rules and regulations promulgated thereunder, and (ii)
did not 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 light of the circumstances under which they were made,
not misleading. Each of the audited consolidated financial statements and
unaudited consolidated interim financial statements of URS (including any
related notes and schedules) included (or incorporated by reference) in its
Annual Reports on Form 10-K for each of the three fiscal years ended October
31, 1992, 1993 and 1994, and to be included on Form 10-K for the fiscal year
ended October 31, 1995, when filed, and Quarterly Reports on Form 10-Q for all
interim periods subsequent thereto (the "URS Financial Statements") fairly
present, in conformity with GAAP applied on a consistent basis (except as may
be indicated in the notes thereto), the consolidated financial position of URS
and the URS Subsidiaries as of its date and the consolidated results of
operations and cash flows for the period then ended (subject to normal year-end
adjustments in the case of any unaudited interim financial statements). There
has been no change in URS's accounting policies or methods of making accounting
estimates or changes in estimates that are material to the URS Financial
Statements, except as described in the notes thereto.
Section 5..6 Information Supplied. None of the information
supplied or to be supplied by URS, the URS Subsidiaries, auditors, attorneys,
financial advisors, other consultants or advisors or the Subsidiary for
inclusion in the Form S-4 or the Proxy Statement/Form S-4, will, in the case of
the Proxy Statement and any amendment or supplement thereto, at the time of the
mailing of the Proxy Statement and any amendment or supplement thereto, and at
the time of any meeting of stockholders of Xxxxxxx to vote upon this Agreement
and the transactions contemplated hereby, or in the case of the Form S-4, as
amended or supplemented, at the time it becomes effective and at the time of
any post-effective amendment thereto contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances in
which they are made, not misleading or necessary to correct any statement in
any earlier filing with the SEC of such Proxy Statement/Form S-4 or any
amendment or supplement thereto or any earlier communication (including the
Proxy Statement/Form S-4) to stockholders of Xxxxxxx with respect to the
transactions contemplated by this Agreement. The Form S-4 and the Proxy
Statement/Form S-4 will comply as to form in all material respects with the
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provisions of all applicable laws including the provisions of the Securities
Act and the Exchange Act and the rules and regulations of the SEC thereunder,
except that no representation is made by URS with respect to information
supplied by Xxxxxxx specifically for inclusion therein.
Section 5..7 Board Approvals; Opinion of Financial Advisor.
The Boards of Directors of URS and the Subsidiary (at meetings duly called and
held or pursuant to valid written consents) have unanimously determined that
the transactions contemplated hereby are fair to and in the best interests of
URS and the Subsidiary and the stockholders of URS. URS has received the
opinion of Xxxxxx Xxxxxxx & Co. Incorporated ("MS"), URS's financial advisor,
substantially to the effect that the Merger consideration to be paid to holders
of the Xxxxxxx Common Stock in the Merger is fair to URS from a financial point
of view.
Section 5..8 Brokers. No broker, finder or investment
banker (other than MS) is entitled to any brokerage, finder's fee or commission
payable by URS in connection with the transactions contemplated by this
Agreement based upon arrangements made by or on behalf of URS.
Section 5..9 Disclosure. No representation or warranty by
URS in this Agreement, the schedules hereto or any certificates delivered
pursuant to the terms hereof, contains or will contain an untrue statement of
material fact, or omits or will omit to state a material fact necessary to make
the statements contained herein or therein, in light of the circumstances in
which they were made, not misleading.
ARTICLE 6.
PRE-CLOSING COVENANTS
Section 6..1 Covenants of All Parties. During the period
from the date of this Agreement until the earlier of the termination of this
Agreement or the Effective Time of the Merger, each of the parties hereto
covenants and agrees as follows;
6..1.1 Advice of Changes. Each party shall
promptly advise each of the other parties in writing (i) of any event occurring
subsequent to the date of this Agreement that would render any representation
or warranty of such party contained in this Agreement, if made on or as of the
date of such event or the Closing Date, untrue or inaccurate in any material
respect.
6..1.2 Regulatory Approvals. Each party
shall execute and file, or join in the execution and filing, of any application
or other document that may be necessary in order to obtain the authorization,
approval or consent of any governmental body, Federal, state or local or
foreign, which may be reasonably required, or which the other party may
reasonably request, in connection with the consummation of the transactions
contemplated by this Agreement, including, without limitation, filings under the
HSR Act. Each party shall use its best efforts to obtain all such
authorizations, approvals and consents.
6..1.3 Confidentiality. Each party shall
hold in confidence all nonpublic information until such time as such
information is otherwise publicly available and, if this Agreement is
terminated, each party will deliver to the other all documents, work papers and
other materials (including copies) obtained by such party or on its behalf from
the other party as a result of this Agreement or in connection herewith,
whether so obtained before or after the execution hereof. Each party shall
continue to abide by the terms of the confidentiality agreement between URS and
Xxxxxxx in effect as of the date hereof.
6..1.4 Best Efforts. Upon the terms and
subjectto the conditions herein provided, each of the parties hereto agrees to
use its best efforts to take or cause to be taken all actions, to do or cause
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to be done, and to assist and cooperate with the other party hereto in doing,
all things necessary, proper or advisable under applicable laws and
regulations, to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement, including (i)
using all reasonable efforts to obtain all necessary waivers, consents and
approvals from third parties, (ii) defending any lawsuits or other legal
proceedings, whether judicial or administrative, challenging this Agreement or
the consummation of the transactions contemplated hereby and thereby, and (iii)
executing and delivering such instruments, and taking such other actions as the
other party hereto may reasonably require in order to carry out the intent of
this Agreement.
6..1.5 Credit Agreement. The parties hereto
shall take all actions as may be reasonably necessary to fulfill the covenants
and conditions set forth in that certain Credit Agreement dated as of January
10, 1996 (the "Credit Agreement"), by and among URS, as Borrower, the lenders
listed therein as Lenders, and Xxxxx Fargo Bank, National Association, as
Administrative Agent.
Section 6..2 Covenants of Xxxxxxx. During the period from
the date of this Agreement until the earlier of the termination of this
Agreement or the Effective Time of the Merger, Xxxxxxx agrees (except as
expressly contemplated by this Agreement or with the prior written consent of
URS) that:
6.2.1 Conduct of Business Pending Merger.
(a) Ordinary Course. Xxxxxxx and the Xxxxxxx
Subsidiaries shall carry on their respective businesses in the usual, regular
and ordinary course in substantially the same manner as heretofore conducted
and, to the extent consistent with such businesses, use all reasonable efforts
to preserve intact their present business organizations, keep available the
services of their present officers and employees, and preserve their
relationships with customers, suppliers and others having business dealings
with Xxxxxxx and the Xxxxxxx Subsidiaries. Xxxxxxx shall promptly notify URS
of any event or occurrence or emergency not in the ordinary course of business,
of Xxxxxxx or the Xxxxxxx Subsidiaries, and material and adverse to the
Business Condition of Xxxxxxx. Neither Xxxxxxx nor any of the Xxxxxxx
Subsidiaries shall (except with the prior written consent of URS):
(i) accelerate, amend or change the period of
exercisability or vesting of options granted under any stock option plans or
restricted stock, stock bonus or other awards (including any discretionary
acceleration of the exercise periods by Xxxxxxx'x Board of Directors permitted
under such plans) or authorize cash payments in exchange for any options,
restricted stock, stock bonus or other awards granted under any of such plans;
(ii) grant any severance or termination pay
to any officer or director or, except in the ordinary course of business
consistent with past practices, to any employee of Xxxxxxx or any Xxxxxxx
Subsidiary;
(iii) except in the ordinary course of
business consistent with past practices and other than transfers between or
among Xxxxxxx and any Xxxxxxx Subsidiary, transfer to any person or entity any
rights to the Xxxxxxx Intellectual Property Rights;
(iv) commence a lawsuit other than: .1 for
the routine collection of bills; .2 in such cases where Xxxxxxx in good faith
determines that failure to commence suit would result in a material impairment
of a valuable aspect of Xxxxxxx'x business, provided Xxxxxxx consults with URS
prior to filing such suit; or .3 for a breach of this Agreement; and
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(v) enter into one or more leases which
extend for a period of two years beyond the date of this Agreement and which
obligate the Company to pay aggregate gross rent in excess of $500,000.
(b) Dividends; Changes in Stock. Xxxxxxx shall not,
and it shall not permit any of the Xxxxxxx Subsidiaries to, (i) declare or pay
any dividends on or make other capital distributions in respect of any of its
capital stock, except for intercompany dividends or regular quarterly cash
dividends in an amount which shall not exceed $0.075 per share to holders of
Xxxxxxx Common Stock and at times consistent with prior practice, (ii) split,
combine or reclassify any of its capital stock or issue or authorize or propose
the issuance of any other securities in respect of, in lieu of or in
substitution for shares of its capital stock, or (iii) repurchase, redeem or
otherwise acquire, any shares of its capital stock.
(c) Issuances of Securities. Xxxxxxx shall not, and
it shall not permit any of the Xxxxxxx Subsidiaries to, issue, deliver or sell,
or authorize or propose the issuance, delivery or sale of, any shares of its
capital stock or any securities convertible into such shares, or any rights,
warrants, calls, subscriptions or options to acquire, any such shares or
convertible securities, or any other ownership interests in such capital stock.
(d) Governing Documents. Xxxxxxx shall not, nor
shall it cause or permit any of the Xxxxxxx Subsidiaries to, amend its articles
or certificate of incorporation or by-laws.
(e) No Acquisitions. Xxxxxxx shall not, and it
shall not permit any of the Xxxxxxx Subsidiaries to acquire, or agree to
acquire by merging or consolidating with, or by purchasing a substantial equity
interest in or substantial portion of the assets of, or by any other manner,
any business or any corporation, partnership, association or other business
organization or division thereof.
(f) No Dispositions. Other than sales or licenses
of products or technology in the ordinary course of business consistent with
prior practice, Xxxxxxx shall not, and it shall not permit any of the Xxxxxxx
Subsidiaries to, sell, lease, license, encumber or otherwise dispose of, any of
its assets, except for such dispositions in the ordinary course of business or
in amounts which are not material, in the aggregate, to the business of
Xxxxxxx.
(g) Indebtedness. Xxxxxxx shall not, and shall not
permit any of the Xxxxxxx Subsidiaries to, incur any indebtedness for borrowed
money or guarantee any such indebtedness or sell any debt securities or
warrants or rights to acquire any debt securities of Xxxxxxx or any of the
Xxxxxxx Subsidiaries or guarantee any debt securities of others, except in the
ordinary course of business consistent with past practices.
(h) Plans; Compensation. Except as otherwise
provided in this Agreement, Xxxxxxx shall not, and shall not permit any of the
Xxxxxxx Subsidiaries to, adopt or amend in any material respect any Xxxxxxx
Plan or pay any pension or retirement allowance not required by any existing
Xxxxxxx Plan. Xxxxxxx shall not and shall not permit any Xxxxxxx Subsidiary
to, enter into any employment contracts, pay any special bonuses or special
remuneration to officers, directors or employees, or increase the salaries,
wage rates or fringe benefits of (i) any of its officers or employees whose
compensation exceeded $150,000 during the fiscal year ending December 31, 1995,
or (ii) any of its other officers and employees other than pursuant to
scheduled reviews under Xxxxxxx'x or the Xxxxxxx Subsidiary's normal
compensation review cycle, in all cases consistent with existing policies and
past practice.
(i) Tax Matters. Xxxxxxx shall not make any tax
election that would have a Xxxxxxx Material Adverse Effect or settle or
compromise any income tax liability of Xxxxxxx or any of the Xxxxxxx
Subsidiaries that would have a Xxxxxxx Material Adverse Effect.
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(j) Discharge of Liabilities. Xxxxxxx shall not,
and it shall not permit any of the Xxxxxxx Subsidiaries to, pay, discharge,
settle or satisfy any claims, liabilities or obligations, except in the
ordinary course of business or in amounts which are not material, individually
or in the aggregate, to the business of Xxxxxxx.
(k) Material Agreements. Except in the ordinary
course of business, neither Xxxxxxx nor any of the Xxxxxxx Subsidiaries shall
modify, amend, or terminate any Material Agreement or waive, release or assign
any material rights or claims under such Material Agreement.
(l) Agreement. Neither Xxxxxxx nor any of the
Xxxxxxx Subsidiaries shall agree or commit to do any of the actions described
in this Section 6.2.1.
6.2.2 Stockholders' Meeting; Proxy Statement.
Xxxxxxx shall hold a meeting of its stockholders at the earliest practicable
date to submit this Agreement and related matters for their consideration and
approval, which approval shall be recommended by Xxxxxxx'x Board of Directors
(subject to the fiduciary obligations of its directors and officers). Xxxxxxx
shall send to its stockholders, for the purpose of considering and voting upon
the Merger, a Proxy Statement satisfying all requirements of applicable state
and Federal laws, and Xxxxxxx shall be solely responsible for any statement,
information or omission in said Proxy Statement relating to it or its
affiliates.
6.2.3 Acquisition Proposals. From the date hereof
until the earlier of the termination of this Agreement or the consummation of
the Merger, Xxxxxxx and the Xxxxxxx Subsidiaries will not, and will cause their
respective officers, directors, employees, agents and representatives not to,
directly or indirectly, encourage, solicit, accept, initiate or conduct
discussions or negotiations with, provide any information to, or enter into any
agreement with, any corporation, partnership, limited liability company, person
or other entity or group concerning the acquisition of all or a substantial
part of the assets, business or capital stock of Xxxxxxx, whether through
purchase, merger, consolidation, exchange or any other business combination
(each of the foregoing, an "Acquisition Proposal"). Notwithstanding anything
to the contrary in the preceding sentence, nothing herein shall prevent Xxxxxxx
and its officers and directors, from responding to and considering unsolicited
firm offers for any such transaction from persons other than URS if and to the
extent that, in the written opinion of Xxxxxxx'x outside counsel, failure to do
so would be reasonably likely to constitute a violation of applicable law or a
breach of the fiduciary duties of Xxxxxxx'x directors to Xxxxxxx'x
stockholders. Xxxxxxx shall immediately provide written notice to URS of the
terms and other details of any such unsolicited inquiry or proposal relating to
an Acquisition Proposal. In the event that Xxxxxxx or any of its officers or
directors enters into any such negotiations or discussions for any reason which
thereby constitute a breach of this Section 6.2.3, Xxxxxxx shall immediately
reimburse URS for all expenses and costs incurred by URS in connection with the
transactions contemplated by this Agreement. In the event that Xxxxxxx or any
of its officers or directors shall enter into any letter of intent,
understanding or other agreement with a party other than URS relating to the
acquisition of all or a substantial part of the assets, business or capital
stock of Xxxxxxx, whether through purchase, merger, consolidation, exchange or
any other business combination, either in violation of the no-shop agreement
set forth in this Section or within nine (9) months after termination of this
Agreement for any reason, then immediately upon entering into such letter of
intent, understanding or other agreement, Xxxxxxx shall pay to URS a
termination fee in the amount of $5.0 million (the "Termination Fee");
provided, however, that such Termination Fee shall not be payable if, prior to
the entry by Xxxxxxx into such letter of intent, understanding or other
agreement, URS has unilaterally declined to close the Merger. The parties
acknowledge and agree that the expense reimbursement obligation and Termination
Fee described in this Section shall not be the exclusive remedy to URS in the
event of a breach by Xxxxxxx of this Agreement, and, in any such event, URS
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shall be entitled, in addition to receiving such payments, to equitable
remedies, including, without limitation, specific performance and enjoining of
any actions determined to be in breach of this Agreement.
6.2.4 Maintenance of Business. Xxxxxxx will use
its best efforts to carry on and preserve its business and its relationships
with clients, customers, suppliers, employees and others in substantially the
same manner as it has prior to the date hereof. If Xxxxxxx becomes aware of a
deterioration in the relationship with any client, customer, supplier or key
employee, it will promptly bring such information to the attention of URS in
writing and, if requested by URS, will use its best efforts to restore the
relationship.
6.2.5 Access. Xxxxxxx shall afford to URS and to
URS's financial advisors, legal counsel, accountants, financing sources and
other authorized representatives access during normal business hours to all of
its books, records, properties, offices and personnel.
6.2.6 Liability Insurance.
(a) On or before the Closing Date,
Xxxxxxx shall procure (subject to the approval of URS) continuing directors'
and officers' liability coverage (tail coverage) for directors and officers of
Xxxxxxx who have served as directors and officers of Xxxxxxx or its affiliates
(the "Xxxxxxx D & O Policy"), prior to the Effective Time of the Merger, with
respect to acts or failures to act prior to the Effective Time of the Merger.
Said policy shall have a term of not less than three (3) years after the
Closing Date.
(b) On or before the Closing Date,
Xxxxxxx shall procure (subject to the approval of URS) continuing fiduciary
liability coverage (tail coverage) for employees of Xxxxxxx who have served as
fiduciaries under any Xxxxxxx Plan (the "Xxxxxxx Fiduciary Policy") prior to
the Effective Time of the Merger, with respect to acts or failures to act prior
to the Effective Time of the Merger. Said policy shall have a term that shall
expire not less than one (1) year after the expiration of the term of the ESOP
portion of The Performance Plan and Stock Ownership Plan of Xxxxxxx
Engineering, Inc.
Section 6..3 Covenants of URS. During the period from the
date of this Agreement until the earlier of the termination of this Agreement
or the Effective Time of the Merger, URS and the Subsidiary agree (except as
expressly contemplated by this Agreement or with the prior written consent of
Xxxxxxx) that:
6.3.1 Registration Statement. The URS Common Stock
to be issued in the Merger shall be registered under the 1933 Act on Form S-4.
As promptly as practicable after the date hereof, URS shall prepare and file
with the SEC the Form S-4 and any other documents required by the 1933 Act in
connection with the Merger. URS shall use its best efforts to have the Form
S-4 declared effective as promptly as practicable after such filing. URS shall
also take any action required to be taken under any applicable state securities
or "blue sky" laws in connection with the issuance of the URS Common Stock in
connection with the Merger.
6.3.2 Listing Agreement. As promptly as practicable
after the date hereof, URS shall prepare and submit to each of the New York
Stock Exchange and the Pacific Stock Exchange a listing application covering
the shares of the URS Common Stock to be issued in connection with the Merger.
URS shall use its best efforts to obtain, prior to the Effective Time of the
Merger, approval for the listing of such URS Common Stock, subject to official
notice of issuance.
ARTICLE 7.
CONDITIONS TO CONSUMMATION OF THE MERGER
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Section 7..1 Conditions to Obligations of Xxxxxxx. The
obligations of Xxxxxxx to effect the Merger shall be subject to the
satisfaction at or prior to the Effective Time of the Merger of the following
conditions:
7..1.1 Representations and Warranties True at
Closing. The representations and warranties contained in this Agreement of URS
and the Subsidiary shall be deemed to have been made again at and as of the
Closing with respect to the stated facts then existing and shall be true in all
material respects.
7..1.2 Covenants Performed. All of the
obligations of URS and the Subsidiary to be performed at or before the Closing
pursuant to the terms of this Agreement shall be been duly performed.
7..1.3 Certificate. At the Closing, Xxxxxxx
shall have received a Certificate signed by the President of each of URS and
the Subsidiary to the effect that each of the conditions set forth in Section
7.1.1 and 7.1.2 have been satisfied.
7..1.4 Approval of Stockholders. This
Agreement and the Merger shall have been approved by the stockholders of
Xxxxxxx.
7..1.5 Opinion of Counsel. Sheppard, Mullin,
Xxxxxxx & Xxxxxxx, counsel to URS, shall have issued an opinion of counsel to
Xxxxxxx, dated the Effective Time of the Merger, in form and substance
reasonably satisfactory to Xxxxxxx, to the effect that:
(i) URS is a corporation validly
existing and in good standing under the laws of the State of
Delaware and has all requisite corporate power to own, operate
and lease its properties and to carry on its business as it is
now being conducted;
(ii) URS has full corporate power to
enter into this Agreement and to carry out the transactions
provided for herein;
(iii) All corporate action required to
be taken on the part of URS to authorize it to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby have been duly and validly taken.
(iv) This Agreement has been duly and
validly authorized, executed and delivered by URS and,
assuming due authorization, execution, delivery and
performance by each of the other parties hereto, constitutes
the valid and binding obligation of URS, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy or other laws relating to or
affecting creditors' rights generally and by equitable
principles; and
(v) The shares of URS Common Stock
issuable in connection with the Merger have been duly and
validly authorized and, upon issuance, such shares will be
fully paid and nonassessable.
In giving such opinions, such counsel shall be
entitled to rely upon certificates of officers of URS or any of its
subsidiaries and public officials with respect to factual matters upon which
their opinions may be based, provided that the extent of such reliance is set
forth in such opinion and such opinion states that it is reasonable for Xxxxxxx
to rely thereon.
7..1.6 Form S-4. The Form S-4 pertaining to
the URS Common Stock to be issued in connection with the Merger shall have
become
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effective under the 1933 Act and shall not be the subject of any stop order or
proceedings seeking a stop order.
7..1.7 Merger Documents. The Merger
Documents shall have been filed with the Secretary of State of the State of
Nevada, as required by law.
7..1.8 Material Adverse Changes. There shall
have been no URS Material Adverse Effect between the date of this Agreement and
the date of the Closing.
7..1.9 HSR Filing. Any waiting period
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated, and no action shall have been instituted by the
Department of Justice or Federal Trade Commission challenging or seeking to
enjoin the consummation of the transaction contemplated by this Agreement,
which action shall not have been withdrawn or terminated.
Section 7..2 Conditions to Obligations of URS and the
Subsidiary. The obligations of URS and the Subsidiary to effect the Merger
shall be subject to the satisfaction at or prior to the Effective Time of the
Merger of the following conditions:
7..2.1 Representations and Warranties True at
Closing. The representations and warranties contained in this Agreement of
Xxxxxxx shall be deemed to have been made again at and as of the Closing with
respect to the stated facts then existing and shall be true in all material
respects.
7..2.2 Covenants Performed. All of the
obligations of URS and the Subsidiary to be performed at or before the Closing
pursuant to the terms of this Agreement shall be been duly performed.
7..2.3 Certificate. At the Closing, URS and
the Subsidiary shall have received a Certificate signed by the President of
Xxxxxxx to the effect that each of the conditions set forth in Section 7.2.1
and 7.2.2 have been satisfied.
7..2.4 Approval of Stockholders. This
Agreement and the Merger shall have been approved by the stockholders of
Xxxxxxx.
7..2.5 Opinion of Counsel. Nossaman,
Guthner, Xxxx & Xxxxxxx, counsel to Xxxxxxx, shall have issued an opinion of
counsel to URS, dated the Effective Time of the Merger, in form and substance
reasonably satisfactory to URS, to the effect that:
(i) Xxxxxxx is a corporation validly
existing and in good standing under the laws of the State of
Nevada and has all requisite corporate power to own, operate
and lease its properties and to carry on its business as it is
now being conducted;
(ii) Xxxxxxx has full corporate power
to enter into this Agreement and to carry out the transactions
provided for herein;
(iii) All corporate action required to
be taken on the part of Xxxxxxx to authorize it to execute and
deliver this Agreement and to consummate the transactions
contemplated hereby have been duly and validly taken; and
(iv) This Agreement has been duly and
validly authorized, executed and delivered by Xxxxxxx and,
assuming due authorization, execution, delivery and
performance by each of the other parties hereto, constitutes
the valid and binding obligation of Xxxxxxx, enforceable in
accordance with its terms, except as such enforceability may
be limited by bankruptcy or other laws
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relating to or affecting creditors' rights generally and by
equitable principles.
In giving such opinions, such counsel shall be
entitled to rely upon certificates of officers of Xxxxxxx or any of its
subsidiaries and public officials with respect to factual matters upon which
their opinions may be based, provided that the extent of such reliance is set
forth in such opinion and such opinion states that it is reasonable for URS to
rely thereon.
7..2.6 Form S-4. The Form S-4 pertaining to
the URS Common Stock to be issued in connection with the Merger shall have
become effective under the 1933 Act and shall not be the subject of any stop
order or proceedings seeking a stop order.
7..2.7 Merger Documents. The Merger
Documents shall have been filed with the Secretary of State of the State of
Nevada, as required by law.
7..2.8 Material Adverse Changes. There shall
have been no Xxxxxxx Material Adverse Effect between the date of this Agreement
and the date of the Closing.
7..2.9 HSR Filing. Any waiting period
applicable to the consummation of the Merger under the HSR Act shall have
expired or been terminated, and no action shall have been instituted by the
Department of Justice or Federal Trade Commission challenging or seeking to
enjoin the consummation of the transaction contemplated by this Agreement,
which action shall not have been withdrawn or terminated.
7..2.10 Consents. Other than the filing of
the Merger Documents as contemplated in Section 1.2, the parties shall have made
such filings, and obtained all consents of Governmental Entities, required to
consummate the transactions contemplated hereby.
7..2.11 No Litigation. There shall not be
pending any action, proceeding or other application before any court or
Government Entity brought by any Government Entity (i) challenging or seeking
to restrain or prohibit the consummation of the transactions contemplated by
this AGreement, or seeking to obtain any material damages, or (ii) seeking to
prohibit or impose any material limitations on URS's ownership or operation of
all or any portion of the combined business of URS and Xxxxxxx.
7..2.12 Credit Agreement. The conditions set
forth in Sections 4.2, 4.3 and 4.4 of the Credit Agreement shall have been
satisfied.
ARTICLE 8.
ADDITIONAL AGREEMENTS
Section 8..1 Public Announcements. URS, the Subsidiary and
Xxxxxxx agree that they will not issue any press release or otherwise make any
public statement or respond to any press inquiry with respect to this Agreement
or the transactions contemplated hereby without the prior approval of the other
party (which approval will not be unreasonably withheld), except as may be
required by applicable law.
Section 8..2 Confidentiality. No party to this Agreement
shall use or disclose any non-public information obtained from another party
for
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any purpose unrelated to the Merger, and, if this Agreement is terminated for
any reason whatsoever, each party shall return to the other all originals and
copies of all documents and papers containing all information furnished to such
party pursuant to this Agreement, or during the negotiations which preceded
this Agreement, and shall neither use nor disclose any such information except
to the extent that such information is available to the public, is rightfully
obtained from third parties, or is independently developed.
Section 8..3. Additional Agreements. In case at any time
after the Effective Time of the Merger any further action is reasonably
necessary or desirable to vest the Surviving Corporation with full title to all
properties, assets, rights, approvals, immunities and franchises of either of
the constituent corporations, the proper officers and directors of each
corporation which is a party to this Agreement shall take all such necessary
corporate action.
Section 8..4. Use of Name. Without limiting the right of URS
to conduct its business in such manner as it deems appropriate, URS intends,
following the Closing Date, and for the foreseeable period thereafter, to
maintain Xxxxxxx as a separate subsidiary operating under its own existing
name.
Section 8..5. Employee Matters. After the Closing Date, URS
will use reasonable efforts to maintain the business of Xxxxxxx and, in
particular, without limitation, URS will use best efforts to maintain health,
medical, dental and other benefits for Xxxxxxx employees for a reasonable
period after the Closing Date which, in the aggregate, are reasonably
comparable to benefits provided to Xxxxxxx employees prior to the Closing Date,
subject to reasonable business practices and changing conditions.
Section 8..6. Non-Liability of Agents and Stockholders. No
stockholder, director, officer or employee of any party hereto shall be
individually liable for any breach of the representations, warranties or
covenants of any party hereto contained herein in the absence of fraud or
willful misconduct on the part of such stockholder, director, officer or
employee.
Section 8.7 The Performance Plan and Stock Ownership Plan of
Xxxxxxx Engineering, Inc. URS, the Xxxxxxx Subsidiaries and Xxxxxxx agree that
as soon as practical following the execution of this Agreement, effective as of
the Closing Date and contingent on closing the Merger, The Performance Plan and
Employees Stock Ownership Plan of Xxxxxxx Engineering, Inc. (the "Plan") will
be amended to cease to be an employee stock ownership plan within the meaning
of Section 4975(e)(7) of the Code ("ESOP"), but will be continued as a profit
sharing plan, subject to the terms of the Plan document regarding amendment
and/or termination. Such Plan amendment will provide that the cash proceeds
received by the Plan pursuant to this Agreement will not be reinvested in URS
or Xxxxxxx stock, but shall be reinvested in the various investment options
available under the non-ESOP portion of the Plan, as directed by Plan
Participants, and that employer stock will no longer be one of the investment
options offered under the Plan. URS stock received pursuant to this Agreement
shall continue to be held by the Plan, subject to the investment discretion of
the Plan's trustee, but no additional investments in URS stock shall be
permitted, and, unless URS agrees otherwise, Plan Participants shall not have
investment discretion with respect to the URS stock so held. In addition, in
the event that as of the Closing Date, the aggregate value of the unvested ESOP
portion of the Plan accounts shall be less than $1,000,000 (for purposes of
this Section 8.7, unvested shares of Xxxxxxx stock shall be valued at an amount
equal to the closing price of the Xxxxxxx stock as reported on the New York
Stock Exchange on the trading day immediately preceding the Closing Date, as
listed in The Wall Street Journal), URS, the Xxxxxxx Subsidiaries and Xxxxxxx
agree that as soon as practical following the execution of this Agreement,
effective as of the Closing Date and contingent on the closing of the Merger,
the Plan will be
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amended so that Plan Participants will be fully vested in the ESOP portion of
their accounts as of the Closing Date. The parties shall cooperate and take
all steps as may be reasonably necessary to effect the foregoing.
ARTICLE 9.
TERMINATION
Section 9..1. Termination. This Agreement may be terminated
at any time prior to the Effective Time, whether before or after the approval
by the stockholders of Xxxxxxx (the "Stockholder Approval") has been obtained:
9..1.1 by mutual written consent of URS and
Xxxxxxx;
9..1.2 by either Xxxxxxx or URS if (i) the
Stockholder Approval shall not be obtained by reason of stockholders holding a
majority of the Xxxxxxx Common Stock failing to vote in favor of approval of
this Agreement at a meeting of stockholders or any adjournment thereof; (ii) a
Governmental Entity of competent jurisdiction shall have issued an order,
decree or ruling or taken any other action permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this Agreement and
such order, decree, ruling or other action shall have become final and
nonappealable; or (iii) the Merger shall not have been consummated before
September 30, 1996 (provided that the terminating party is not then in material
breach of any representation, warranty, covenant or agreement contained in this
Agreement);
9..1.3 By URS if there has been a breach by
Xxxxxxx of any representation, warranty, covenant or other agreement in this
Agreement which has a Xxxxxxx Material Adverse Effect, and such breach has not
been cured, or Xxxxxxx has not commenced reasonable efforts to cure such breach,
within thirty (30) days after written notice of such breach is given by URS to
Xxxxxxx;
9..1.4 By URS if Xxxxxxx shall enter into any
discussions, negotiations or any letter of intent, understanding or other
agreement relating to an Acquisition Proposal, provided that no such
termination shall effect the rights of URS to reimbursement of expenses and the
Termination Fee as provided in Section 6.2.3; or
9..1.5 By Xxxxxxx if there has been a breach by
URS or the Subsidiary of any material representation, warranty, covenant or
other agreement, and such breach has not been cured, or URS and the Subsidiary
have not commenced reasonable efforts to cure such breach, within thirty (30)
days after written notice of such breach is given by Xxxxxxx to URS.
9..1.6 By Xxxxxxx if any of the conditions set
forth in Section 7.1 hereof shall not have been fulfilled on or prior to the
date specified for fulfillment thereof, or shall have become impossible to
fulfill for reasons beyond the control of Xxxxxxx, and such condition shall not
have been waived.
9..1.7 By URS if any of the conditions set forth
in Section 7.2 hereof shall not have been fulfilled on or prior to the date
specified for fulfillment thereof, or shall have become impossible to fulfill
for reasons beyond the control of URS, and such condition shall not have been
waived.
Where action is taken to terminate this Agreement pursuant to this Section 9.1,
it shall be sufficient for such action to be authorized by the Board of
Directors of the party taking such action without any requirement to submit
such action to the stockholders of such party.
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Section 9..2. Effect of Termination and Abandonment. In the
event of termination of the Agreement by either Xxxxxxx or URS as provided in
Section 9.1, this Agreement shall forthwith become void and have no effect, and
there shall be no liability or obligation on the part of Xxxxxxx, XXX or the
Subsidiary, or their respective officers and directors, except that (i) the
provisions of Section 6.2.3, this Section 9.2, and the Confidentiality
Agreement shall survive any such termination, and (ii) no party whose breach of
its representations, warranties, covenants or agreements set forth in this
Agreement was the basis of the other party's termination of this Agreement
shall be relieved from liability for damages occasioned by such breach,
including any expenses incurred by the other party in connection with this
Agreement and the transactions contemplated hereby; provided, however, that in
the event such breach is the result of negligence, such damages shall not
exceed the sum of $500,000; but, provided, further, that in the event that such
breach is the result of recklessness or willful conduct, the amount of damages
shall not be limited hereby.
Section 9..3. Amendment. This Agreement may be amended by
the parties hereto, by action taken by their respective Boards of Directors at
any time before or after the approval of the stockholders of Xxxxxxx (the
"Stockholder Approval"), but after the Stockholder Approval, no amendment shall
be made which by law requires the further approval of stockholders without
obtaining such approval. This Agreement may not be amended except by an
instrument in writing signed on behalf of each of the parties hereto.
Section 9..4. Extension; Waiver. At any time prior to the
Effective Time of the Merger, any party hereto, by action taken by its Board of
Directors may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties
hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements, covenants, 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. The failure of any party to this
Agreement to assert any of its rights under this Agreement shall not constitute
a waiver of these rights.
ARTICLE 10.
MISCELLANEOUS
Section 10..1 Survival of Representations and Warranties. No
representations or warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive beyond the Effective Time of the
Merger. This Section 10.1 shall not limit any covenant or agreement after the
Effective Time of the Merger.
Section 10..2 Entire Agreement; Modification; Waiver. This
Agreement constitutes the entire agreement among the parties pertaining to the
subject matter contained herein and supersedes all prior and contemporaneous
agreements, representations and undertakings of the parties. No supplement,
modification or amendment of this Agreement shall be binding unless executed in
writing by all the parties. No waiver of any of the provisions of this
Agreement shall be deemed, or shall constitute, a waiver of any other
provision, whether or not similar, nor shall any waiver constitute a continuing
waiver. No waiver shall be binding unless executed in writing by any party
making the waiver.
Section 10..3 Counterparts. This Agreement may be executed
simultaneously in one or more counterparts, each of which shall be deemed in
original, but all of which together shall constitute one and the same
instrument.
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Section 10..4 Assignment. This Agreement shall be binding
on, and shall inure to the benefit of, the parties to it and their respective
heirs, legal representatives, successors and assigns, but neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto without the prior written consent of the
other parties hereto.
Section 10..5 Fees and Expenses. Each of the parties shall
pay their own fees, costs and expenses (including, without limitation, legal
and accounting expenses) incurred, or to be incurred, by them in negotiating
and preparing this Agreement and in closing and carrying out the transactions
contemplated by this Agreement.
Section 10..6 Notices. All notices, requests, demands and
other communications under this Agreement shall be in writing and shall be
deemed to have been duly given on the date of service if served personally or
by facsimile on the party to whom notice is to be given, or on the fifth day
after mailing, if mailed to the party on whom notice is to be given, by
registered or certified mail, postage prepaid, and properly addressed as
follows:
If to URS and the Subsidiary:
URS Corporation
000 Xxxxxxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxxxxxxx, XX 00000-0000
Attn: Xxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
with a copy to:
Sheppard, Mullin, Xxxxxxx & Hampton
Xxxx Xxxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx, Esq.
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
If to Xxxxxxx:
Xxxxxxx Engineering, Inc.
000 X. Xxx Xxxxxxx Xxxx.,
Xxxxx 0000, XX 44
Xxxxxx, XX 00000-0000
Attn: Xxxxxxx X. XxXxxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
with a copy to:
Nossaman, Guthner, Xxxx & Xxxxxxx
000 X. Xxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000-0000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Confirmation: (000) 000-0000
Any party may change its address for purposes of this Section by giving the
other party written notice of the new address in the manner set forth above.
Section 10..7 Governing Law. This Agreement shall be
construed in accordance with, and governed by, the laws of the State of
California, United States of America, without giving effect to provisions
thereof relating to conflicts of law.
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Section 10..8 Further Action. Each of the parties hereto
shall use such party's best efforts to take such action as may be necessary or
reasonably requested by the other party hereto to carry out and consummate the
transactions contemplated by this Agreement.
Section 10..9 No Third Party Beneficiary. Nothing herein is
intended to create rights in any third party.
Section 10..10 Effect of Headings. The subject headings of
the Articles and Sections of this Agreement are included for purposes of
convenience only, and shall not affect the construction or interpretation of
any of its provisions.
Section 10..11 Severability. If any term of this Agreement
or application thereof shall be invalid or unenforceable, the remainder of this
Agreement shall remain in full force and effect.
IN WITNESS WHEREOF, the parties to this Agreement
have duly executed it on the day and year first above written.
XXXXXXX: XXXXXXX ENGINEERING, INC.
By: /s/ XXXXXX XXXXXXXX
-------------------------
Title: President and Chief
Executive Officer
URS URS CORPORATION
By: /s/ XXXX XXXXXXXXX
-------------------------
Title: Vice President and
Chief Financial Officer
THE SUBSIDIARY URS ACQUISITION CORPORATION
By: /s/ XXXX XXXXXXXXX
-------------------------
Title: Vice President and
Chief Financial Officer
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