Exhibit 2.1
STOCK PURCHASE AGREEMENT
DATED SEPTEMBER 24, 1996
by and between
OPEN PLAN SYSTEMS, INC.,
and
IMMACULATE EAGLE, INC., d/b/a
TFM TOTAL FACILITIES MANAGEMENT
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS, THE ACQUISITION, PURCHASE PRICE
AND SUBSEQUENT NONCOMPETITION........................................................ 2
Section 1.1 Definitions........................................................ 2
Section 1.2 Sale and Purchase of TFM Stock..................................... 7
Section 1.3 Purchase Price..................................................... 7
Section 1.4 Payment of Purchase Price.......................................... 8
Section 1.5 Delivery of TFM Stock Certificates................................. 8
Section 1.7 Transfer of Siimon Stock........................................... 9
Section 1.8 Employment of Principal Employees and Key Employee................. 10
ARTICLE 2 CLOSING..................................................................... 10
Section 2.1 Closing............................................................ 10
ARTICLE 3 CONDITIONS PRECEDENT........................................................ 10
Section 3.1 Conditions Precedent to Obligation of OPS.......................... 10
Section 3.2 Conditions Precedent to the Obligation of TFM and the
Shareholders................................................................ 13
Section 3.3 Effect of Waiver of Covenant....................................... 15
Section 3.4 Satisfaction of Conditions Precedent............................... 15
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.............................................. 15
Section 4.1 Representations and Warranties of the Shareholders................. 15
Section 4.2 Representations and Warranties of OPS.............................. 31
ARTICLE 5 ADDITIONAL COVENANTS........................................................ 36
Section 5.1 Reasonable Best Efforts to Consummate.............................. 36
Section 5.2 Public Statements.................................................. 36
Section 5.3 Participation in Plans............................................. 36
Section 5.4 SEC Matters........................................................ 37
Section 5.5 Payoff of Certain TFM Debt......................................... 37
Section 5.6 Contingent Payment................................................. 38
Section 5.7 Interest applicable to Nonpayment of Obligations................... 39
Section 5.8 Operation of TFM and Siimon........................................ 40
ARTICLE 6 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
AND INDEMNIFICATION.................................................................. 40
Section 6.1 Survival of Representations and Warranties by
Shareholders................................................................ 40
Section 6.2 Indemnification by Shareholders.................................... 40
Section 6.3 Survival of Representations and Warranties of OPS.................. 42
Section 6.4 Indemnification by OPS............................................. 42
Section 6.5 Assertion and Defense of Indemnification Claim..................... 43
Section 6.6 Computation of Indemnity Payments.................................. 45
Section 6.7 Dispute Resolution................................................. 45
Section 6.8 Exclusive Remedy................................................... 47
ARTICLE 7 MISCELLANEOUS............................................................... 47
Section 7.1 Termination and Abandonment........................................ 47
Section 7.2 Fees and Expenses.................................................. 48
Section 7.3 Notices............................................................ 48
Section 7.4 Entire Agreement................................................... 50
Section 7.5 Binding Effect; Benefit............................................ 50
Section 7.6 Section Headings................................................... 50
Section 7.7 Counterparts....................................................... 50
Section 7.8 Applicable Law..................................................... 50
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STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT, dated September 24, 1996 (the
"Agreement"), is by and between OPEN PLAN SYSTEMS, INC., a Virginia corporation
("OPS"), and IMMACULATE EAGLE, INC., d/b/a TFM TOTAL FACILITIES MANAGEMENT, a
Michigan corporation ("TFM"), and ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, each a
Michigan resident and a shareholder of TFM (individually, the "Shareholder," and
together, the "Shareholders"), and, for the limited purposes set forth herein,
SIIMON, INC., a Michigan corporation ("Siimon").
BACKGROUND STATEMENT
Each of the Shareholders named in Exhibit A holds capital stock of TFM.
OPS desires to acquire TFM through the purchase of all of the issued and
outstanding shares of capital stock of TFM, and TFM desires to become a
wholly-owned subsidiary of OPS, in exchange for the consideration set forth
below and on the terms and conditions set forth in this Agreement and the
related documents to be executed and delivered in connection herewith.
STATEMENT OF AGREEMENT
In exchange for the mutual promises and undertakings set forth below,
the parties hereby agree as follows:
ARTICLE 1
DEFINITIONS, THE ACQUISITION, PURCHASE PRICE AND SUBSEQUENT
NONCOMPETITION
Section 1.1 Definitions. The following terms shall have the
indicated meanings unless the context requires otherwise:
Affiliate or Affiliates shall mean those Persons (as defined
below) who effectively control, are effectively controlled by, or are
effectively under common control with, a company, or any successor thereof, to
such an extent that transactions between such parties are controlled by the
relationship between the parties rather than market forces.
Cash Consideration shall have the meaning set forth in Section
1.4.
Closing shall mean the closing of this Agreement and the
transactions contemplated hereby, to take place at the offices of Williams,
Mullen, Christian & ▇▇▇▇▇▇▇, Richmond, Virginia, at 10:00 a.m. eastern time on
the Closing Date, as such term is herein defined. Closing Date shall mean
September 24, 1996, or such other date as agreed to by the parties.
Comerica shall mean Comerica Bank, a Michigan banking
corporation. Contingent Payment shall have the meaning set
forth in Section 5.6.
Days shall mean business days.
Distribution Date shall mean the later of October 1, 1998, or
the date that is two years after the Closing Date of the transactions
contemplated by this Agreement.
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Distribution Date Per Share Price shall have the meaning set
forth in Section 5.6.
Effective Time shall mean 12:01 a.m. eastern time on the
Effective Date.
Effective Date shall mean October 1, 1996.
Employment Agreements shall have the meaning set forth in
Section 1.8.
ERISA shall mean the Employee Retirement Income Security Act
of 1974, as amended.
Escrow Agent shall mean Crestar Bank, a Virginia banking
corporation, or such other financial institution as is mutually acceptable to
the parties hereto.
Escrow Agreement shall mean the Escrow Agreement by and
between OPS and the Shareholders and the Escrow Agent, substantially in the form
attached hereto as Exhibit B.
Exchange Act shall mean the Securities Exchange Act of 1934.
1995 Financial Statements shall mean the statement of assets,
liabilities and equity and the related statement of revenue, expenses and
retained earnings of TFM as of its fiscal year end (December 31, 1995), as
delivered to OPS by TFM and attached hereto as Exhibit C.
Indemnified Party shall have the meaning set forth in Section
6.5.
Indemnifying Party shall have the meaning set forth in
Section 6.5.
Intellectual Property shall mean trademarks, service marks,
trade names, trade dress, patents, patent applications, works of authorship
protected by copyright, trade secrets, computer software, customer lists, price
lists, and all proprietary databases
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whether or not protected by copyright, proprietary know-how and processes, and
all other confidential business information.
June Financial Statements shall mean the statement of assets,
liabilities and equity and the related statement of revenue, expenses and
retained earnings of TFM as of June 30, 1996, as delivered to OPS by TFM and
attached hereto as Exhibit D.
Key Employee shall mean ▇▇▇ ▇▇▇▇▇.
Knowing Misrepresentation shall mean a representation or
warranty made by the Shareholders or TFM in Section 4.1 or by OPS in Section 4.2
of this Agreement of a past or existing fact as to which:
(a) a Shareholder or an OPS Responsible Person:
(i) actually knows of the existence or
occurrence, on or before the Closing Date, of other facts or circumstances (as
opposed to opinion or belief) and actually realized that such other facts or
circumstances cause the representation or warranty to be materially inaccurate
or misleading as of the Closing Date; and
(ii) intended, by his or its failure to cause TFM
or OPS, as appropriate, to correct the representation or warranty, to deceive
the party to this Agreement to whom or which the representation or warranty was
made; and
(b) the party to whom or which the representation or
warranty was made:
(i) does not actually know of the other facts or
circumstances referred to in subsection (a)(i) above, or knows of them but does
not realize that they cause the representation or warranty to be so materially
inaccurate or misleading; and
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(ii) actually relied upon the representation or
warranty in entering into this Agreement; provided, however, that the actual
knowledge of a Shareholder or OPS Responsible Person shall not include any facts
or circumstances that the Shareholder or OPS Responsible Person could, but did
not, obtain by investigation of the truth or accuracy of a representation or
warranty, or that are actually known by any other person or organization but not
by the Shareholder or OPS Responsible Person, or that are not actually known by
the Shareholder or OPS Responsible Person but which are, under any theory of
law, attributable to or deemed to be constructively known by the Shareholder or
OPS Responsible Person.
Notice shall have the meaning set forth in Section 7.3.
OPS Common Stock shall mean the common stock, without par
value, of OPS.
OPS Indemnitees shall mean OPS, and any of the OPS employees,
directors, officers and agents of OPS who were not employees, officers or agents
of TFM on or prior to the Closing Date; and OPS, and any employees, directors,
officers and agents of TFM who acquired such status on or after the Closing
Date; provided, that no past, present or future shareholders of OPS shall be
considered OPS Indemnitees.
OPS Responsible Person shall mean concerning OPS, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇ or ▇▇▇▇ ▇. ▇▇▇▇▇▇▇.
Person shall mean an individual, corporation, partnership,
joint venture, trust, or unincorporated organization, or a government or any
agency or political subdivision thereof.
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Prenegotiation Confidentiality Agreement shall mean the
Prenegotiation Confidentiality Agreement dated August 6, 1996, by and between
TFM and OPS.
Prime Rate shall have the meaning set forth in Section 5.6.
Principal Employees shall mean ▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
Purchase Price shall have the meaning set forth in Section
1.3.
SEC shall mean the Securities and Exchange Commission.
Shareholder Acknowledgement shall have the meaning set forth
in Section 3.1(i).
Shareholders shall mean, as defined in the Recitals, ▇▇▇▇ ▇.
▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, who are the holders, collectively, of all of the
issued and outstanding capital stock of TFM and of Siimon, respectively.
Siimon Stock shall mean the common stock, par value $1.00 per
share, of Siimon.
Stock Consideration shall have the meaning set forth in
Section 1.4.
Tax Savings shall mean, with respect to any loss, claim or
damage sustained by an indemnitee under Article 6, and to the extent any
indemnity payment is paid to an Indemnified Party pursuant to Article 6, the
federal or state income tax savings realized by the Indemnified Party that would
not have been realized but for such loss, claim, damage, and/or indemnity
payment, in an amount equal to the sum of (a) such tax savings attributable to
such loss, claim or damage and (b) such tax savings, if any, realized as a
result of the indemnity payment.
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TFM Commitments shall mean, as of August 31, 1996, every
contract, agreement, account payable, guaranty, note, debt, warranty, license,
lease, agency or representative agreement and other arrangement and all
contracts and agreements regarding employment or the compensation of present or
past employees of TFM requiring an annual payment of $10,000.00 or more.
TFM Loans shall mean all outstanding principal and interest
owed to Comerica by TFM.
TFM Stock shall mean the common stock, par value $1.00 per
share, of TFM.
Wastes shall mean chemicals, wastes, or hazardous or toxic
substances produced by, or resulting from any business, commercial or industrial
activities, operations or processes conducted by TFM, including any "Hazardous
Substances," "Pollutants" and "Contaminants" (as such terms are defined in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as
amended ("CERCLA")).
Section 1.2 Sale and Purchase of TFM Stock. At the Closing
on the Closing Date, the Shareholders shall sell, assign, transfer and deliver
to OPS the TFM Stock and OPS shall deliver to the Shareholders the Purchase
Price (as defined in Section 1.3 below) and accept the transfer of the TFM
Stock; provided, that, the transactions contemplated by this Section 1.2 shall
be consummated by the parties hereto on the Effective Date.
Section 1.3 Purchase Price. The aggregate purchase price to be
paid in immediately available funds on the Effective Date by OPS to the
Shareholders for the
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TFM Stock shall be $5,250,000.00 (the "Purchase Price"). The Purchase Price
shall be allocated and paid in accordance with Section 1.4 below.
Section 1.4 Payment of Purchase Price. The Purchase Price shall
be paid as follows:
(a) Stock Consideration. On the Effective Date or promptly
thereafter, OPS shall deliver to the Escrow Agent a certificate or certificates
representing 87,500 shares of OPS Common Stock (the "Stock Consideration"). The
Stock Consideration shall be delivered to, and maintained and distributed by,
the Escrow Agent in accordance with the Escrow Agreement. Each of the
Shareholders, TFM and OPS agrees and acknowledges that the amount of the
Purchase Price to be allocated to the Stock Consideration shall be
$1,312,500.00.
(b) Cash Consideration. On the Effective Date, OPS shall
deliver to the Shareholders cash in the amount of $3,937,500.00 (the "Cash
Consideration") by wire transfer to the respective accounts designated by each
of the Shareholders, or by certified or bank check, in the manner set forth on
Exhibit A of this Agreement.
(c) Satisfaction of Obligation. The payment and delivery of
the Stock Consideration and the Cash Consideration shall constitute a full and
complete release of OPS's payment obligation under Section 1.3 hereof, except as
set forth in Sections 5.6 and 6.4 hereof or otherwise contemplated by this
Agreement.
Section 1.5 Delivery of TFM Stock Certificates. On the Effective
Date, the Shareholders shall deliver to OPS all certificates representing the
TFM Stock. Each such certificate shall be endorsed in blank, or accompanied by a
stock power executed in blank, with signatures of the Shareholders guaranteed in
the customary fashion, and with
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all necessary documentary transfer tax stamps affixed thereto at the expense of
the Shareholders.
Section 1.6 Delivery of Stock Consideration. On the Effective
Date, OPS shall deliver to the Escrow Agent the Stock Consideration, to be held
and distributed in accordance with the terms of the Escrow Agreement. The Stock
Consideration shall serve as security for the indemnification obligations of the
Shareholders under Section 6.2 below. The OPS Indemnitees may make claims
pursuant to their rights under, and in accordance with the terms of Section 6.2
and each such claim, to the extent determined to be valid in the manner provided
herein and in the Escrow Agreement, shall be paid to OPS Indemnitee making claim
therefor from the Stock Consideration to satisfy claims in accordance with the
procedures set forth in the Escrow Agreement.
Section 1.7 Transfer of Siimon Stock.
(a) Sale and Purchase. At the Closing on the Closing Date, in
consideration of the transactions contemplated by this Agreement, the
Shareholders shall sell, assign, transfer and deliver to OPS the Siimon Stock;
provided, that, the transactions contemplated by this Section 1.7 shall be
consummated by the parties hereto on the Effective Date. Each of the
Shareholders, Siimon and OPS agrees and acknowledges that the amount of the
Purchase Price to be allocated to the sale and purchase of the Siimon Stock
shall be $60.00 of the Cash Consideration paid to the Shareholders on the
Effective Date.
(b) Delivery. On the Effective Date, the Shareholders shall
deliver to OPS all certificates representing the Siimon Stock. Each such
certificate shall be endorsed in blank, or accompanied by a stock power executed
in blank, with signatures
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of the Shareholders guaranteed in the customary fashion, and with all necessary
documentary transfer tax stamps affixed thereto at the expense of the
Shareholders.
Section 1.8 Employment of Principal Employees and Key Employee.
On the Closing Date, the Shareholders shall cause the Principal Employees to
execute Employment Agreements with TFM in the form attached hereto as Exhibit
E-1 and the Key Employee to execute an Employment Agreement with TFM in the form
attached hereto as Exhibit E-2.
ARTICLE 2
CLOSING
Section 2.1 Closing. The Closing shall take place on the Closing
Date to be effective at the Effective Time on the Effective Date.
ARTICLE 3
CONDITIONS PRECEDENT
Section 3.1 Conditions Precedent to Obligation of OPS. The
obligation of OPS to consummate the transactions contemplated hereby is subject
to the satisfaction, at or prior to the Closing Date, of each of the following
conditions, any or all of which may be waived in whole or in part by OPS, to the
extent permitted by applicable law:
(a) Accuracy of Representations and Warranties. All
representations and warranties of the Shareholders contained herein shall be
true and correct in all material respects as of the Closing Date, with the same
force and effect as though such
10
representations and warranties had been made at and as of the Closing Date,
except as otherwise contemplated by this Agreement.
(b) Performance of Agreements. The Shareholders and TFM shall
have performed, or complied with, in all material respects, all covenants,
obligations and agreements contained in this Agreement to be performed, or
complied with, by them prior to or at the Closing Date, and all other agreements
to be executed and delivered by TFM or the Shareholders hereby shall have been
executed and delivered.
(c) Officers' Certificates. OPS shall have received (1) a
certificate of TFM, dated the Closing Date, signed by its chief executive, chief
financial and chief operating officers, stating that the conditions specified in
paragraphs (a) and (b) above have been fulfilled, (2) a certificate of TFM
signed by its Secretary setting forth the number of outstanding shares of
capital stock and other securities, if any, of TFM as of the Closing Date, and
(3) a certificate of Siimon signed by its Secretary setting forth the number of
outstanding shares of capital stock and other securities, if any, of Siimon as
of the Closing Date.
(d) Receipt of Licenses, Permits and Consents. OPS shall have
received evidence in form and substance reasonably satisfactory to its counsel
that such licenses, permits, consents, approvals, authorizations, qualifications
and orders of governmental authorities and all consents and approvals of third
parties as are necessary for consummation of the transactions contemplated by
this Agreement have been obtained and are in full force and effect on the
Closing Date. OPS shall have received good standing certificates for TFM and
Siimon from the Michigan Department of Consumer and Industry Services.
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(e) Litigation. There shall not be in effect any injunction, writ
or temporary restraining order or any order of any nature issued by a court or
governmental agency of competent jurisdiction directing that any material
transaction provided for herein may not be consummated as herein provided. With
respect to the matters described in Schedule 4.1(k) attached hereto, there shall
not have been issued by a court or governmental agency of competent jurisdiction
a judgment against TFM that has or would have, either singly or in the
aggregate, a material adverse effect on the transactions contemplated hereby or
on the financial condition, properties, results of operations, prospects or
business of TFM.
(f) Opinion of Counsel for TFM and the Shareholders. OPS shall
have received an opinion of counsel to the Shareholders, TFM and Siimon, dated
the Closing Date, in the form of Exhibit F hereto.
(g) Employment of Principal Employees and Key Employees. Each
Principal Employee and the Key Employee shall have executed and delivered his
respective Employment Agreement.
(h) Escrow Agreement. The Shareholders and the Escrow Agent shall
have executed and delivered the Escrow Agreement.
(i) Shareholder Acknowledgement. Each shareholder shall have
executed and delivered to OPS a shareholder acknowledgement of the form attached
hereto as Exhibit G (the "Shareholder Acknowledgement"), acknowledging the
Shareholder's receipt of the information set forth in Section 4.2(i) hereof.
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(j) Termination of Cross Purchase Agreement. The Shareholders
shall have effected the termination of that certain Cross Purchase Agreement
between the Shareholders and TFM, dated May 9, 1994.
Section 3.2 Conditions Precedent to the Obligation of TFM and
the Shareholders. The obligation of TFM and the Shareholders to consummate the
transactions contemplated hereby is subject to the satisfaction, at or prior to
the Closing Date, of each of the following conditions, any or all of which may
be waived in whole or in part by the Shareholders, to the extent permitted by
applicable law:
(a) Accuracy of Representations and Warranties. All
representations and warranties of OPS contained herein shall be true and correct
in all material respects as of the Closing Date, with the same force and effect
as though such representations and warranties had been made at and as of the
Closing Date, except as otherwise contemplated by this Agreement.
(b) Performance of Agreements. OPS shall have performed, in
all material respects, all covenants, obligations and agreements contained in
this Agreement to be performed or complied with, by it prior to or at the
Closing Date, and all other agreements to be executed and delivered by OPS
hereby shall have been executed and delivered.
(c) Officer's Certificate. The Shareholders shall have received
a certificate of OPS dated the Closing Date, signed by the President stating
that the conditions specified in paragraphs (a) and (b) above have been
fulfilled.
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(d) Receipt of Licenses, Permits and Consents. The
Shareholders shall have received evidence in form and substance reasonably
satisfactory to its counsel that the required licenses, permits, consents,
approvals, authorizations, qualifications and orders of governmental authorities
and all consents of third parties as are necessary for consummation of the
transactions contemplated by this Agreement have been obtained and are in full
force and effect on the Closing Date. The Shareholders shall have received a
good standing certificate for OPS from the State Corporation Commission of the
Commonwealth of Virginia.
(e) Litigation. There shall not be in effect any injunction,
writ or temporary restraining order or any order of any nature issued by a court
or governmental agency of competent jurisdiction directing that any material
transaction provided for herein not be consummated as herein provided. There
shall not have been issued by a court or governmental agency of competent
jurisdiction a judgment against OPS that has or would have, either singly or in
the aggregate, a material adverse effect on the financial condition, properties,
results of operations, prospects or business of OPS.
(f) Opinion of Counsel for OPS. The Shareholders shall have
received an opinion of counsel to OPS, dated the Closing Date, in the form of
Exhibit H hereto.
(g) Employment Agreements. TFM shall have executed and delivered
to the Principal Employees and the Key Employee each of their
respective Employment Agreements.
(h) Escrow Agreement. OPS and the Escrow Agent shall have
executed and delivered the Escrow Agreement.
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Section 3.3 Effect of Waiver of Covenant. If a party hereto
does not perform a covenant hereunder, the other party or parties may elect in
writing to require the transactions contemplated hereby to be consummated
without limiting or otherwise affecting its or his right to seek any remedies it
or he may have against the party in breach of a covenant or that failed to
satisfy the condition precedent; provided, that the nonperforming party signs
the election (the "Reservation of Rights").
Section 3.4 Satisfaction of Conditions Precedent. If the Closing
shall occur, then all conditions precedent to the obligations of TFM, Siimon and
the Shareholders, and of OPS, to close shall be deemed to have been met, except
as to any item contained in the Reservation of Rights.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.1 Representations and Warranties of the Shareholders.
Each of the Shareholders, jointly and severally, hereby represents and warrants
to OPS as follows:
(a) Ownership of TFM Stock. The Shareholders are the record
and beneficial owners of all of the shares of the issued and outstanding TFM
Stock. None of the Shareholders has pledged, encumbered or otherwise granted or
assigned any interest in, or otherwise restricted the transfer of, any of the
TFM Stock, except as disclosed on Schedule 4.1(a).
(b) TFM Stock. The authorized TFM Stock consists entirely of
50,000 shares of common stock, par value $1.00 per share. Of such shares, 1,000
shares of common stock have been issued and are outstanding. The issued and
outstanding shares
15
of TFM Stock have been validly issued and are fully paid, nonassessable, and
free of any preemptive rights, whether statutory or otherwise. Except as
described in Schedule 4.1(b) to this Agreement, there are no outstanding or
authorized subscriptions, options, warrants, calls, rights, commitments or any
other agreements or arrangements of any character obligating TFM to issue any
additional shares of capital stock or any other securities convertible into or
evidencing the right to subscribe for any shares of capital stock or to convert
any presently existing obligations or securities into capital stock.
Furthermore, there are no limits or restrictions of any kind on the voting of
the TFM Stock.
(c) Subsidiaries. Except as set forth on Schedule 4.1(c),
neither TFM nor the Shareholders has any subsidiaries or owns any stock or other
type of ownership or partnership interest in any joint venture, partnership,
whether limited or otherwise, limited liability company or other sort of
business entity or venture which would conflict with its or his ability to
perform under this Agreement.
(d) Valid Existence, Good Standing and Power. TFM is a
corporation validly existing and in good standing under the laws of the State of
Michigan. TFM has all requisite corporate power and authority to own, lease and
operate its properties, and to carry on its business as such business is now
being conducted. Except as disclosed on Schedule 4.1(d) to this Agreement, TFM
is not qualified to do business as a foreign corporation in any other
jurisdiction and the properties owned, leased or operated by it or the business
conducted by it do not make such qualification necessary.
(e) Authorization and Validity of Agreements. The execution,
delivery and performance by TFM of this Agreement, and the consummation of the
transactions
16
contemplated hereby, have been duly authorized by all necessary corporate
action. This Agreement has been duly executed and delivered by each of TFM and
the Shareholders, and the Escrow Agreement has been duly executed and delivered
by each of the Shareholders, and upon their execution and delivery as provided
herein, the Agreement and the Escrow Agreement will be legal and valid
obligations of each of TFM and the Shareholders, as applicable, enforceable
against each in accordance with the terms of the respective document, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally, and subject to general principles of equity
(whether in law or in equity) and public policy applicable to securities law.
(f) No Approvals or Notices Required; No Conflict with
Instruments. Except as described in Schedule 4.1(f) to this Agreement, the
execution, delivery and performance of this Agreement by TFM and by the
Shareholders and the consummation by each of them of the transactions
contemplated hereby and thereby: (1) will not violate (with or without the
giving of notice or lapse of time or both) any judgment, ruling, order, writ,
injunction, statute, rule or regulation applicable to TFM or the Shareholders;
(2) will not require any consent, approval, filing or notice under any provision
of law applicable to TFM or the Shareholders; (3) will not (i) require any
consent, approval or notice; (ii) conflict with, result in the breach of any
provision of, result in the termination of, or constitute a default (or an event
that, with notice or lapse of time or both, would constitute a default); or
(iii) result in the acceleration of (or give any Person the right to accelerate)
the performance of any obligation of TFM or the Shareholders under any
indenture, mortgage, deed of trust, lease, licensing agreement, contract,
instrument or other agreement to which TFM or the Shareholders is a party or by
which the assets or
17
properties of any of them are bound or encumbered; and (4) will not result in
the creation of a lien upon any properties, assets or business of TFM pursuant
to the articles of incorporation or bylaws of TFM or any indenture, mortgage,
deed of trust, lease, licensing agreement, contract, instrument or other
agreement to which TFM or the Shareholders is a party or by which the assets or
properties of any of them are bound or encumbered.
(g) Financial Statements. Except as disclosed on Schedule 4.1(g),
the June Financial Statements and the 1995 Financial Statements are in
accordance with the respective books and records of TFM, have been prepared in
accordance with generally accepted accounting principles and on a basis
consistent with prior periods of TFM, and fairly present the financial position,
results of operations and shareholder's equity of TFM as of the dates and for
the periods indicated.
(h) No Undisclosed Liabilities. TFM does not have, and the
Shareholders do not have, any liabilities or obligations, absolute, accrued,
contingent or otherwise, in connection with the business, assets, or properties
of TFM (collectively, "Liabilities") of a nature required by generally accepted
accounting principles to be reflected on a balance sheet, except (1) Liabilities
which are fully reflected on the June Financial Statements or in the notes
thereto; (2) Liabilities incurred since June 30, 1996, in the ordinary course of
business, consistent with the past practices of TFM; and (3) as set forth in
Schedule 4.1(h) to this Agreement.
(i) Tax Matters. With respect to tax matters:
(1) Tax Liabilities. Except as set forth in Schedule
4.1(i)(1) to this Agreement, TFM has filed all tax returns required to be filed
and, in respect of any period
18
ending prior to the date hereof, has paid all taxes required to be paid and, in
respect of any subsequent period that ends prior to or that includes the Closing
Date, has paid all taxes required to be paid or anticipated to be payable.
Except as set forth in Schedule 4.1(i)(1), TFM will not have any liability for
any such taxes in excess of the amounts so paid, is not delinquent in the
payment of any tax, assessment or governmental charge and has not requested any
extension of time within which to file any tax return in respect of any fiscal
year that has not since been filed. As of the date of this Agreement, no
requests for waivers of the time to assess any such tax are pending.
(2) Disclosure and Notices. Except as set forth in
Schedule 4.1(i)(2), true, correct and complete copies of all corporate income
tax returns of TFM which have been filed since 1991 or which will be filed on or
before the Closing Date. All other tax returns and other filings of TFM which
have been filed since 1993, and all financial records necessary to prepare tax
returns for TFM subsequent to the Closing Date are located at TFM's office. The
Shareholders shall further notify OPS of any proposed amendment of tax returns
of TFM filed, required to be filed or to be filed for taxable periods ending on
or before or including the Closing Date.
(3) Scope of Provision. For purposes of this
Agreement, the term "tax" shall include all federal, state, local and foreign
taxes of all types, whether with respect to income, profits, franchises,
licenses, sales, use, occupation, property, employment, or otherwise, and
whether denoted as a tax, fee, assessment, governmental charge or otherwise.
(j) Title to Properties; Absence of Liens and Encumbrances.
Except as otherwise disclosed in Schedule 4.1(j) to this Agreement, TFM has
good, valid and marketable
19
title to its properties and assets (tangible and intangible) free and clear of
all liens, encumbrances or other interests.
(k) Legal Proceedings. Except as described in Schedule 4.1(k)
to this Agreement, (1) there is no pending legal, administrative, governmental
or other claim, action, suit, or proceeding or governmental investigation to
which TFM is a party or relating to any of its properties or rights or otherwise
affecting TFM; and (2) to the actual knowledge of each Shareholder, there is no
threatened legal, administrative, governmental or other claim, action, suit, or
proceeding or governmental investigation, or any basis for such claim, action,
suit, proceeding or investigation against or relating to TFM or any of its
respective properties or rights or which would affect TFM, which, if adversely
determined, would have, either singly or in the aggregate, a material adverse
effect on the financial condition, properties, good will, results of operations
or business of TFM taken as a whole. TFM is not in violation of any term of any
judgment, ruling, writ, decree, injunction or order outstanding against it.
(l) Insurance. TFM presently maintains and, since December 31,
1995, has maintained, with insurance companies, casualty and liability insurance
policies providing coverage of all of the material assets, properties and
operations of TFM. Such insurance policies shall be outstanding and in force as
of the Closing Date and are listed in Schedule 4.1(l) to this Agreement. Except
as disclosed in Schedule 4.1(l), there are no material claims pending under any
such policy, nor is there, to the actual knowledge of either Shareholder, any
basis for any such claim, nor has any such claim been denied in the past five
(5) years.
20
(m) Labor Relations.
(1) There is no unfair labor practice complaint
against TFM pending before the National Labor Relations Board, and no labor
strike, dispute, slowdown or stoppage pending against or affecting TFM, and
there is no collective bargaining or similar agreement involving TFM as a party,
except as disclosed on Schedule 4.1(m). To the actual knowledge of the
Shareholders, there is no union or collective bargaining organizational activity
occurring among the employees of TFM.
(2) Except as otherwise disclosed on Schedule 4.1(m)
of this Agreement, TFM is in material compliance with all applicable state and
federal labor and employment laws, including but not limited to Title VII of the
Civil Rights Act of 1964, as amended; the Age Discrimination in Employment Act
of 1967; the Older Workers Benefit Protection Act; the Equal Pay Act of 1963;
the Pregnancy Discrimination Act; the Americans with Disabilities Act of 1990;
the Fair Labor Standards Act; 42 U.S.C. ss. 1981; the Family and Medical Leave
act of 1993; the Worker Adjustment and Retraining Notification Act of 1988
("WARN"); the Consolidated Omnibus Budget Reconciliation Act of 1986 ("COBRA");
the Employee Retirement Income Security Act of 1974 ("ERISA"); the National
Labor Relations Act; the Labor Management Relations Act; the Occupational Safety
and Health Act of 1970; the Employee Polygraph Protection Act of 1988; the
Vietnam Era Veterans' Readjustment Assistance Act of 1974; federal immigration
laws; Department of Transportation regulations; and state workers compensation,
wage/hour and occupational safety and health laws.
(n) Commitments and Customer Relationships. All of the TFM
Commitments are set forth in Schedule 4.1(n). All of the TFM Commitments are
valid, binding, and in full force and effect, except as may be limited by
applicable bankruptcy, insolvency or similar laws
21
affecting creditors' rights generally, and subject to general principles of
equity (whether in law or in equity) and except for such TFM Commitments that
are otherwise listed in Schedule 4.1(n) to this Agreement. Neither TFM nor, to
the actual knowledge of the Shareholders, any other party to any of such TFM
Commitments is in material default under any of the TFM Commitments. Except as
disclosed in Schedule 4.1(n), no consent on the part of any third party in
connection with a TFM Commitment is required by reason of the purchase of the
TFM Stock. The Shareholders have no actual knowledge that any change will occur
in the relationships of TFM with any customers, suppliers or referral sources,
whether or not as a result of the TFM Stock purchase, which change would be
materially adverse to TFM or its business. TFM will not incur any liability
(whether as an indemnity, compensation, reimbursement or otherwise) for
terminating any TFM Commitment in accordance with the terms thereof at the end
of any stated term. Except as disclosed in Schedule 4.1(n), the Shareholders do
not have, nor will they have immediately after the Closing Date, any financial
interest in any party, other than TFM, which is a party to any of the TFM
Commitments and all of the TFM Commitments were negotiated on an arm's length
basis.
(o) Patents, Trademarks, Related Contracts and Other
Intellectual Property. With respect to its Intellectual Property:
(1) Except as set forth in Schedule 4.1(o)(1), TFM
owns, or has the right to use pursuant to valid license, all such Intellectual
Property as is presently used by it in the conduct of its business, and all
license arrangements relating in any manner to any of such Intellectual Property
(whether or not in writing) are set forth on Schedule 4.1(o)(1). Except as
disclosed in Schedule 4.1(o)(1), TFM is in full compliance with and is not in
default under any of such license agreements, and to each Shareholder's actual
knowledge all other parties to any
22
of such license agreements are in full compliance with and are not in default
under any of such license agreements;
(2) Schedule 4.1(o)(2) sets forth a complete list of
a all patents, trademarks, service marks, and copyrights used by TFM in the
conduct of its business that are currently registered in any jurisdiction, and
TFM has good and marketable title to all such assets free and clear of all
liens, charges and encumbrances (except for such license agreements listed in
Schedule 4.1(o)(1)) and all filing or maintenance fees that are required to
maintain such registrations and that are due and payable as of the date of this
Agreement have been paid and all associated maintenance filings have been made;
(3) Schedule 4.1(o)(3) sets forth a complete list of
all unregistered trademarks, service marks, and trade names used by TFM in the
conduct of its business, and TFM has good and marketable title to all such
assets free and clear of all liens, charges and encumbrances (except for such
license agreements listed in Schedule 4.1(o)(1));
(4) For each trademark, service ▇▇▇▇, or trade name
listed in Schedules 4.1(o)(2) and 4.1(o)(3), Schedule 4.1(o)(4) sets forth the
dates of first use and the geographic territory of use for each trademark,
service ▇▇▇▇, or trade name, and TFM represents that such marks and trade names
have been in continuous use in their respective territories since the listed
dates of first use;
(5) Schedule 4.1(o)(5) lists all software that TFM
has had written or developed by any Person not an employee of TFM, lists the
current owner of the copyright interest in such software, and if TFM is the
current owner, lists the date of the written assignment of the copyright
interest to TFM;
23
(6) Except as disclosed in Schedule 4.(o)(6), during
the period of the Shareholders' ownership of the stock of TFM, TFM has not
infringed, misappropriated, or otherwise used in an unauthorized manner the
proprietary rights (including but not limited to the patent, trade secret,
trademark, trade dress, or copyright rights) of any third party;
(7) TFM has not granted or committed to grant any
rights in its Intellectual Property of any nature whatsoever to any third party
except as disclosed in Schedule 4.1(o)(7) to this Agreement;
(8) Except as disclosed in Schedule 4.1(o)(8) to this
Agreement, no claim has been asserted by any Person (i) to the effect that any
action by TFM, infringes on the Intellectual Property rights of any other
Person; or (ii) that challenges or questions the right of TFM to use any of the
Intellectual Property being used by it; or (iii) which asserts the right of any
third party to use such Intellectual Property;
(9) Except as disclosed on Schedule 4.1(o)(9), each
Shareholder has no knowledge of the basis for any claim against it that any of
its operations, activities, products, or publications infringes on any patent,
trademark, service ▇▇▇▇, trade name, copyright, or other proprietary right of a
third party, or that it is illegally or in any unauthorized manner using the
trade secrets or any proprietary rights of others;
(10) Each Shareholder has no knowledge that any other
Person is infringing upon or has misappropriated any of TFM's Intellectual
Property.
(p) Accounts Payable. Except as disclosed on Schedule 4.1(p),
the accounts payable of TFM reflected in its June Financial Statements are true,
correct and complete lists of all accounts payable of TFM as of June 30, 1996,
and, since that date, TFM has not incurred an account payable, except for
accounts payable incurred in the ordinary course of business.
24
(q) Conduct of Business in Compliance with Regulatory
Requirements. Except as set forth in Schedule 4.1(q) to this Agreement, TFM is
in compliance in all material respects with all applicable laws, regulations,
ordinances and codes, the failure to comply with which may have, either singly
or in the aggregate, a material adverse effect on the financial condition,
properties, results of operations, prospects or business of TFM.
(r) Absence of Certain Changes or Events. Except as disclosed
in Schedule 4.1(r) to this Agreement, since June 30, 1996, TFM has not:
(1) suffered any material adverse change in its
operations, earnings, assets, liabilities, properties, prospects, business or
financial condition;
(2) made any capital expenditure or entered into any
commitment therefor in excess of $10,000.00 for any single item or $50,000.00 in
the aggregate for all items;
(3) declared any dividend or made any payment or
other distribution in respect of its capital stock to the Shareholder or any
other party;
(4) purchased, issued, redeemed, sold, or otherwise
acquired or disposed of any shares of TFM Stock, or granted any options,
warrants or other rights to purchase or convert any obligation into any shares
of its capital stock or into any of its securities;
(5) incurred, assumed or guaranteed or entered into
any commitment in respect of any indebtedness for borrowed money or materially
changed any of its indebtedness;
(6) introduced any material change with respect to
the manner of conducting its business or with respect to its method of
accounting;
25
(7) made any material increase in the compensation
payable or to become payable by it to its officers or key employees or adopted
any increase in any bonus, insurance, pension or other employee benefit plan,
payment or arrangement made to, for or with such officers or key employees,
except increases occurring in the ordinary course of business;
(8) entered into any commitment, contract, agreement,
license, lease or transaction material to TFM other than in the ordinary course
of business; or
(9) entered into any agreements, whether in writing
or otherwise, to take any action described in this Section 4.1(r); or
(10) suffered any damage, destruction, loss or other
occurrence, whether covered by insurance or not, that has materially and
adversely affected, or may have a material and adverse effect on, the business,
operations, assets or financial condition of TFM.
(s) Employee Benefit Plans.
(1) Schedule 4.1(s) lists all plans, programs,
agreements, commitments or arrangements maintained by or on behalf of TFM or any
other Person that provides benefits or compensation to or for the benefit of any
current or former employees of TFM (the "Plan" or "Plans"). Except as set forth
on Schedule 4.1(s), only current and former employees of TFM and their spouses
and dependents participate in the Plans. TFM has not maintained or operated any
Plan in any manner in violation of ERISA or any other applicable Federal, state
or local law, rule or regulation, including the Internal Revenue Code of 1986,
as amended, except as disclosed on Schedule 4.1(s).
(2) With respect to each Plan: (i) no litigation or
administrative or other proceeding is pending or, to the actual knowledge of the
Shareholders, threatened, involving such Plan; (ii) TFM has made or accrued all
payments and/or contributions required, or
26
reasonably expected to be required, to be made under the provisions of the Plans
or by law with respect to any period prior to the Closing Date; and (iii) each
such Plan will be on the Closing Date fully funded in an amount sufficient to
pay all liabilities accrued (including liabilities and obligations for health
care, life insurance and other benefits arising before or after termination of
employment) and claims incurred up to the Closing Date, or paid-up insurance
will have been provided therefor.
(3) Except as set forth in Schedule 4.1(s) and
pursuant to federal and Michigan laws, neither TFM nor any of the Plans have any
obligation to provide, or liability for, health care, life insurance or other
benefits after termination of employment.
(4) Except as set forth in Schedule 4.1(s), the
consummation of the transactions contemplated by this Agreement will not entitle
any employee of TFM to severance pay nor will it accelerate the time of payment,
vesting or increase the amount of any compensation due to any employee of TFM.
(5) Except as set forth on Schedule 4.1(s), for any
period prior to Closing, all required reporting to and filing with agencies of
the Federal government, and all required disclosure to participants, have been
completed for each Plan, as applicable.
(t) No Brokers. Neither the Shareholders nor TFM has employed
any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
hereby.
(u) No Violation of Environmental Laws. Except as disclosed on
Schedule 4.1(u) attached hereto, the business of TFM as presently being
conducted does not materially violate any applicable law or regulation relating
to air, water, or noise pollution, or the production, storage, labeling, or
disposition of Wastes. TFM has timely filed all reports required
27
to be filed by it, has obtained all required approvals and permits and has
generated and maintained all required data, documentation, and records under any
applicable environmental laws or regulations. TFM has not placed, stored,
buried, dumped, disposed, spilled or released any Wastes on, beneath, or about
any of the properties used, owned or leased by TFM or except for inventories of
such chemicals to be used in the ordinary course of business (which inventories,
if any, have been stored in accordance with all applicable laws and regulations
and in a manner such that there was no release of any such chemicals into the
environment that could cause the incurrence of material clean up or other
response costs under the Resource Conservation and Recovery Act of 1976, as
amended ("RCRA"), or CERCLA, or other comparable state or federal laws or
regulations). TFM has not received any notice from any governmental agency or
private or public entity advising TFM that it is responsible for or potentially
responsible for corrective action or response costs with respect to a release, a
threatened release or clean up of Wastes.
(v) Employees, Directors, Officers. Schedule 4.1(v) to this
Agreement sets forth, as of the date set forth in Schedule 4.1(v), the names,
employment capacities, and pay scales or salaries of TFM employees, directors
and officers and all consultants of TFM, and identifies any agreement or
understanding which obligates TFM to pay any compensation or provide any
benefit, now or in the future, to any such person.
(w) Bank Accounts. Schedule 4.1(w) to this Agreement sets
forth the identity of each bank, trust company or other financial institution
with which TFM has an account, each such account number and type, and the
identities and capacities of all persons with authorized access to the funds or
contents of such accounts.
28
(x) Certain Securities Laws Matters. Each of the Shareholders is
acquiring OPS Common Stock for his own account, without a view to the resale,
transfer or distribution thereof, and not for the account of others. Each
Shareholder agrees not to resell or otherwise dispose of all or any such stock,
except as permitted by federal and state laws in the opinion of legal counsel
reasonably acceptable to OPS, including, without limitation, any and all
applicable provisions of this Agreement and any regulations under the Securities
Act of 1933. Each Shareholder fully understands and agrees that he must bear the
economic risk of the investment in the Stock Consideration for an indefinite
period of time. Each Shareholder understands and agrees that transfer of such
shares will be restricted in their resale and that each certificate evidencing
the shares will bear the following legend, or one substantially similar thereto:
The shares of stock represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), and no transfer, sale, assignment, pledge, hypothecation
or other disposition of the shares represented by this certificate
may be made except (A) pursuant to the effective registration
statement under the Act and any applicable state securities laws
or (B) pursuant to an exemption from the provisions of Section 5
of the Act, and the rules and regulations in effect thereunder,
and state securities laws.
(y) Siimon. With respect to Siimon:
(1) Ownership of Siimon Stock. The Shareholders are
the record and beneficial owners of all of the shares of the issued and
outstanding Siimon Stock. None of the Shareholders has pledged, encumbered or
otherwise granted or assigned any interest in, or otherwise restricted the
transfer of, any of the Siimon Stock.
(2) Siimon Stock. The authorized Siimon Stock
consists entirely of 50,000 shares of common stock, par value $1.00 per share.
Of such shares, 5,000 shares of
29
common stock have been issued and are outstanding. The issued and outstanding
shares of Siimon Stock have been validly issued and are fully paid,
nonassessable, and free of any preemptive rights, whether statutory or
otherwise. There are no outstanding or authorized subscriptions, options,
warrants, calls, rights, commitments or any other agreements or arrangements of
any character obligating Siimon to issue any additional shares of capital stock
or any other securities convertible into or evidencing the right to subscribe
for any shares of capital stock or to convert any presently existing obligations
or securities into capital stock. Furthermore, there are no limits or
restrictions of any kind on the voting of the Siimon Stock.
(3) Valid Existence, Good Standing and Power. Siimon
is a corporation validly existing and in good standing under the laws of the
State of Michigan. Siimon has all requisite corporate power and authority to
own, lease and operate its properties, and to carry on its business as such
business is now being conducted. Siimon is not qualified to do business as a
foreign corporation in any other jurisdiction and the properties owned, leased
or operated by it or the business conducted by it do not make such qualification
necessary.
(4) Authorization and Validity of Agreement. The
execution, delivery and performance by Siimon of this Agreement, and the
consummation of the transactions contemplated hereby, have been duly authorized
by all necessary corporate action. This Agreement is, and upon its execution and
delivery as provided herein, will be the legal and valid obligation of Siimon,
enforceable against it in accordance with the terms of the Agreement, except as
may be limited by applicable bankruptcy, insolvency or similar laws affecting
creditors' rights generally, and subject to general principles of equity
(whether in law or in equity) and public policy applicable to securities law.
30
(5) Nonoperating Entity. Siimon neither owns nor
leases any assets or properties, and has not conducted any business in the State
of Michigan or any other jurisdiction, since its incorporation on August 3,
1993. TFM is, and on the Closing Date, will be the holder of any and all assets
and proprietary information regarding the remanufacturing of office workstations
and the manufacturing of chairs.
(z) Absence of Material Change. Neither TFM nor Siimon has
suffered any material adverse change in its operations, earnings, assets,
liabilities, properties, business or financial condition during the period
between September 19, 1996, and the Closing Date.
(aa) Full Disclosure. No statement contained in any document,
certificate, or other writing furnished or to be furnished by TFM, Siimon or the
Shareholders to OPS pursuant to the provisions hereof contains or will contain
any untrue statement of a material fact or omits or will omit to state any
material fact necessary, in the light of the circumstances under which it was
made, in order to avoid statements herein or therein being misleading.
Section 4.2 Representations and Warranties of OPS. OPS represents and
warrants to the Shareholders as follows:
(a) Valid Existence, Good Standing and Power. OPS is a corporation
validly existing and in good standing under the laws of the Commonwealth of
Virginia. OPS has all requisite corporate power and authority to own, lease and
operate its properties, and to carry on its business as such business is now
being conducted, and to enter into this Agreement and perform its respective
obligations hereunder.
(b) OPS Stock. The authorized capital stock of OPS consists of
50,000,000 shares of OPS Common Stock, and 5,000,000 shares of preferred stock,
without par value. Of such shares, on the Closing Date, approximately 4,385,000
shares of OPS Common Stock, and
31
no shares of OPS preferred stock, have been issued and are outstanding. The
outstanding shares of OPS capital stock have been validly issued and are fully
paid and nonassessable, and are free of any preemptive rights, whether statutory
or otherwise. There are no outstanding or authorized subscriptions, options,
warrants, calls or rights obligating OPS to issue any additional shares of
capital stock. There are no limits or restrictions of any kind on the voting of
the OPS Common Stock.
(c) Stock to be Issued to Shareholders. The shares of OPS Common
Stock to be issued to the Shareholders as the Stock Consideration are duly
authorized and, when issued pursuant to this Agreement, will be validly issued,
fully paid, nonassessable, and free of any preemptive rights, whether statutory
or otherwise.
(d) Authorization and Validity of Agreements. The execution,
delivery and performance by OPS of this Agreement and the Escrow Agreement, and
the consummation of the transactions contemplated hereby and thereby, have been
duly authorized by all necessary corporate action. No shareholder approval is
required. This Agreement and the Escrow Agreement are, and upon their execution
and delivery as provided herein, will be legal and valid obligations of OPS,
enforceable against it in accordance with the terms of the respective document,
except as may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights generally, and subject to general principles of
equity (whether in law or in equity) and public policy applicable to securities
law.
(e) No Approvals or Notices Required; No Conflict with
Instruments. Except as described in Schedule 4.2(e) to this Agreement, the
execution, delivery and performance of this Agreement by OPS and the
consummation by it of the transactions contemplated hereby and thereby: (1) will
not violate (with or without the givin g of notice or
32
lapse of time or both) any judgment, ruling, order, writ, injunction, statute,
rule or regulation applicable to OPS; (2) will not require any consent,
approval, filing or notice under any provision of law applicable to OPS; (3)
will not (i) require any consent, approval or notice; (ii) conflict with, result
in the breach of any provision of, result in the termination of, or constitute a
default (or an event that, with notice or lapse of time or both, would
constitute a default); or (iii) result in the acceleration of (or give any
Person the right to accelerate) the performance of any obligation of OPS under
any indenture, mortgage, deed of trust, lease, licensing agreement, contract,
instrument or other agreement to which OPS is a party or by which the assets or
properties of any of them are bound or encumbered; and (4) will not result in
the creation of a lien upon any properties, assets or business of OPS pursuant
to the articles of incorporation or bylaws of OPS or any indenture, mortgage,
deed of trust, lease, licensing agreement, contract, instrument or other
agreement to which OPS is a party or by which the assets or properties of any of
them are bound or encumbered.
(f) Securities Representation. OPS is acquiring the TFM Stock and
Siimon Stock for investment purposes only, for OPS's own account, without a view
to the resale, transfer, or distribution thereof. OPS acknowledges that (1)
neither the TFM Stock nor the Siimon Stock is registered under any federal or
state securities laws; and (2) it may not transfer or assign the TFM Stock or
Siimon Stock unless it is first registered, or the transaction is exempt from
registration, under federal and applicable states securities laws. The
certificates representing the TFM Stock and Siimon Stock, respectively, will
bear the following restrictive legend:
33
This stock has not been registered under any federal or state
securities laws. This stock may not be assigned unless it is first
registered or the transaction is exempt from registration under
federal or applicable states securities laws.
OPS will be actively engaged in the management of TFM and Siimon.
(g) No Brokers. Neither OPS nor any of its officers, directors or
employees acting on behalf of OPS, has employed any broker, investment banker or
finder or incurred any liability for any brokerage fees, commissions or finders'
fees in connection with the transactions contemplated hereby.
(h) Governmental Action. Except as disclosed on Schedule 4.2(e),
no authorization, approval, consent or order of, or registration, declaration or
filing with, any court or other governmental body is required by or on behalf of
OPS in connection with the execution, delivery or performance by OPS of this
Agreement or the Escrow Agreement, or the Employment Agreements or the
consummation of the transactions contemplated hereby or thereby.
(i) SEC Filings. OPS (1) has securities registered pursuant to
Section 12 of the Exchange Act that are subject to the reporting requirements of
Section 13 of the Exchange Act and (2) the securities described in clause (1)
herein have been registered under Section 12 of the Exchange Act since May 30,
1996. OPS has delivered to the Shareholders true, correct and complete copies of
the OPS Prospectus, dated May 30, 1996 (the "Prospectus"), OPS's Report on Form
10-Q for the quarter ended June 30, 1996 (the "10-Q"), and all Current Reports
on Form 8-K since May 30, 1996 (collectively, the "SEC Filings"). OPS has filed
timely with the SEC all reports, schedules, statements and registration
statements required to be filed by it to date with the SEC under Sections 13(a)
and 15(d) of the Exchange Act, since registration of
34
the securities under the Exchange Act. The information contained in the SEC
Filings, as of their respective dates, does not contain any untrue statement of
a material fact, or omit to state a material fact which would be necessary to
make the statements contained therein, in light of the circumstances in which
they were made, not misleading, and complies as to form in all material respects
with all applicable requirements of the federal securities laws and the rules
and regulations of the SEC promulgated thereunder.
(j) Financial Statements. The financial statements contained in
the SEC Filings are in accordance with the respective books and records of OPS,
have been prepared in accordance with generally accepted accounting principles,
except as noted therein, and on a basis consistent with prior periods of OPS,
excepted as noted therein, and fairly present the financial position, results of
operations and shareholder's equity of OPS as of the dates and for the periods
indicated.
(k) Absence of Material Change. Since June 30, 1996, OPS has not
suffered any material adverse change in the operations, earnings, assets,
liabilities, properties, business or financial condition of OPS.
(l) Full Disclosure. The representations and warranties made by
OPS in this Agreement, or in any schedule, certificate or other document
delivered by or on behalf of it to the Shareholders or TFM in connection
herewith, do not contain any untrue statement of a material fact, or omit to
state a material fact which would be necessary to make the statements contained
herein and therein, in light of the circumstances in which they were made, not
misleading.
35
ARTICLE 5
ADDITIONAL COVENANTS
Section 5.1 Reasonable Best Efforts to Consummate. Each of the
parties hereto agrees to use his or its respective reasonable best efforts to
take, or cause to be taken, all action, and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement.
Section 5.2 Public Statements. From the date hereof and for a
period continuing until the date that is six (6) months after the Closing Date,
OPS and the other parties to this Agreement will cooperate in the preparation
and the issuance of any written or oral statement or other communication
regarding this Agreement or the transactions contemplated hereby to the press,
public, customers, employees or governmental or regulatory authorities. Each of
them shall give the other prior notice of any intended written statement or
communications and shall secure the written approval of the other before issuing
any such written statement or communication except for filings that are required
under the Securities Exchange Act of 1934. Each of the parties shall agree upon
the appropriate information that may be verbally communicated (the "Approved
Public Comments") by each to such third parties regarding the Agreement and the
transactions contemplated hereby. Each party covenants that he or it will not
provide to such third parties any comments other than the Approved Public
Comments without obtaining the prior written approval of the other parties.
Section 5.3 Participation in Plans. Following the Closing, the
employees of the TFM who were such immediately prior to the Closing shall remain
as participants in all employee benefit plans and policies now maintained by or
on behalf of TFM. The employees shall not
36
be eligible to participate in the OPS Section 401(k) plan until the first plan
entry date after the first annual anniversary date of the complete distribution
of assets from TFM Section 401(k) plan trust. Nothing in this Section, whether
expressed or implied, is intended to confer on any employee of TFM, any rights,
remedies, obligations or liabilities under or by reason of this Section 5.3.
Section 5.4 SEC Matters. For a period of three (3) years from and
after the Effective Date (or the expiration of such other period as the SEC may
designate pursuant to Rule 144(k) with respect to the termination of resale
restrictions on restricted securities) or until the Shareholders have disposed
of all of the Stock Consideration, whichever is the first to occur, OPS will (a)
timely make all filings required by the Exchange Act, (b) take any other steps
necessary to assure that "current public information" is available as defined in
17 CFR 230.144(c); and (c) comply with all requirements of Rule 144 or any
successor rule that requires action by OPS.
Section 5.5 Payoff of Certain TFM Debt. As soon as reasonably
practicable after the Effective Date, OPS shall (a) pay off all TFM Loans, (b)
obtain from Comerica the release of all collateral securing the TFM Loans,
including assets pledged and mortgaged by the Shareholders, (c) cause each
Shareholder's guaranty of the TFM Loans to be extinguished, (d) obtain originals
of all TFM Loan documents necessary to effectuate the preceding items, and (e)
deliver to the Shareholders such TFM Loan documents. OPS agrees to hold the
Shareholders and their spouses harmless from all loss, cost and expense,
including attorney's fees, that they may incur on account of OPS's failure to
pay off the TFM Loans in accordance with the preceding sentence.
37
Section 5.6 Contingent Payment.
(a) Price Protection. If on the Distribution Date, the closing
sale price of a share of OPS Common Stock reported on the NASDAQ National
Market, or a successor exchange, as quoted in The Wall Street Journal (the
"Distribution Date Per Share Price"), is less than $15.00 (subject to adjustment
as appropriate for any stock splits, stock dividends, recapitalizations or other
changes to the capital structure of OPS after the Effective Date), OPS will,
after taking into account the effect upon the allocated value of the Stock
Consideration of (1) any distributions of the Stock Consideration to satisfy
indemnification claims and (2) any appropriate adjustments for stock splits,
stock dividends, recapitalization and other changes to the capital structure of
OPS occurring between the Effective Date and the Distribution Date, pay to the
Shareholders that amount of cash necessary to result in the Shareholders
receiving in the aggregate the Purchase Price, as adjusted by clause (1) herein
(the "Contingent Payment").
(b) Determination of Contingent Payment. The amount of the
Contingent Payment, if any, shall equal (1) the number of shares of the Stock
Consideration distributed to the Shareholders on the Distribution Date
multiplied by the difference in the Distribution Date Per Share Price and $15.00
(subject to adjustment as appropriate for any stock splits, stock dividends,
recapitalizations or other changes to the capital structure of OPS after the
Effective Date).
(c) Payment of Contingent Payment. If a Contingent Payment is owed
to the Shareholders pursuant to (a) above, OPS shall deliver the Contingent
Payment to each of the Shareholders in accordance with the percentages set forth
in Exhibit A hereto within five (5) Days after the Distribution Date.
38
(d) Retained Stock Consideration. If (1) a Contingent Payment is
owed to the Shareholders pursuant to this Section 5.6, (2) OPS has delivered to
the Shareholders and the Escrow Agent timely Notice of an indemnification claim,
causing the Escrow Agent to retain any shares of the Stock Consideration on the
Distribution Date, and (3) it is determined subsequently that such claim is
partially or completely invalid, such shares of Stock Consideration shall be
delivered promptly to the Shareholders, and OPS shall, within five (5) Days
after the distribution of such retained shares, deliver to the Shareholders the
amount of Contingent Payment, if any associated therewith.
Section 5.7 Interest applicable to Nonpayment of Obligations. If OPS
fails to pay to the Shareholders any of (a) the Cash Consideration within two
(2) Days after the Effective Date, or (2) the Contingent Payment required
pursuant to Section 5.6 hereof within five (5) Days after the date the payment
was due, OPS shall pay a penalty of two percent (2%) of the amount owed and the
unpaid obligation shall accrue interest thereon at the prime rate reported in
The Wall Street Journal on the date the payment was due (the "Prime Rate"), plus
two percent (2%) per annum, compounded monthly, or the maximum rate permitted by
law, whichever is less, until paid in full. If OPS fails to pay to the
Shareholders any Contingent Payment associated with any retained shares of Stock
Consideration in accordance with Section 5.6(d) hereof within five (5) Days
after the date such shares are distributed to the Shareholders, OPS shall pay a
penalty of two percent (2%) of the amount owed and the unpaid obligation shall
accrue interest thereon at the Prime Rate, or the maximum rate permitted by law,
whichever is less, until paid in full. If the Shareholders must file a claim to
collect the either the Cash Consideration or any Contingent Payment, OPS shall
pay all costs, fees and expenses, including attorneys' fees, incurred in
connection with any such enforcement action.
39
Section 5.8 Operation of TFM and Siimon. From the Closing Date until
the Effective Date, the Shareholders shall operate each of TFM and Siimon in the
ordinary course of business and in a manner consistent with past practices.
ARTICLE 6
SURVIVAL OF REPRESENTATIONS AND WARRANTIES
AND INDEMNIFICATION
Section 6.1 Survival of Representations and Warranties by
Shareholders. Notwithstanding any investigation by OPS, their attorneys or any
of their agents or representatives, the representations and warranties contained
in Section 4.1 made by the Shareholders, and the warranties and representations
in the Officers' Certificates shall survive the Closing for a period of two (2)
years thereafter, at which time they shall expire, except for (a) any
representation or warranty made with regard to taxes, employee benefit plans,
environmental liabilities or title to or conveyance of the TFM Stock or (b) the
existence of a Knowing Misrepresentation. The representations and warranties in
(a) and (b) herein shall survive for the full period of the applicable statute
of limitations.
Section 6.2 Indemnification by Shareholders.
(a) Claims. Subject to the limitations on recovery set forth in
subsection (b) herein, and Sections 6.5 and 6.6 hereof, the Shareholders,
jointly and severally, shall indemnify and hold any of the OPS Indemnitees and
their successors or assigns, harmless from and against all expenses, losses,
claims or damages, fines or penalties (including reasonable attorneys' fees)
that any of the OPS Indemnitees or their successors or assigns may sustain or
which are imposed on, incurred by, or accrued against any of them by reason of
or which result from: (1) any
40
liability for unpaid taxes of TFM incurred for periods prior to the Closing Date
including, without limitation, the taxes excepted in Schedule 4.1(i) of this
Agreement; (2) any untrue or misleading representation, warranty or
certification of the Shareholders or TFM; (3) any material liability that arises
from or relates to the conduct of the business of TFM during any period prior to
the Closing Date, unless such liability was disclosed in the 1995 Financial
Statements or the June Financial Statements or this Agreement including the
exhibits and schedules hereto; (4) any breach of the obligations and covenants
of TFM or the Shareholders (other than the representations and warranties which
are addressed specifically above) under this Agreement or the Escrow Agreement;
and (5) any Knowing Misrepresentation by a Shareholder. The Purchase Price set
forth in Section 1.3 hereof shall be reduced by the amount of any
indemnification payments made pursuant to this Section 6.2.
(b) Limitations on Recovery. The foregoing provisions of this
Section 6.2 shall be entirely limited by the following: (1) there shall be no
recovery under any indemnification obligation of the Shareholders until the
total claims for indemnification under this Section 6.2 exceed $30,000.00, at
which point all valid claims for indemnification hereunder in excess of the
aggregate amount of $30,000.00 shall be recoverable; and (2) there shall be no
recovery on claims for indemnification under this Section 6.2 after the total
recovery on all such claims has exceeded the aggregate amount of proceeds
received by the Shareholders pursuant to this Agreement.
(c) Method of Recovery. The OPS Indemnitees under this Section 6.2
must first recover any amounts due them or any of them arising from valid claims
under this Section 6.2 from the Stock Consideration, or so much thereof as
remains in escrow at the time the claim is made, in accordance with the terms of
the Escrow Agreement, until the Stock Consideration
41
is exhausted. Upon the exhaustion of the Stock Consideration, any recovery on
claims for indemnification under this Section 6.2 shall be recovered from the
Shareholders directly, subject to the limitations of subsections (a) and (b)
above.
Section 6.3 Survival of Representations and Warranties of OPS.
The representations and warranties contained in Section 4.2 made by OPS and the
warranties and representations contained in the Officer's Certificate of OPS
shall survive the Closing for a period of two (2) years thereafter, at which
time they shall expire, except for (a) any representation or warranty made with
regard to the SEC Filings or the acquisition of the TFM Stock and Siimon Stock
for investment purposes only or (b) the existence of a Knowing
Misrepresentation. The representations and warranties in (a) and (b) herein
shall survive for the full period of the applicable statute of limitations.
Section 6.4 Indemnification by OPS. During the period in which any
such representation or warranty shall survive, OPS shall indemnify and hold each
of the Shareholders and their successors or assigns harmless from and against:
(a) all losses, claims or damages (including reasonable attorneys' fees) that
the Shareholders or their successors or assigns may sustain or which are imposed
on, incurred by, or accrued against the Shareholder or his successors or assigns
by reason of or which result from any representation, warranty or certification
of OPS being untrue or misleading when made or as of the Closing; (b) all
losses, claims or damages (including reasonable attorneys' fees) that the
Shareholders or their successors or assigns may sustain, or which are imposed
on, incurred by, or accrued against the Shareholders or their successors or
assigns, at any time by reason of or which result from a Knowing
Misrepresentation by an OPS Responsible Person; or (c) all losses, claims or
damages (including reasonable attorneys' fees) that the Shareholders or their
successors or assigns may
42
sustain by reason of or which result from any breach of the obligations or
covenants of OPS under this Agreement, the Escrow Agreement, or the Employment
Agreements of the Principal Employees or the Key Employee.
Section 6.5 Assertion and Defense of Indemnification Claim.
(a) Assertion of Claim. Any of the OPS Indemnitees or either of
the Shareholders under Sections 6.2 and 6.4, respectively (an "Indemnified
Party"), shall give Notice to the other (an "Indemnifying Party"), and to the
Escrow Agent if an OPS Indemnitee is the Indemnified Party, as soon as
reasonably possible after the Indemnified Party has actual knowledge of any
claim as to which the Indemnifying Party has an obligation to indemnity,
including, the amount thereof, if known, and shall promptly supply any other
information in the possession of the Indemnified Party supporting such claim.
The omission by the Indemnified Party to give Notice as soon as reasonably
possible will not relieve the Indemnifying Party of its indemnification
obligations hereunder, unless the failure to give Notice to the Indemnifying
Party materially prejudices the Indemnifying Party or Notice is given after the
end of the survival period of the applicable representation or warranty or other
basis for such claim. All indemnification claims must be asserted by giving
Notice within the survival period of the applicable representation or warranty
or other basis for such claim.
(b) Defense of Undisputed Claim. The Indemnified Party will permit
the Indemnifying Party (at its expense) to assume the defense of any third party
claim and any litigation resulting therefrom, provided that counsel for the
Indemnifying Party who shall conduct the defense of such claim or litigation
shall be reasonably satisfactory to the Indemnified Party. The Indemnifying
Party may settle or compromise any third party claim or litigation only with the
consent of the Indemnified Party which consent may not be unreasonably withheld.
43
The Indemnified Party shall have the right at all times to
participate in the defense, settlement, negotiations or litigation relating to
any third party claim or demand at its own expense. If the Indemnifying Party
does not assume the defense of any matter which it has an obligation to
indemnify, then the Indemnified Party shall have the right to defend any such
third party claim or demand, and will be entitled to settle any such claim or
demand in its discretion, all at the expense of the Indemnifying Party. In any
event, the Indemnified Party will cooperate in the defense of any such action at
the expense of the Indemnifying Party and the pertinent records of each party
shall be available to the other with respect to such defense.
(c) Defense of Disputed Claim. Should an Indemnifying Party
provide Notice to the Indemnified Party, and to the Escrow Agent if the
Shareholders are the Indemnifying Party, regarding a claim or action by a third
party for which the Indemnifying Party denies liability, the Indemnified Party
shall give the Indemnifying Party a reasonable opportunity:
(1) To conduct any proceedings or negotiations in
connection therewith;
(2) To take all other required steps or proceedings
to settle or defend any such third-party claim or action; and/or,
(3) To employ counsel to contest any such third-party
claim or action in the name of the Indemnified Party or otherwise.
If the Indemnifying Party desires to assume the defense of such
third-party claim or action, they shall promptly give Notice to the Indemnified
Party. The Indemnifying Party and the Indemnified Party may participate in such
defense at their own expense.
(d) Agreement Governs. The Escrow Agreement may also set
forth procedures governing the assertion and resolution of certain claims with
respect to the Stock Consideration. To the extent that any of the procedures set
forth in this Section 6.5 are
44
inconsistent with, or contrary to, those set forth in the Escrow Agreement, the
terms and conditions of this Agreement shall be the controlling provisions.
Section 6.6 Computation of Indemnity Payments. The amount of any
indemnification payable by the Indemnifying Party shall be (a) reduced by the
amount of any Tax Savings realized by the Indemnified Party, and (b) increased
by the amount of any federal or state income tax required to be paid by the
Indemnified Party as a result of the accrual or receipt of any such indemnity
payment. If, after the payment of any such indemnity amount, an Indemnified
Party realizes a Tax Savings, such party shall promptly notify the Indemnifying
Party of such Tax Savings, and shall pay promptly the amount thereof to the
Indemnifying Party.
Section 6.7 Dispute Resolution.
(a) Demand for Arbitration. Except regarding a claim pursuant to
Sections 1.4(b), 5.6 and 5.7 hereof, any controversy, dispute or claim arising
out of, in connection with, or in relation to, the construction, performance or
breach of this Agreement, including without limitation, the validity, scope and
enforceability of this Article 6, shall be adjudicated by arbitration conducted
in accordance with the then existing rules for commercial arbitration of the
American Arbitration Association ("AAA"), or any successor organization. The
demand for arbitration shall be delivered in accordance with the Notice
provisions of this Agreement.
(b) Selection of Arbitrators. Within five (5) Days after receipt
of such demand, the parties shall jointly request a list of arbitrators from the
AAA. Upon receipt of the list of arbitrators, each party shall ▇▇▇▇ selections
and/or rejections and resubmit said list to the AAA. The selections and
rejections shall take place within seven (7) Days after receipt of the proposed
arbitrators from the AAA. The parties shall cooperate with the AAA and/or the
45
appointed arbitrator(s) for the purpose of setting an expeditious hearing, which
shall be conducted in Richmond, Virginia.
(c) Costs and Expenses. Each of the Shareholders and OPS agrees
that if an indemnification claim is disputed by the other party hereto, there
shall be only one arbitration of such dispute pursuant to this Section 6.6 and
the costs of the arbitration shall be borne by such nonprevailing party;
provided, that, if the Shareholders are the nonprevailing party, they shall bear
such costs severally in proportion to the shares of Stock Consideration
forfeitable by each such Shareholder upon resolution of the dispute, but jointly
to the extent any such Shareholder shall fail to pay his share of such costs
within thirty (30) Days of the arbitrators' award. In any case, and unless
otherwise provided herein, the fees and expenses of the arbitrator(s), hearing
room and court reporter, if any, shall be borne by the nonprevailing party.
Each party may be represented by counsel if they so choose.
(d) Binding Nature of Decision. The parties intend this agreement
to arbitrate to be valid, enforceable and irrevocable. The decision of the
arbitrator(s) with respect to all matters except the validity of this Agreement,
which shall be rendered no later than six (6) months after the date the hearing
begins, shall be final and binding upon the parties hereto and judgment on such
award may be entered by either party in any court having jurisdiction over the
person or properly of the party against whom such award is sought to be
enforced. The parties stipulate that the arbitration provisions hereof shall be
a complete defense to any suit, action or proceeding instituted in any federal,
state or local court, or before any administrative tribunal with respect to any
dispute, controversy or alleged breach of this Agreement. The arbitration
provisions of this Agreement shall survive any termination or expiration of this
Agreement.
46
Section 6.8 Exclusive Remedy. If the Closing shall occur, the
indemnification provided for in this Section shall be the sole and exclusive
remedy for any inaccuracy or breach of any warranty or representation made by
any party in the Agreement or in any certificate or document delivered pursuant
to or in connection with the Agreement; provided, however, no party shall be
precluded from seeking any remedy available for (i) any inaccuracy or breach
which constitutes a Knowing Misrepresentation; or (ii) failure by any other
party to comply with any covenant or agreement contained in this Agreement to be
performed or complied with after the Closing.
ARTICLE 7
MISCELLANEOUS
Section 7.1 Termination and Abandonment.
(a) General. This Agreement may be terminated and the
transactions contemplated hereby may be abandoned at any time prior to the
Closing:
(1) by mutual consent of the Shareholders and an OPS
Responsible Person;
(2) by OPS if any of the conditions provided for in
Section 4.1 shall not be met on the Closing Date or waived in writing by OPS;
and
(3) by the Shareholders if any of the conditions
provided for in Section 4.2 shall not be met on the Closing Date or waived in
writing by each of the Shareholders.
(b) Procedure Upon Termination. In the event of termination and
abandonment of this Agreement by OPS or the Shareholders pursuant to subsection
(a) of this Section, written Notice thereof shall promptly be given to the other
parties hereto and this
47
Agreement shall terminate and the transactions contemplated hereby shall be
abandoned without further action by OPS or the Shareholders.
(c) Automatic Termination. This Agreement shall automatically
terminate at 12:01 a.m. on October 15, 1996, unless this Agreement and the
transactions contemplated hereby shall have previously closed and been
consummated and each party shall retain all of their rights and remedies with
regard to said termination.
(d) Confidentiality. In the event that this Agreement terminates
in accordance with this Section, the provisions of the Prenegotiation
Confidentiality Agreement shall remain in full force and effect. Each party will
keep all information acquired by it regarding the other party or parties
confidential and will not use or disseminate such information for any other
purpose and will each return to the other all written documents and materials
obtained from the other in connection herewith.
Section 7.2 Fees and Expenses. Whether or not the transactions
contemplated by this Agreement are consummated, each of the parties hereto shall
pay his or its own fees and expenses incident to the negotiation, preparation
and execution of this Agreement, including attorneys' and accountants' fees.
Section 7.3 Notices. All notices, requests, demands, waivers and
other communications required or permitted to be given under this Agreement
shall be in writing and shall be deemed to have been duly given if delivered
personally or mailed, certified or registered mail with postage prepaid, or sent
by telex, telegram or telecopier, as follows:
(a) if to the Shareholders, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
48
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and a copy to:
Fraser ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇, P.C.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esquire
(b) if to OPS, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
Open Plan Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Chief Financial Officer and Secretary
Open Plan Systems, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
Two ▇▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇., Esquire
or to such other person or address as either party shall specify by notice in
writing to the other party. All such notices, requests, demands, waivers and
communications shall be deemed to have been received on the date of delivery or
on the third business day after the mailing thereof.
49
Section 7.4 Entire Agreement. This Agreement, and the Schedules and
Exhibits attached hereto, all of which shall be deemed a part of this Agreement,
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
oral and written, between the parties hereto with respect to the subject matter
hereof, except the Prenegotiation Confidentiality Agreement.
Section 7.5 Binding Effect; Benefit. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, whether expressed or implied,
is intended to confer on any person other than the parties hereto or their
respective successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement. Neither party hereto may
assign its rights or obligations hereunder to any other Person without the prior
written consent of the other party.
Section 7.6 Section Headings. The Section headings contained in this
Agreement are inserted for convenience of reference purposes only and shall not
affect the meaning or interpretation of this Agreement.
Section 7.7 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which together shall be deemed to be one and the same instrument.
Section 7.8 Applicable Law. To the extent permitted by law, this
Agreement and the legal relations between the parties hereto shall be governed
by and construed in accordance with the laws of the State of Michigan.
50
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first above written.
Open Plan Systems, Inc.
By:_______________________________________
ATTEST: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
President
-----------------------
Secretary
Immaculate Eagle, Inc., d/b/a
TFM Total Facilities Management
By:_________________________________
▇▇▇▇ ▇. ▇▇▇▇▇▇, President
ATTEST:
------------------------
Secretary
Shareholders:
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
51
List of Schedules:
Schedule 4.1(a) Ownership of TFM Stock
Schedule 4.1(b) TFM Obligations to Issue Additional Stock
Schedule 4.1(c) Subsidiaries
Schedule 4.1(d) Qualifications to Do Business as a Foreign Entity
Schedule 4.1(f) Required Approvals and Notices; Conflicts with
Instruments to Which TFM is Party
Schedule 4.1(g) Qualifications to Financial Statements
Schedule 4.1(h) Undisclosed Liabilities
Schedule 4.1(i) Tax Matters
Schedule 4.1(j) Title to Properties; Liens and Encumbrances
Schedule 4.1(k) Legal Proceedings
Schedule 4.1(l) Insurance
Schedule 4.1(m) Labor Relations
Schedule 4.1(n) Commitments and Customer Relationships
Schedule 4.1(o) Intellectual Property
Schedule 4.1(p) Accounts Payable
Schedule 4.1(q) Regulatory Compliance
Schedule 4.1(r) Absence of Certain Changes or Events
Schedule 4.1(s) Employee Benefit Plans
Schedule 4.1(u) Violation of Environmental Laws
Schedule 4.1(v) Employees, Directors, Officers
Schedule 4.1(w) Bank Accounts
Schedule 4.2(e) Governmental Action
List of Exhibits:
Exhibit A List of Shareholders
Exhibit B Escrow Agreement
Exhibit C 1995 Financial Statements
Exhibit D June Financial Statements
Exhibit E-1 Employment Agreements of the Principal Employees
Exhibit E-2 Employment Agreement of the Key Employee
Exhibit F Opinion of Counsel for TFM and Shareholders
Exhibit G Shareholder Acknowledgement
Exhibit H Opinion of Counsel for OPS
EXHIBIT A
TFM
LIST OF SHAREHOLDERS/CONSIDERATION RECEIPT
==================================================================================================================================
Shares Shares Shareholder's Cash Stock
Shareholder Name of of Percentage of Consideration Consideration
TFM Siimon Purchase Price Paid at Closing Delivered to
Stock Stock Escrow Agent
----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇ 500 2,500 50.0% $1,968,750.00 43,750
----------------------------------------------------------------------------------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 500 2,500 50.0% $1,968,750.00 43,750
----------------------------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------------------------
TOTALS 1,000 5,000 100.0% $3,937,500.00 87,500
==================================================================================================================================