EXHIBIT 2.4
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AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF JULY 10, 1998
AMONG
WORK INTERNATIONAL CORPORATION,
ACC ACQUISITION, INC.,
ACCESS STAFFING, INC.,
AND
ITS STOCKHOLDERS
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "Agreement") is made as of
July 10, 1998, among WORK INTERNATIONAL CORPORATION, a Texas corporation
("WORK"), ACC ACQUISITION, INC., a California corporation and a wholly owned
subsidiary of WORK ("Newco"), ACCESS STAFFING, INC., a California corporation
(the "Company"), and the persons listed on the signature pages of this Agreement
under the caption "Stockholders" (collectively, the "Stockholders," and each of
them, individually, a "Stockholder").
PRELIMINARY STATEMENTS
The parties to this Agreement wish to effect a business combination
pursuant to which:
(i) Newco will merge into the Company (the "Merger") on the
terms and subject to the conditions of this Agreement;
(ii) WORK, via mergers involving other WORK subsidiaries, will
acquire the stock of all or some of the entities other than the
Company identified in the accompanying Addendum I (each an "Other
Founding Company" and, collectively with the Company, the "Founding
Companies") under agreements similar to this Agreement entered into
among the Other Founding Companies, their stockholders, WORK and other
subsidiaries of WORK (collectively, the "Other Agreements");
(iii) WORK will effect a public offering of shares of its common
stock; and
(iv) the Stockholders will receive the Merger Consideration (as
such term is hereinafter defined).
The respective boards of directors of WORK, Newco and the Company have
approved and adopted this Agreement to effect a transaction involving a transfer
of the nature described in Section 351 of the Code.
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
representations and undertakings contained in this Agreement, the parties to
this Agreement agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. Certain Defined Terms. As used in this Agreement, the
following terms have the meanings assigned to them below in this Section 1.01:
"Adjustment Date" means (a) if the Closing occurs on or before the
twentieth day of a month, the last day of the second month preceding the
date of the Closing and (b) if the
Closing occurs after the twentieth day, and on or before the last day, of a
month, the last day of the month preceding the date of the Closing.
"Agreement" means this Agreement, including the Disclosure Statement
relating to this Agreement and all attached Schedules, Annexes and
Exhibits, as each of them may be amended, modified or supplemented from
time to time under their provisions or the provisions of this Agreement.
"Business Corporation Act" means the California General Corporation Law.
"Ceiling Amount" means at any time $6,276,748.
"Closing" has the meaning specified in Section 7.01(a).
"Company Common Stock" means the common stock, no par value, of the
Company.
"Counsel for the Company and the Stockholders" means ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇.
"Counsel for WORK and Newco" means ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
"Current Date" means any day during the 20-day period ending on the date
of the Closing.
"Designated Current Liabilities" means current liabilities of the Company
with respect to (i) current accrued and current deferred income taxes or
(ii) amounts borrowed by the Company to pay the amount of the redemption
payment to be paid to the ESOP pursuant to the Redemption Agreement or
amounts accrued by the Company at the Adjustment Date with respect to the
Supplemental ESOP Payment.
"Disclosure Statement" means the written statement executed by the
Company and each of the Stockholders and delivered to WORK prior to the
execution and delivery of this Agreement, in which either (a) exceptions
are taken to certain of the representations and warranties made by the
Company and the Stockholders in this Agreement or (b) it is confirmed that
no exception is taken to that representation and warranty.
"Effective Time" has the meaning specified in Section 2.02.
"ESOP" means the Access Staffing, Inc. Employee Stock Ownership Plan
created pursuant to the Employee Stock Ownership Trust Agreement dated
January 1, 1990, as amended and restated.
"ESOP Appraisal" means the current fair market value appraisal of the per
share value of the Company Common Stock obtained by the ESOP from the ESOP
Appraiser.
"ESOP Appraised Value per Share" means the value per share of Company
Common Stock set forth in the ESOP Appraisal.
"ESOP Appraiser" means ▇.▇. ▇▇▇▇▇▇▇ & Co., Inc.
"ESOT" means the trust created pursuant to the ESOP.
"▇▇▇▇▇ Revocable Trust" means The ▇▇▇▇▇ Revocable Trust, an Arizona
trust, created pursuant to The ▇▇▇▇▇ Revocable Trust Agreement dated as of
February 19, 1998, the general partner of the RAE L.L.P.
"▇▇▇▇▇ Unitrust" means The ▇▇▇▇▇ Charitable Remainder Unitrust, an
Indiana trust, created under The ▇▇▇▇▇ Charitable Remainder Unitrust
Agreement dated as of April 2, 1997.
"Holdback Termination Time" has the meaning specified in Section 11.21.
"Initial Calculation Date" means March 31, 1998.
"Initial Financial Statements" means (a) the audited balance sheets of
the Company at December 31, 1997 and 1996, and the related audited
statements of operations, stockholders' equity and cash flows for each of
two fiscal years in the two-year period ended December 31, 1997, together
with the related audit report of KPMG Peat Marwick LLP, and (b) the Current
Balance Sheet and the related unaudited statements of operations,
stockholders' equity and cash flows for the three-month period ended on the
Current Balance Sheet Date.
"Long Term Debt" means indebtedness for borrowed money of the Company
with a maturity of one year or more and includes indebtedness incurred
under Capital Leases.
"Majority Stockholders" means any Stockholder or combination of
Stockholders who at the date of this Agreement own shares of Company Common
Stock representing more than two-thirds of the total number of shares of
Company Common Stock outstanding at the date of this Agreement.
"Merger Consideration" has the meaning specified in Section 2.04.
"Newco" means ACC Acquisition, Inc., a California corporation.
"New Employment Agreement" means the Employment Agreement entered into as
of the date of this Agreement, between the Company and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"Parties" means the parties to this Agreement.
"Pro Rata Share" means, with respect to the ESOP, 0%, with respect to the
RAE L.L.P., 50%, and with respect to the ▇▇▇▇▇ Unitrust, 50%.
"RAE L.L.P." means RAE Family Limited Partnership, L.L.P., an Arizona
limited partnership.
"Redemption Agreement" has the meaning specified in Section 11.17(a).
"Responsible Officer" means either of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇.
"Restricted Period" has the meaning specified in Section 11.02.
"Staffing Industry" means the business of providing temporary personnel
staffing, personnel placement, staff leasing, professional employer
organization and training and business solutions.
"Supplemental ESOP Payment" has the meaning specified in Section
11.17(a).
"Surviving Corporation" means the Company, which is to be designated in
the Certificate of Merger as the surviving corporation of the Merger.
"Territory" has the meaning specified in Section 10.01.
"Threshold Amount" means 2% of the Ceiling Amount.
"Transfer Taxes" has the meaning specified in Section 11.07.
"Uniform Provisions" means the Uniform Provisions for the Acquisition of
Founding Companies attached as Annex 1 to this Agreement.
"WORK" means Work International Corporation, a Texas corporation.
"WORK Acquisition Candidate" means any Entity engaged in the Staffing
Industry and which shall have been called on by any of the Company, WORK or
a Subsidiary of the Company or WORK in connection with the possible
acquisition by any of them of that Entity or with respect to which any of
them has made an acquisition analysis.
"Working Capital" means (a) current assets of the Company minus (b) the
sum of (i) the product of current liabilities of the Company (other than
Designated Current Liabilities) multiplied by 1.25 and (ii) the product of
the Designated Current Liabilities multiplied by 1.00.
Section 1.02. Definitions in Uniform Provisions. Capitalized terms used
in this Agreement but not defined in this Section 1.01 have the meanings
assigned to them in the Preliminary Statements or in Article I of the Uniform
Provisions (the text of which is by this reference incorporated in this
Agreement), as the case may be.
ARTICLE II
THE MERGER AND RELATED MATTERS
Section 2.01. Certificate of Merger. On the terms and subject to the
conditions of this Agreement, the Company will cause a Certificate of Merger to
be duly executed and delivered on or promptly after the date of the Closing to
the Secretary of State of the State of California.
Section 2.02. The Effective Time. The effective time of the Merger
(the "Effective Time") will be the time on the IPO Closing Date which the
Certificate of Merger specifies or, if the Certificate of Merger does not
specify another time, 8:00 a.m., central time, on the IPO Closing Date.
Section 2.03. Certain Effects of the Merger. At and as of the Effective
Time, (a) Newco will be merged with and into the Company in accordance with the
provisions of the Business Corporation Act, (b) Newco will cease to exist as a
separate legal entity, (c) the certificate or articles of incorporation of the
Company will be amended to change its authorized capital stock to 1,000 shares,
par value $1.00 per share, of Common Stock, (d) the Company will be the
Surviving Corporation and, as such, will, all with the effect provided by the
Business Corporation Act, (i) possess all the properties and rights, and be
subject to all the restrictions and duties, of the Company and Newco and (ii) be
governed by the laws of the State of California, (e) the Charter Documents of
the Company then in effect (after giving effect to the amendment of the
Company's certificate or articles of incorporation specified in clause (c) of
this sentence) will become and thereafter remain (until changed in accordance
with (i) applicable law, in the case of the certificate or articles of
incorporation or (ii) their terms, in the case of the bylaws) the Charter
Documents of the Surviving Corporation, (f) the initial board of directors of
the Surviving Corporation will be the Persons named in Schedule 2.03, who will
hold the office of director of the Surviving Corporation subject to the
provisions of the applicable laws of the State of California and the Charter
Documents of the Surviving Corporation, and (g) the officers of the Surviving
Corporation immediately following the Merger will be as set forth in Schedule
2.03, and each of the Persons so designated in Schedule 2.03 will serve in each
office specified for that Person in Schedule 2.03, subject to the provisions of
the Charter Documents of the Surviving Corporation, until his or her successor
is duly elected to, and, if necessary, qualified for, that office. The Company
will remain a wholly owned subsidiary of WORK for a time period at least equal
to the Restricted Period.
Section 2.04. Effect of the Merger on Capital Stock. As of the Effective
Time, as a result of the Merger and without any action on the part of any holder
thereof:
(a) the shares of Company Common Stock issued and outstanding immediately
prior to the Effective Time will (i) be converted into the right to
receive, without interest, on surrender of the certificate evidencing those
shares, the amount of cash and the number of WORK Common Stock set forth or
determined as provided in Schedule 2.04 (the "Merger Consideration"), (ii)
cease to be outstanding and to exist, and (iii) be canceled and retired;
(b) each share of Company Common Stock held in the treasury of the
Company or by any Company Subsidiary will (i) cease to be outstanding and
to exist and (ii) be canceled and retired; and
(c) each share of Newco Common Stock issued and outstanding immediately
prior to the Effective Time will be converted into one share of Common
Stock, par value $1.00 per share, of the Surviving Corporation, and the
shares of Common Stock of the Surviving Corporation issued on such
conversion will constitute all the issued and outstanding shares of Capital
Stock of the Surviving Corporation.
Each holder of a certificate representing shares of Company Common Stock
immediately prior to the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, without interest, the Merger Consideration and the additional
cash, if any, owing with respect to those shares as provided in Section 2.06.
Section 2.05. Delivery, Exchange and Payment.
(a) At or after the Effective Time: (i) each Stockholder, as the holder
of certificates representing shares of Company Common Stock, will, on
surrender of his certificates to WORK (or any agent which may be appointed
by WORK for purposes of this Section 2.05), receive, and WORK will pay and
issue to each Stockholder, in each case subject to the provisions of
Section 2.06, the Merger Consideration; and (ii) until any certificate
representing Company Common Stock has been surrendered and replaced
pursuant to this Section 2.05, that certificate will, for all purposes, be
deemed to evidence ownership of the number of whole shares of WORK Common
Stock, and the right to receive cash, included in the Merger Consideration
payable in respect of that certificate pursuant to Section 2.04. All
shares of WORK Common Stock issuable in the Merger will be deemed for all
purposes to have been issued by WORK at the Effective Time. All cash
included in the Merger Consideration shall be paid, at WORK's option, by
(a) WORK's company check or checks, (b) one or more wire transfers to
accounts designated by the respective Stockholders at least five Business
Days before the IPO Closing Date, or (c) certified or official bank check
or checks.
(b) Each Stockholder will deliver to WORK (or any agent that may be
appointed by WORK for purposes of this Section 2.05), on or before the IPO
Closing Date, the certificates representing Company Common Stock owned by
the Stockholder, duly endorsed in blank by him, or accompanied by stock
powers duly executed by him in blank, and with all necessary transfer tax
and other revenue stamps, acquired at his expense, affixed and canceled.
Each Stockholder shall cure any deficiencies in the endorsement of the
certificates or other documents of conveyance respecting, or in the stock
powers accompanying, the certificates representing Company Common Stock
delivered by him.
(c) No dividends (or interest) or other distributions declared or
earned after the Effective Time with respect to WORK Common Stock and
payable to the holders of record thereof after the Effective Time will be
paid to the holder of any unsurrendered certificates representing shares of
Company Common Stock for which shares of WORK Common Stock
have been issued in the Merger until the unsurrendered certificates are
surrendered as provided herein, but (i) on such surrender, WORK will cause
to be paid, to the Person in whose name the certificates representing such
shares of WORK Common Stock shall then be issued, the amount of dividends
or other distributions previously paid with respect to such whole shares of
WORK Common Stock with a record date, or which have accrued, subsequent to
the Effective Time, but prior to surrender, and the amount of any cash
payable to such Person for and in lieu of fractional shares pursuant to
Section 2.06 and (ii) at the appropriate payment date or as soon as
practicable thereafter, WORK will cause to be paid to that Person the
amount of dividends or other distributions with a record date, or which
have been accrued, subsequent to the Effective Time, but which are not
payable until a date subsequent to surrender, which are payable with
respect to such number of whole shares of WORK Common Stock, subject in all
cases to any applicable escheat laws. No interest will be payable with
respect to the payment of such dividends or other distributions (or cash
for and in lieu of fractional shares) on surrender of outstanding
certificates.
Section 2.06. Fractional Shares. Notwithstanding any other provision of
this Article II, no fractional shares of WORK Common Stock will be issued, and
any Stockholder otherwise entitled to receive a fractional share of WORK Common
Stock but for this Section 2.06 will instead be entitled to receive a cash
payment for and in lieu thereof in the amount (rounded to the nearest whole
dollar) equal to that Person's fractional interest in a share of WORK Common
Stock multiplied by $12.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Each Stockholder, severally as to himself or herself only, represents and
warrants to, and agrees with, WORK that the representations and warranties
contained in Article III of the Uniform Provisions (the text of which Article
hereby is incorporated herein by this reference) are true and correct, and the
agreements set forth therein are hereby agreed to.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS
The Company and each Stockholder jointly and severally represent and
warrant to, and agree with, WORK that the representations and warranties
contained in Article IV of the Uniform Provisions (the text of which Article
hereby is incorporated herein by this reference) are true and correct, and the
agreements set forth therein are hereby agreed to.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF WORK AND NEWCO
WORK and Newco jointly and severally represent and warrant to, and agree
with, the Company and each Stockholder that the representations and warranties
contained in Article V of the Uniform Provisions (the text of which Article
hereby is incorporated herein by this reference) are true and correct, and the
agreements set forth therein are hereby agreed to.
ARTICLE VI
COVENANTS EXTENDING TO THE EFFECTIVE TIME
Until the Effective Time, subject to the waiver provisions of Section
11.05, each Party will comply with each covenant for which provision is made in
Article VI of the Uniform Provisions (the text of which Article VI is hereby
incorporated herein by this reference) to be performed or observed by that
Party.
ARTICLE VII
THE CLOSING AND CONDITIONS TO CLOSING AND CONSUMMATION
Section 7.01. The Closing and Conditions to Closing.
(a) The Closing. On or before the IPO Pricing Date, the Parties will
take all actions necessary to (i) effect the Merger on the IPO Closing Date
(including, as permitted by the Business Corporation Act, (A) the execution
of a Certificate of Merger meeting the requirements of the Business
Corporation Act and providing that the Merger will become effective on the
IPO Closing Date and (B) the filing of the Certificate of Merger with the
Secretary of State of the State of California), (ii) verify the existence
and ownership of the certificates evidencing the Company Common Stock to be
exchanged for the Merger Consideration pursuant to Section 2.05, and (iii)
satisfy the document delivery requirements to which the obligations of the
Parties to effect the Merger and the other transactions contemplated hereby
are conditioned by the provisions of this Article VII (all those actions
collectively being the "Closing"). The Closing will take place at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ at 10:00
a.m., Houston time, or at such later time on the IPO Pricing Date as WORK
shall specify by written notice to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇. The actions taken at
the Closing will not include the completion of either the Merger or the
delivery of the Company Common Stock or the Merger Consideration pursuant
to Section 2.05. Instead, on the IPO Closing Date, the Certificate of
Merger will become effective pursuant to Section 2.02, and all transactions
contemplated by this Agreement to be closed or completed on or before the
IPO Closing Date, including the surrender of the Company Common Stock in
exchange for the Merger Consideration will be closed or completed, as the
case may be. During the period from the Closing to the IPO Closing Date,
this Agreement may be terminated by the parties only pursuant to Section
12.01 (b).
(b) Incorporation by Reference. The text of Article VII of the Uniform
Provisions hereby is incorporated herein by this reference.
ARTICLE VIII
COVENANTS FOLLOWING THE EFFECTIVE TIME
From and after the Effective Time, subject to the waiver provisions of
Section 11.05, each Party (other than the Company) will comply with each
covenant for which provision is made in Article VIII of the Uniform Provisions
(the text of which Article hereby is incorporated herein by this reference) to
be performed or observed by that Party.
ARTICLE IX
INDEMNIFICATION
The text of Article IX of the Uniform Provisions hereby is incorporated
herein by this reference.
ARTICLE X
LIMITATIONS ON COMPETITION
Section 10.01. Prohibited Activities. Each Stockholder severally
agrees that he will not during the period beginning on the date hereof and
ending on the second anniversary of the IPO Closing Date, directly or
indirectly, for any reason, for his own account or on behalf of or together with
any other Person:
(a) engage as an officer, director or in any other managerial capacity
or as an owner, co-owner or other investor of or in, whether as an
employee, independent contractor, consultant or advisor, in any business in
the Staffing Industry in competition with the Company, any Company
Subsidiary or WORK or any Subsidiary of WORK (WORK and its Subsidiaries
collectively being called "WORK" for purposes of this Article X) within any
territory surrounding any office or facility (each a "facility") in which
any of the Company or the Company Subsidiaries was engaged in business on
the date hereof or immediately prior to the Effective Time (for purposes of
this Article X, the territory surrounding a facility shall be the area
located within 50 miles of the facility, all of such locations being herein
collectively called the "Territory");
(b) call on any natural Person who is at that time employed by the
Company, any Company Subsidiary or WORK with the purpose or intent of
attracting that person from the employ of the Company, any Company
Subsidiary or WORK, provided that a Stockholder may call on and hire any of
his Immediate Family Members;
(c) call on any Person that at that time is, or at any time within one
year prior to that time was, a customer of the Company, any Company
Subsidiary or WORK within the
Territory, (i) for the purpose of soliciting or selling any product or
service in competition with the Company, any Company Subsidiary or WORK
within the Territory and (ii) with the knowledge of the customer
relationship; or
(d) call on any WORK Acquisition Candidate, with the knowledge of that
Person's status as a WORK Acquisition Candidate, for the purpose of
acquiring that Person or arranging the acquisition of that Person by any
Person other than WORK.
Notwithstanding the foregoing, any Stockholder may own and hold as a passive
investment up to 1% of a class of the outstanding Capital Stock of a competing
Entity if that class of Capital Stock is publicly traded.
Section 10.02. Damages. Because of the difficulty of measuring economic
losses to WORK as a result of any breach by a Stockholder of his covenants in
Section 10.01, and because of the immediate and irreparable damage that could be
caused to WORK for which it would have no other adequate remedy, each
Stockholder agrees that WORK may enforce the provisions of Section 10.01 by
injunctions and restraining orders against the Stockholder if he breaches any of
those provisions.
Section 10.03. Reasonable Restraint. The Parties each agree that Sections
10.01 and 10.02 impose a reasonable restraint on the Stockholders in light of
the activities and business of WORK on the date hereof, the current business
plans of WORK and the investment by each Stockholder in WORK as a result of the
Merger.
Section 10.04. Severability; Reformation. The covenants in this Article X
are severable and separate. The unenforceability of any specific covenant in
this Article X is not intended by any Party to, and shall not, affect the
provisions of any other covenant in this Article X. If any court of competent
jurisdiction determines that the scope, time or territorial restrictions set
forth in Section 10.01 are unreasonable as applied to any Stockholder, the
Parties, including the Stockholder in question, acknowledge their mutual
intention and agreement that those restrictions be enforced to the fullest
extent the court deems reasonable, and thereby shall be reformed to that extent
as applied to that Stockholder and any other Stockholder similarly situated.
Section 10.05. Independent Covenant. All the covenants in this Article X
are intended by each Party to, and shall, be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of any Stockholder against WORK, whether predicated on
this Agreement or otherwise, shall not constitute a defense to the enforcement
by WORK of any covenant in this Article X. It is specifically agreed that the
period specified in Section 10.01 shall be computed in the case of each
Stockholder by excluding from that computation any time during which that
Stockholder is in violation of any provision of Section 10.01. The covenants
contained in this Article X shall not be affected by any breach of any other
provision of this Agreement by any Party.
Section 10.06. Materiality. The Company and each Stockholder, severally
and not jointly with any other Person, hereby agree that this Article X is a
material and substantial part of the transactions contemplated by this
Agreement.
ARTICLE XI
GENERAL PROVISIONS
Section 11.01. Treatment of Confidential Information.
(a) Each of the Company and the Stockholders, severally and not jointly
with any other Person, acknowledges that it has or may have had in the
past, currently has and in the future may have access to Confidential
Information of the Company and the Company Subsidiaries, the Other Founding
Companies and their Subsidiaries and WORK and its Subsidiaries. Each of
the Company and the Stockholders, severally and not jointly with any other
Person, agrees that it will keep confidential all such Confidential
Information furnished to it and, except with the specific prior written
consent of WORK will not disclose such Confidential Information to any
Person except (a) Representatives of WORK, (b) its own Representatives,
provided that these Representatives (other than counsel) agree to the
confidentiality provisions of this Section 11.01; and provided, further,
that Confidential Information shall not include (i) such information which
becomes known to the public generally through no fault of any Stockholder,
(ii) information required to be disclosed by law or the order of any
governmental authority under color of law, provided, that prior to
disclosing any information pursuant to this clause (ii), each Stockholder
shall, if possible, give prior written notice thereof to WORK and provide
WORK with the opportunity to contest such disclosure, or (iii) information
with respect to which the disclosing party reasonably believes disclosure
is required in connection with the defense of a lawsuit against the
disclosing party. In the event of a breach or threatened breach by any
Stockholder of the provisions of this Section 11.01 with respect to any
Confidential Information, WORK shall be entitled to an injunction
restraining such Stockholder from disclosing, in whole or in part, that
Confidential Information. Nothing herein shall be construed as prohibiting
WORK from pursuing any other available remedy for such breach or threatened
breach, including the recovery of damages.
(b) Because of the difficulty of measuring economic losses as a result of
the breach of the foregoing covenants in Section 11.01(a), and because of
the immediate and irreparable damage that would be caused to WORK for which
it would have no other adequate remedy, each of the Company and the
Stockholders agrees that WORK may enforce the provisions of Section
11.01(a) by injunctions and restraining orders against each of them who
breaches any of those provisions.
(c) The obligations of WORK set forth in Section 6.01(d) are incorporated
in this Section 11.01 by this reference.
(d) The obligations of the parties under this Section 11.01 shall survive
the termination of this Agreement.
Section 11.02. Restrictions on Transfers of WORK Common Stock.
(a) During the one-year period ending on the first anniversary of the IPO
Closing Date (the "Restricted Period"), no Stockholder voluntarily will:
(i) sell, assign, exchange, transfer, encumber, pledge, distribute, appoint
or otherwise dispose of (A) any shares of WORK Common Stock received by any
Stockholder in the Merger or (B) any interest in (including any option to
buy or sell) any such shares of WORK Common Stock, in whole or in part, and
WORK will have no obligation to, and shall not, treat any such attempted
transfer as effective for any purpose; or (ii) engage in any transaction,
whether or not with respect to any shares of WORK Common Stock or any
interest therein, the intent or effect of which is to reduce the risk of
owning the shares of WORK Common Stock acquired pursuant to Section 2.04
(including, for example engaging in put, call, short-sale, straddle or
similar market transactions); provided, however, that this Section 11.02
shall not restrict any transfer of WORK Common Stock acquired by a
Stockholder pursuant to Section 2.04 to any of that Stockholder's Related
Persons who agree in writing to be bound by the provisions of Section 11.01
and this Section 11.02. The certificates evidencing the WORK Common Stock
delivered to each Stockholder pursuant to Section 2.05 will bear a legend
substantially in the form set forth below:
EXCEPT PURSUANT TO THE TERMS OF THE AGREEMENT AND PLAN OF
REORGANIZATION AMONG THE ISSUER, THE HOLDER OF THIS CERTIFICATE AND THE
OTHER PARTIES THERETO, THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT
BE VOLUNTARILY SOLD, ASSIGNED, EXCHANGED, TRANSFERRED, ENCUMBERED, PLEDGED,
DISTRIBUTED, APPOINTED OR OTHERWISE DISPOSED OF, AND THE ISSUER SHALL NOT
BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED VOLUNTARY SALE, ASSIGNMENT,
EXCHANGE, TRANSFER, ENCUMBRANCE, PLEDGE, DISTRIBUTION, APPOINTMENT OR OTHER
DISPOSITION OF ANY OF THOSE SHARES, DURING THE PERIOD ENDING ON [DATE THAT
IS THE FIRST ANNIVERSARY OF THE IPO CLOSING DATE] (THE "RESTRICTED
PERIOD"). ON THE WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE
ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP ORDER PLACED
WITH THE TRANSFER AGENT) AFTER THE EXPIRATION OF THE RESTRICTED PERIOD.
(b) Each Stockholder, severally and not jointly with any other Person,
(i) acknowledges that the shares of WORK Common Stock to be delivered to
him pursuant to Section 2.04 (A) have not been and, except pursuant to the
Registration Rights Agreement, if applicable, will not be registered under
the Securities Act and therefore may not be resold by him without
compliance with the Securities Act and (B) will, as a result of their
restrictions on transferability which are imposed by this Agreement during
the Restricted Period, have a value materially less at the Effective Time
than the value of then freely tradeable shares of WORK Common Stock, and
(ii) covenants that none of the shares of WORK Common Stock issued to him
pursuant to Section 2.04 will be offered, sold, assigned, pledged,
hypothecated, transferred or otherwise disposed of except after full
compliance with all the applicable provisions of the Securities Act and the
rules and regulations of the SEC and applicable state securities laws and
regulations. All certificates
evidencing shares of WORK Common Stock issued pursuant to Section 2.04 will
bear the following legend in addition to the legend prescribed by Section
11.02(a):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933 AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED
IF THE HOLDER HEREOF COMPLIES WITH THAT ACT AND OTHER APPLICABLE
SECURITIES LAWS.
In addition, certificates evidencing shares of WORK Common Stock issued to
each Stockholder pursuant to Section 2.04 will bear any legend required by
(i) the securities or blue sky laws of the state in which that Stockholder
resides or (ii) the Underwriter in connection with any agreement of that
Stockholder with the Underwriter to the effect set forth in Section
11.02(a).
Section 11.03. Brokers and Agents. The Stockholders jointly and
severally represent and warrant to WORK that the Company is not directly or
indirectly obligated to pay any broker or similar agent in connection with the
transactions contemplated hereby and agree, without regard to the Threshold
Amount limitations set forth in Article IX, to indemnify WORK against all Damage
Claims arising out of claims for any and all fees and commissions of brokers or
similar agents employed or promised payment by the Company.
Section 11.04. Assignment; No Third Party Beneficiaries. This Agreement
and the rights of its Parties may not be assigned (except by operation of law)
and shall be binding on and inure to the benefit of the Parties, the successors
of WORK, and the heirs and legal representatives of the Stockholders (and, in
the case of any trust, the successor trustees of the trust). Neither this
Agreement nor any other Transaction Document is intended, or shall be construed,
deemed or interpreted, to confer on any Person not a party hereto or thereto any
rights or remedies hereunder or thereunder, except as provided in Section
6.05(b) or 11.14, in Article IX, or as otherwise provided expressly herein or
therein.
Section 11.05. Entire Agreement; Amendment; Waivers. This Agreement and
the documents delivered pursuant to it constitute the entire agreement and
understanding among the Parties and supersede all prior agreements and
understandings, both written and oral, relating to the subject matter of this
Agreement. This Agreement may be amended, modified or supplemented, and any
right hereunder may be waived, if, but only if, the amendment, modification,
supplement or waiver is in writing and signed by the Majority Stockholders, the
Company and WORK. The waiver of any of the terms and conditions of this
Agreement shall not be construed or interpreted as, or deemed to be, a waiver of
any of its other term or conditions.
Section 11.06. Counterparts. This Agreement may be executed in multiple
counterparts, each of which will be an original, but all of which together will
constitute one and the same instrument.
Section 11.07. Expenses. Whether or not the transactions contemplated
hereby are consummated, (a) WORK will pay the fees, expenses and disbursements
of WORK and Newco and their Representatives which are incurred in connection
with the subject matter of this Agreement and
any amendments to this Agreement including all costs and expenses incurred in
the performance of and compliance with all conditions to be performed by WORK
and Newco under this Agreement, including the costs of preparing the
Registration Statement, (b) WORK will pay up to a maximum of $25,000 in the
aggregate of the fees, expenses and disbursements of ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇,
L.L.P., counsel to the Founding Companies, incurred in connection with the
subject matter of this Agreement, and (c) the Stockholders will pay from
personal funds, and not from funds of the Company or any Company Subsidiary, (i)
all sales, use, transfer and other similar taxes and fees (collectively,
"Transfer Taxes") incurred in connection with the transactions contemplated
hereby, and (ii) the fees, expenses and disbursements of Counsel for the Company
and the Stockholders incurred in connection with the subject matter of this
Agreement and the Registration Statement on or before the IPO Closing Date. The
Stockholders will file all necessary documentation and Returns with respect to
all Transfer Taxes. In addition, each Stockholder acknowledges that he, and not
the Company, WORK or the Surviving Corporation, will pay all Taxes due upon
receipt of the consideration payable to the Stockholder pursuant to Article II.
Section 11.08. Notices. All notices required or permitted hereunder
shall be in writing, and shall be deemed to be delivered and received (a) if
personally delivered or if delivered by telex, telegram, facsimile or courier
service, when actually received by the Party to whom notice is sent or (b) if
delivered by mail (whether actually received or not), at the close of business
on the third Business Day next following the day when placed in the mail,
postage prepaid, certified or registered, addressed to the appropriate Party or
Parties, at the address of such Party set forth below (or at such other address
as such party may designate by written notice to all other Parties in accordance
herewith):
(i) if to WORK or Newco, addressed to it at:
Work International Corporation
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Chief Acquisitions Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice for purposes of this
Agreement) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Stockholders, addressed to them at their
respective addresses set forth in Schedule 2.04; and
(iii) if to the Company, addressed to it at:
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice for purposes of this
Agreement) to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 11.09. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE, WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF: PROVIDED, HOWEVER, THAT: (A) ARTICLE X
AND THE RIGHTS AND OBLIGATIONS THEREUNDER OF THE PARTIES WILL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF
CALIFORNIA WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF AND (B)
MATTERS PERTAINING SOLELY TO THE LEGALITY AND EFFECTUATION OF THE MERGER SHALL
BE GOVERNED BY THE BUSINESS CORPORATION ACT.
Section 11.10. Exercise of Rights and Remedies. Except as otherwise
provided herein, no delay or omission in the exercise of any right, power or
remedy accruing to any Party as a result of any breach or default hereunder by
any other Party shall impair any such right, power or remedy, nor shall it be
construed, deemed or interpreted as a waiver of or acquiescence in any such
breach or default, or of any similar breach or default occurring later; nor
shall any waiver of any single breach or default be construed, deemed or
interpreted as a waiver of any other breach or default hereunder occurring
before or after that waiver.
Section 11.11. Time. Time is of the essence in the performance of this
Agreement in all respects.
Section 11.12. Reformation and Severability. If any provision of
this Agreement is invalid, illegal or unenforceable, that provision shall, to
the extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the Parties as
expressed herein, and if such a modification is not possible, that provision
shall be severed from this Agreement, and in either case the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
Section 11.13. Remedies Cumulative. Except as otherwise provided in
Section 9.06, no right, remedy or election given by any term of this Agreement
shall be deemed exclusive, but each shall be cumulative with all other rights,
remedies and elections available at law or in equity.
Section 11.14. Respecting the IPO. Each of the Company and the
Stockholders acknowledges and agrees that: (a) no firm commitment, binding
agreement or promise or other assurance of any kind, whether express or implied,
oral or written, exists at the date hereof that the Registration Statement will
become effective or that the IPO will occur at a particular price or within a
particular range of prices or occur at all; (b) neither WORK or any of its
Representatives nor any prospective underwriters in the IPO will have any
liability to the Company, the Stockholders or any of their respective Affiliates
or associates for any failure of (i) the Registration Statement to become
effective (provided, however, that WORK will use its reasonable best efforts to
cause the Registration Statement to become effective prior to September 30,
1998) or (ii) the IPO to occur at a particular price or within a particular
range of prices or to occur at all; and (c) the decision of Stockholders to
enter into this Agreement, or to vote in favor of or consent to the Merger, has
been or will be made independent of, and without reliance on, any statements,
opinions or other communications of, or due diligence investigations that have
been or will be made or performed by, any prospective underwriter relative to
WORK or the IPO. The Underwriter shall have no obligation to any of the Company
and the Stockholders with respect to any disclosure contained in the
Registration Statement except for written information concerning the Underwriter
furnished to the Company by or on behalf of the Underwriter specifically for
inclusion in the Registration Statement.
Section 11.15. Consents.
(a) The Stockholders, as the owners and holders of all the Capital Stock
of the Company, hereby consent to and approve the Merger and the plan of
merger contemplated by this Agreement pursuant to Sections 603 and 1113 of
the Business Corporation Act.
(b) WORK hereby consents to and approves the Merger and plan of merger
contemplated by this Agreement pursuant to Sections 603 and 1113 of the
Business Corporation Act.
Section 11.16. Repayment of Obligations. On or before the IPO Closing
Date, each of the Stockholders shall repay the entire unpaid amount of all
notes, advances and other payment obligations owed by such Stockholder to the
Company.
Section 11.17. Redemption of ESOP Shares; Termination of ESOP.
(a) As of June 29, 1998, the Company terminated the ESOP and in
connection therewith redeemed 50,961 shares of Company Common Stock from
the ESOP for an aggregate purchase price of $912,201.90 pursuant to the
ESOP Stock Redemption Agreement dated June 29, 1998 (the "Redemption
Agreement"), between the Company and the trustees of ESOP, a true and
correct copy of which has been delivered to WORK. Pursuant to Section 2(c)
of the Redemption Agreement, the Company is required to pay to the ESOP an
additional amount (the "Supplemental ESOP Payment") on or before the IPO
Closing Date if the Merger is consummated. Pursuant to the provisions of
Schedule 2.04, the cash portion of the Merger Consideration will be reduced
by the amount, if any, by which the Supplemental ESOP Payment exceeds
$352,298.90 and, if the Supplemental ESOP Payment is not accrued as of the
Adjustment Date, by any portion of the Supplemental ESOP Payment which is
paid by the Company after the Adjustment Date.
(b) After the effective date of termination of the ESOP, no distribution
of its assets to participants and their beneficiaries, (other than normal
distributions in the ordinary course of business to or on behalf of
employees who have separated service with the Company), will be made until
the Company shall have received a determination letter from the IRS to the
effect set forth in the following paragraph.
As soon as practicable following the redemption referred to in Section
11.17(a) above, and in any event within 90 days after the date hereof, the
Company agrees to file a submission to formally request a determination
letter from the IRS to the effect that the ESOP is a qualified plan under
Section 401(a) of the Code upon its termination and that the ESOT is tax
exempt under Section 501(a) of the Code. As soon as administratively
practicable following receipt of a favorable IRS determination letter, the
trustee of the ESOT shall effectuate distributions of all remaining assets
from the ESOT and, thereafter, it shall be liquidated. After liquidation
of the ESOT, WORK agrees to file a final IRS form 5500 for the Plan with
the IRS.
WORK assumes no liability or obligation with respect to the ESOP or ESOT
that results from, relates to, or arises out of, any act or omission by any
person or entity occurring on or prior to the IPO Closing Date or by the
Trustee at any time. The Stockholders covenant and agree that they,
jointly and severally, will indemnify each WORK Indemnified Party against,
and hold each WORK Indemnified Party harmless from and in respect of, all
Damages that arise from, are based on or relate or otherwise are
attributable to any such liability or obligation, to the same extent as if
such matters were WORK Indemnified Losses except that such indemnification
shall be without regard to the Threshold Amount limitation on
indemnification contained in the first sentence of Section 9.06(a).
Section 11.18. Authority of Trustees. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ hereby represent and warrant to WORK and Newco that they are the duly
named and serving trustees of each of the ESOT, the ▇▇▇▇▇ Unitrust and the ▇▇▇▇▇
Revocable Trust, the execution and delivery by them of this Agreement are within
their powers, and the performance by them of this Agreement are within the
powers and purposes of the ESOT, the ▇▇▇▇▇ Unitrust and the ▇▇▇▇▇ Revocable
Trust under the terms of all documents creating, evidencing or governing them,
true and correct copies of all of which have been delivered to WORK, and neither
the execution, delivery nor performance by the ESOT, the ▇▇▇▇▇ Unitrust and the
▇▇▇▇▇ Revocable Trust of this Agreement will violate, constitute a breach of, or
conflict with any documents creating, evidencing or governing the ESOT, the
▇▇▇▇▇ Unitrust and the ▇▇▇▇▇ Revocable Trust.
Section 11.19. Certain Obligations. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
hereby agree that they shall be liable for, and obligated to perform, each
representation, warranty, covenant, indemnity obligation and each other
agreement and undertaking of the RAE L.L.P. and the ▇▇▇▇▇ Unitrust to the same
extent, and subject to the same qualifications and limitations, as if they were
named in this Agreement as Stockholders in the place and stead of the RAE L.L.P.
and the ▇▇▇▇▇ Unitrust. The obligations of Mr. and ▇▇▇. ▇▇▇▇▇ and of the RAE
L.L.P. and the ▇▇▇▇▇ Unitrust shall in all respects be joint and several, and
any right or obligation which any Party would be entitled to enforce against the
RAE L.L.P. and the ▇▇▇▇▇ Unitrust may be enforced directly against Mr. and ▇▇▇.
▇▇▇▇▇ as their direct and primary obligation.
Section 11.20. Amendment to Bylaws. Prior to the date hereof, the Board
of Directors of the Company has approved a resolution amending the bylaws of the
Company to permit WORK to acquire all the shares of Company Common Stock as
provided in this Agreement and to provide that, at the Effective Time, the
restrictions on the ownership of Company Common Stock provided in Article X,
Section 1 of the bylaws of the Company will be of no further force and effect.
Section 11.21. Certain Claims. The Stockholders covenant and agree
that they, jointly and severally, will indemnify each WORK Indemnified Party
against, and hold each WORK Indemnified Party harmless from and in respect of,
all Damages that arise from, are based on or relate or otherwise are
attributable to (i) the pending inquiry by the U.S. Department of Labor with
respect to the ESOP and (ii) any payment made or required to be made pursuant to
Section 2(b) of the Redemption Agreement, in each case to the same extent as if
such matters were WORK Indemnified Losses except that such indemnification shall
be without regard to the Threshold Amount limitation on indemnification
contained in the first sentence of Section 9.06(a).
Until the inquiry by the U.S. Department of Labor referred to in clause (i)
of the preceding paragraph is concluded and the Stockholders have fully
performed their indemnity obligations pursuant to Article IX and this Section
11.21 with respect thereto (the "Holdback Termination Time"), WORK shall
withhold from the Stockholders in accordance with their respective Pro Rata
Shares an aggregate of $250,000 in cash from the Merger Consideration to insure
performance by the Stockholders of their obligations to indemnify and hold
harmless the WORK Indemnified Parties with respect to any Damages that arise
from, are based on or relate or are otherwise attributable to such inquiry. For
purposes of the holdback contemplated by this paragraph, if the Company (x) has
received the determination letter from the IRS referred to in 11.17(b), (y)
provided all information requested by the U.S. Department of Labor with respect
to the ESOP and (z) is unable to determine whether the inquiry referred to in
clause (i) of this Section 11.21 has been concluded, such inquiry will be deemed
concluded if the U.S. Department of Labor fails to respond to each of three
requests from the Company for advice as as to the status of the inquiry. Either
the Company or the trustee of the ESOP may make such requests of the U.S.
Department of Labor within 30 days, 60 days and 90 days, respectively, after
receipt by the Company of the aforementioned determination letter. In the event
that, notwithstanding such indemnity, any WORK Indemnified Party (including the
Company) sustains any Damages, the Company may transfer to such WORK Indemnified
Party (or may retain if such WORK Indemnified Party is the Company) the amount
of such Damages. Any amount retained hereunder which remains in the possession
of WORK at the Holdback Termination Time, shall be transferred to the
Stockholders in accordance with their respective Pro Rata Shares. In lieu of the
cash to be withheld by WORK pursuant to this paragraph, at or prior to the IPO
Closing Date, the Stockholders may deliver to WORK a stand-by letter of credit
in substantially the form of Exhibit 11.21 or in such other form as may be
reasonably acceptable to WORK. Such stand-by letter of credit shall be in the
amount set forth above in this paragraph, shall be issued by a bank reasonably
acceptable to WORK and shall expire December 31, 1999; provided, however, that
to the extent the period during which WORK would be entitled to withhold cash as
hereinabove provided is extended beyond December 31, 1999, the expiration date
of such letter of credit shall likewise be extended.
ARTICLE XII
TERMINATION
Section 12.01. Termination of This Agreement.
(a) This Agreement may be terminated at any time prior to the Closing
solely:
(i) by the mutual written consent of WORK and the Company;
(ii) by the Majority Stockholders or the Company, on the one
hand, or by WORK, on the other hand, if the transactions contemplated
by this Agreement to take place at the Closing shall not have been
consummated by September 30, 1998, unless the failure of such
transactions to be consummated results from the willful failure of the
Party (or in the case of the Stockholders and the Company, any of
them) seeking to terminate this Agreement to perform or adhere to any
agreement required hereby to be performed or adhered to by that Party
prior to or at the Closing or thereafter on the IPO Closing Date;
provided, however, that the date September 30, 1998, set forth above
shall be extended to October 31, 1998, unless, on or before September
15, 1998, Founding Companies which are to receive a majority of the
initial merger consideration (valuing shares of WORK Common Stock at
$12 per share) to be received by all the Founding Companies on the IPO
Closing Date notify WORK that they have elected not to extend such
date beyond September 30, 1998;
(iii) by the Majority Stockholders or the Company, on the one
hand, or by WORK, on the other hand, if a material breach or default
shall be made by the other Party (or in the case of the Stockholders
and the Company, any of them) in the observance or in the due and
timely performance of any of the covenants, agreements or conditions
contained herein and such breach or default continues for fifteen days
after written notice from the Majority Stockholders or the Company, on
the one hand, or from WORK on the other hand; or
(iv) by WORK if it is entitled to do so as provided in Section
6.06.
(b) This Agreement may be terminated after the Closing solely:
(i) by WORK or the Company if the Underwriting Agreement is
terminated pursuant to its terms after the Closing and prior to the
consummation of the IPO; or
(ii) automatically and without action on the part of any party
hereto if the IPO is not consummated within 15 Business Days after the
date of the Closing.
(c) If this Agreement is terminated pursuant to this Section 12.01,
the Merger will be deemed for all purposes to have been abandoned and of no
force or effect. If this
Agreement is terminated pursuant to this Section 12.01 after the
Certificate of Merger has been filed with the Secretary of State of the
State of California, but before the IPO has been consummated, WORK (at
WORK's expense) will take all actions that Counsel for the Company and the
Stockholders advises WORK are required by the applicable laws of the State
of California to rescind the Merger.
Section 12.02. Liabilities in Event of Termination. If this Agreement is
terminated pursuant to Section 12.01, there shall be no liability or obligation
on the part of any Party except (a) as provided in Section 11.07, or (b) to the
extent that such liability is based on the breach by that Party of any of its or
his representations, warranties or covenants set forth in of this Agreement.
[SIGNATURE PAGE FOLLOWS.]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the date
first above written.
WORK INTERNATIONAL CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Vice President and
Chief Acquisitions Officer
ACC ACQUISITION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, President and
Chief Acquisitions Officer
ACCESS STAFFING, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, President
STOCKHOLDERS:
THE RAE FAMILY LIMITED PARTNERSHIP, L.L.P
By: The ▇▇▇▇▇ Revocable Trust created under The
▇▇▇▇▇ Revocable Trust Agreement dated February
19, 1998, General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. Evans, Co-Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇▇▇ ▇. Evans, Co-Trustee
THE ▇▇▇▇▇ CHARITABLE REMAINDER UNITRUST created
under The ▇▇▇▇▇ Charitable Remainder Unitrust
Agreement dated as of April 2, 1997
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
▇▇▇▇▇▇ ▇. Evans, Co-Trustee
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. Evans, Co-Trustee
ADDENDUM 1
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Addendum which are defined in the
captioned Agreement to which this is an Addendum are used herein as therein
defined.
B. The Founding Companies are:
1. Absolutely Professional Staffing, Inc.
2. Botal Associates, Inc.
3. AIM Staffing, Inc.
4. Access Staffing, Inc.
5. Benetemps, Inc.
6. The ▇▇▇▇▇▇▇ Companies Consolidated, Inc.
7. Contract Health Professionals Inc.
8. Core Personnel, Inc.
9. Core Personnel of Arlington, Inc.
10. CoreLink Staffing Services, Inc.
11. Law Pros Legal Placement Services, Inc.
12. Law Resources, Inc.
13. Professional Consulting Network, Inc.
14. ▇▇▇▇▇ ▇▇▇▇▇▇ Associates, Inc.
15. ▇▇▇▇▇ ▇▇▇▇▇▇ Consulting Group, Inc.
16. Sparks Personnel Services, Inc.
17. Sparks Associates, Inc.
18. Customer Care Solutions, LLC
19. Task Management, Inc.
20. ▇▇▇▇ Placement Services Inc.
21. WSi Personnel Services, Inc.
SCHEDULE 2.03
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 2.03 are used
herein as therein defined.
B. The directors of the Surviving Corporation immediately after the
Effective Time are as follows:
▇▇▇▇▇▇ ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇▇ French
▇▇▇▇▇▇ ▇. ▇▇▇▇▇
C. The officers of the Surviving Corporation immediately following the
Effective Time are as follows:
President ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Vice President, Chief Financial Officer ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and Secretary
Vice President and Assistant Secretary ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Vice President and Assistant Secretary ▇▇▇▇ ▇. ▇▇▇▇
SCHEDULE 2.04
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 2.04 are used
herein as therein defined.
B. The name and address of each Stockholder are as follows:
Name Address
----------------- --------------------
RAE L.L.P. ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ Unitrust ▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
C. The aggregate Merger Consideration shall be comprised of (i) an amount
of cash equal to $2,506,132, as adjusted pursuant to paragraph D below, and (ii)
208,843 shares of WORK Common Stock, which shall be payable and issuable to the
Stockholders in accordance with their respective Pro Rata Shares. The Pro Rata
Share of each Stockholder is 50%.
D. The cash portion of the Merger Consideration will be subject to
adjustment based upon changes in Working Capital and Long Term Debt between the
Initial Calculation Date and the Adjustment Date as follows: (i) the cash
portion of the Merger Consideration will be increased for any positive change,
and decreased for any negative change, in the Company's Working Capital between
the Initial Calculation Date and the Adjustment Date, (ii) the cash portion of
the Merger Consideration will be increased for any decrease, and decreased for
any increase, in the amount of Long Term Debt, between the Initial Calculation
Date and the Adjustment Date and (iii) the cash portion of the Merger
Consideration will be reduced by the amount, if any, by which the Supplemental
ESOP Payment exceeds $352,298.90 and, if the Supplemental ESOP Payment is not
accrued as of the Adjustment Date, by any portion of the Supplemental ESOP
Payment which is paid, or to be paid, by the Company after the Adjustment Date.
SCHEDULE 3.01
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.01 are used
herein as therein defined.
B. Each Stockholder is an "accredited investor" as defined in Securities
Act Rule 501(a).
SCHEDULE 3.02
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.02 are used
herein as therein defined.
B. The following table sets forth the ownership of the Company's Capital
Stock:
NUMBER OF
NAME CLASS SHARES OWNED
---- ----- ------------
RAE L.L.P. Common 101,000
▇▇▇▇▇ Unitrust Common 101,000
-------
202,000
C. No exception is taken to the representations and warranties made in
Section 3.02 of the captioned Agreement.
SCHEDULE 3.07
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.07 are used
herein as therein defined.
B. The Stockholders are, alone or with one or more other Persons, the
controlling Affiliate of the following Entity, business or trade (other than the
Company and the Company Subsidiaries, if the Stockholder is an Affiliate of the
Company) that is (a) engaged in any line of business which is the same as or
similar to any line of business in which the Company or any Company Subsidiary
is engaged or (b) is, or has within the three year period ending on the date of
the captioned Agreement, engaged in any transaction with the Company or any
Company Subsidiary except for (i) transactions in the ordinary course of
business of the Company or that Company Subsidiary and (ii) any single
transaction (or series of related transactions) involving property or services
having a value, or the payment of money, of less than $10,000:
None.
SCHEDULE 4.07
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 4.07 are used
herein as therein defined.
B. Set forth below are the authorized Capital Stock of the Company, the
number of shares of Capital Stock of each class or series which are issued and
now outstanding, whether any shares of Capital Stock of the Company are held by
the Company as treasury shares, and whether any Derivative Securities of the
Company are outstanding:
No. of Shares No. of Derivative
No. of Shares Issued and No. of Treasury Shares
Class Par Value Authorized Outstanding Shares Outstanding
--------- --------- ------------- ------------- --------------- -----------------
Common None 1,000,000 202,000 94,000 None
SCHEDULE 4.11
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 4.11 are used
herein as therein defined.
B. The following Related Party Agreements will be permitted to continue in
effect past the date of the Closing in accordance with their terms, subject to
the following provisions of this Schedule:
The New Employment Agreement.
SCHEDULE 4.28
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 4.28 are used
herein as therein defined.
B. The Company has not made, and there is not now in effect, an election
with the IRS to be taxed as an S corporation within the meaning of Section 1361
of the Code.
SCHEDULE 6.02
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.02 are used
herein as therein defined.
B. No exception is taken to the covenants contained in Section 6.02.
SCHEDULE 6.03
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.03 are used
herein as therein defined.
B. The Company and the Company Subsidiaries may make the following
Restricted Payments prior to the Effective Time:
None.
SCHEDULE 6.10
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.10 are used
herein as therein defined.
B. The Company will make all arrangements and take all such actions as are
necessary and satisfactory to WORK to dispose, prior to the Effective Time, of
the following assets in the manner indicated below:
None.
SCHEDULE 8.04
to the
Agreement and Plan of Reorganization
dated as of July 10, 1998
among
Work International Corporation
ACC Acquisition, Inc.
Access Staffing, Inc.
and
the Stockholders Named Therein
A. Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 8.04 are used
herein as therein defined.
B. At or within 120 days following the Effective Time, WORK will cause
the following Stockholder Guarantees to be terminated:
None.