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AGREEMENT AND PLAN OF MERGER
dated as of the 9th day of March, 1999
by and among
THE ALLIANCE GROUP, INC.
(Parent)
and
ALLIANCE ACQUISITION IX CORP.
(Newco)
and
COMMUNICATION SERVICES, INC.
(Company)
and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
(Stockholder of the Company)
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TABLE OF CONTENTS
1. DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. THE MERGER AND OTHER MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . 5
2.1 Delivery and Filing of Articles of Merger. . . . . . . . . . . . . . . 5
2.2 Effective Time of the Merger . . . . . . . . . . . . . . . . . . . . . 5
2.3 Certificate of Incorporation, Bylaws and Board of Directors
of the Surviving Corporation.. . . . . . . . . . . . . . . . . . . . . 5
2.4 Certain Information With Respect to the Capital Stock of Company,
Parent and Newco . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
2.5 Effect of Merger.. . . . . . . . . . . . . . . . . . . . . . . . . . . 6
3. CONVERSION OF STOCK . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4. DELIVERY OF MERGER CONSIDERATION. . . . . . . . . . . . . . . . . . . . . . . 7
4.1 Effective Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.2 Certificates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
4.3 Contribution of Building . . . . . . . . . . . . . . . . . . . . . . . 7
5. CLOSING . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
6. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF COMPANY AND
STOCKHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.1 Due Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.2 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
6.3 Capital Stock of the Company . . . . . . . . . . . . . . . . . . . . . 8
6.4 Transactions in Capital Stock. . . . . . . . . . . . . . . . . . . . . 9
6.5 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.6 Predecessor Status; etc. . . . . . . . . . . . . . . . . . . . . . . . 9
6.7 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . 9
6.8 Liabilities and Obligations. . . . . . . . . . . . . . . . . . . . . . 9
6.9 Accounts and Notes Receivable. . . . . . . . . . . . . . . . . . . . . 10
6.10 Permits and Intangibles. . . . . . . . . . . . . . . . . . . . . . . . 10
6.11 Environmental Matters. . . . . . . . . . . . . . . . . . . . . . . . . 11
6.12 Personal Property. . . . . . . . . . . . . . . . . . . . . . . . . . . 11
6.13 Significant Customers; Material Contracts and Commitments. . . . . . . 12
6.14 Real Property. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
6.15 Insurance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
6.16 Compensation; Organized Labor Matters. . . . . . . . . . . . . . . . . 13
6.17 Employee Plans . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6.18 Compliance with ERISA. . . . . . . . . . . . . . . . . . . . . . . . . 14
6.19 Conformity with Law; Litigation. . . . . . . . . . . . . . . . . . . . 15
6.20 Tax Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
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6.21 No Violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.22 Absence of Changes. . . . . . . . . . . . . . . . . . . . . . . . . . 17
6.23 Deposit Accounts; Powers of Attorney . . . . . . . . . . . . . . . . . 19
6.24 Relations with Governments . . . . . . . . . . . . . . . . . . . . . . 19
6.25 Disclosure . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
6.26 Prohibited Activities. . . . . . . . . . . . . . . . . . . . . . . . . 19
7. ADDITIONAL REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
STOCKHOLDER . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.1 Authority. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7.2 Preemptive Rights. . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF PARENT AND
NEWCO . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.1 Due Organization . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.2 Authorization. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.3 Capital Stock. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
8.4 Transactions in Capital Stock. . . . . . . . . . . . . . . . . . . . . 21
8.5 Subsidiaries . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.6 Liabilities and Obligations. . . . . . . . . . . . . . . . . . . . . . 21
8.7 Conformity with Law; Litigation. . . . . . . . . . . . . . . . . . . . 21
8.8 No Violations. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
8.9 Parent Securities. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
8.10 Business; Real Property; Agreements. . . . . . . . . . . . . . . . . . 22
9. OTHER COVENANTS PRIOR TO CLOSING. . . . . . . . . . . . . . . . . . . . . . . 22
9.1 Access and Cooperation; Due Diligence; Audits. . . . . . . . . . . . . 22
9.2 Conduct of Business Pending Closing. . . . . . . . . . . . . . . . . . 23
9.3 Prohibited Activities by the Company . . . . . . . . . . . . . . . . . 23
9.4 Exclusivity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.5 Agreements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
9.6 Notification of Certain Matters. . . . . . . . . . . . . . . . . . . . 25
9.7 Amendment of Schedules . . . . . . . . . . . . . . . . . . . . . . . . 25
9.8 Further Assurance. . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10. CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDER AND COMPANY. . . . . . . . 26
10.1 Representations and Warranties; Performance of Obligations . . . . . . 26
10.2 No Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.3 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . 26
10.4 Good Standing Certificates . . . . . . . . . . . . . . . . . . . . . . 26
10.5 No Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . 27
10.6 Secretary's Certificates . . . . . . . . . . . . . . . . . . . . . . . 27
10.7 Employment Agreements. . . . . . . . . . . . . . . . . . . . . . . . . 27
10.8 Closing of the IPO or the Private Placement. . . . . . . . . . . . . . 27
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11. CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND NEWCO . . . . . . . . . . . 27
11.1 Representations and Warranties; Performance of Obligations . . . . . . 27
11.2 No Litigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
11.3 Secretary's Certificate. . . . . . . . . . . . . . . . . . . . . . . . 28
11.4 No Material Adverse Effect . . . . . . . . . . . . . . . . . . . . . . 28
11.5 Stockholder Release. . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.6 Termination of Related Party Agreements. . . . . . . . . . . . . . . . 28
11.7 Consents and Approvals . . . . . . . . . . . . . . . . . . . . . . . . 28
11.8 Good Standing Certificates . . . . . . . . . . . . . . . . . . . . . . 28
11.9 FIRPTA Certificate . . . . . . . . . . . . . . . . . . . . . . . . . . 28
11.10 Closing of the IPO or Private Placement. . . . . . . . . . . . . . . . 28
11.11 Employment Agreement . . . . . . . . . . . . . . . . . . . . . . . . . 29
11.12 Financial Statements . . . . . . . . . . . . . . . . . . . . . . . . . 29
12. ADDITIONAL COVENANTS OF PARENT AND STOCKHOLDER. . . . . . . . . . . . . . . . 29
12.1 Preparation and Filing of Tax Returns. . . . . . . . . . . . . . . . . 29
12.2 Preservation of Employee Benefit Plans . . . . . . . . . . . . . . . . 29
13. INDEMNIFICATION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
13.1 General Indemnification by the Stockholder . . . . . . . . . . . . . . 30
13.2 Indemnification by Parent. . . . . . . . . . . . . . . . . . . . . . . 30
13.3 Third Person Claims. . . . . . . . . . . . . . . . . . . . . . . . . . 30
13.4 Exclusive Remedy . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
13.5 Limitations on Indemnification . . . . . . . . . . . . . . . . . . . . 31
14. TERMINATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . 32
14.1 Termination. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
14.2 Liabilities in Event of Termination. . . . . . . . . . . . . . . . . . 32
15. NONCOMPETITION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
15.1 Prohibited Activities. . . . . . . . . . . . . . . . . . . . . . . . . 32
15.2 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.3 Reasonable Restraint . . . . . . . . . . . . . . . . . . . . . . . . . 33
15.4 Severability, Reformation. . . . . . . . . . . . . . . . . . . . . . . 33
15.5 Independent Covenant . . . . . . . . . . . . . . . . . . . . . . . . . 34
15.6 Materiality. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
16. NONDISCLOSURE OF CONFIDENTIAL INFORMATION . . . . . . . . . . . . . . . . . . 34
16.1 Company and Stockholder. . . . . . . . . . . . . . . . . . . . . . . . 34
16.2 Parent and Newco . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
16.3 Damages. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
16.4 Survival . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
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17. TRANSFER RESTRICTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
18. INVESTMENT REPRESENTATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . 36
18.1 Compliance With Law. . . . . . . . . . . . . . . . . . . . . . . . . . 36
18.2 Economic Risk, Sophistication. . . . . . . . . . . . . . . . . . . . . 37
19. REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
19.1 PiggyBack Registration Rights. . . . . . . . . . . . . . . . . . . . . 37
19.2 Demand Registration Rights . . . . . . . . . . . . . . . . . . . . . . 37
19.3 Registration Procedures. . . . . . . . . . . . . . . . . . . . . . . . 38
19.4 Other Registration Matters . . . . . . . . . . . . . . . . . . . . . . 41
19.5 Indemnification. . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
19.6 Contribution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
19.7 Undertaking to File Reports and Cooperate in Rule 144 Transactions . . 45
20. GENERAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
20.1 Cooperation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
20.2 Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 45
20.3 Entire Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
20.4 Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
20.5 Brokers and Agents . . . . . . . . . . . . . . . . . . . . . . . . . . 46
20.6 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
20.7 Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
20.8 Exercise of Rights and Remedies. . . . . . . . . . . . . . . . . . . . 47
20.9 Time . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
20.10 Reformation and Severability . . . . . . . . . . . . . . . . . . . . . 47
20.11 Remedies Cumulative. . . . . . . . . . . . . . . . . . . . . . . . . . 47
20.12 Captions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
20.13 Public Statements. . . . . . . . . . . . . . . . . . . . . . . . . . . 47
20.14 Amendments and Waivers . . . . . . . . . . . . . . . . . . . . . . . . 47
20.15 Arbitration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
20.16 338 Election . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
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AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (the "Agreement") is made as of the 9th
day of March, 1999, by and among THE ALLIANCE GROUP, INC., an Oklahoma
corporation ("Parent"), ALLIANCE ACQUISITION IX CORP., an Oklahoma corporation
("Newco"), COMMUNICATION SERVICES, INC., an Oklahoma corporation (the
"Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the only stockholder of the Company (the
"Stockholder").
RECITALS
WHEREAS, Newco is a corporation duly organized and existing under
the laws of the State of Oklahoma, having been incorporated on March 9,
1999, solely for the purpose of completing the transaction set forth
herein, and Newco is a wholly-owned subsidiary of Parent, a corporation
organized and existing under the laws of the State of Oklahoma; and
WHEREAS, the respective Boards of Directors of Newco and of Company
(which together are hereinafter collectively referred to as "Constituent
Corporations") deem it advisable and in the best interests of the
Constituent Corporations and their respective stockholders that Newco merge
with and into Company, as set forth in Annex I, pursuant to this Agreement
and the applicable provisions of the laws of the State of Oklahoma
("Merger"); and
WHEREAS, this Merger is being effectuated pursuant to Section
368(a)(1)(A) of the Code; and
WHEREAS, Stockholder is the owner of 500 shares of Common Stock,
$1.00 par value, of Company ("Company Stock"), representing all the issued
and outstanding capital stock of Company outstanding on the date of this
Agreement;
WHEREAS, in the Merger the issued and outstanding shares of Company
Stock will be converted into aggregate consideration of $475,000, comprised
of $200,000 in cash and shares of Common Stock [representing $275,000]
$.01 par value, of Parent ("Parent Stock"); and
NOW, THEREFORE, in consideration of the premises and of the mutual
representations, warranties, covenants, and agreements herein contained,
the parties hereto hereby agree as follows:
1. DEFINITIONS
Unless the context otherwise requires, capitalized terms used in this
Agreement or in any schedule, or annex attached hereto and not otherwise defined
shall have the following meanings for all purposes of this Agreement.
"Adverse Effect" has the meaning set forth in Section 6.1.
"Affiliates" means a Person who directly or indirectly through one or more
intermediaries controls, is controlled by or is under common control with, the
Company.
"Agreement" has the meaning set forth in the first paragraph of this
Agreement.
"Annex" means each Annex attached hereto that represents a document
relevant to the transactions contemplated in this Agreement.
"A/R Aging Reports" has the meaning set forth in Section 6.9.
"Balance Sheet Date" has the meaning set forth in Section 6.7.
"Certificate of Merger" means the Certificate of Merger with respect to the
Merger substantially in the form attached as Annex I, with such other changes
therein as may be required by applicable state law.
"Charter Documents" means the Certificate of Incorporation, Articles of
Incorporation or other instrument pursuant to which any corporation, partnership
or other business entity that is a signatory to this Agreement was formed or
organized in accordance with applicable law.
"Closing" has the meaning set forth in Section 5.
"Closing Date" has the meaning set forth in Section 5.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"Company Financial Statements" has the meaning set forth in Section 6.7.
"Company Stock" has the meaning set forth in the third recital of this
Agreement.
"Constituent Corporations" has the meaning set forth in the second recital
of this Agreement.
"Controlled Group" has the meaning set forth in Section 6.18.
"Demand Registration" has the meaning set forth in Section 19.2.
"Documents" has the meaning set forth in Section 6.21.
"Effective Time" means the time as of which the Merger becomes effective,
which shall, in any case, occur on the Closing Date.
"Environmental Laws" has the meaning set forth in Section 6.11.
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"ERISA" has the meaning set forth in Section 6.17.
"Expiration Date" means (i) except as set forth in (iii) below, the 24th
monthly anniversary of the Closing Date when used in connection with a breach of
any representation, warranty, covenant or agreement set forth in Sections 6, 7
and 8 of this Agreement, (ii) the 36th monthly anniversary of the Closing Date
when used in connection with the failure to observe the terms of Section 15 and
(iii) the date on which suit for the enforcement of any claims for Taxes, claims
under Environmental Laws, or claims under any other covenant or agreement set
forth in this Agreement and not specified in (i) or (ii) above becomes barred by
the applicable statute of limitation.
"Founding Companies" has the meaning set forth in Section 9.1(ii).
"Founding Stockholders" has the meaning set forth in Section 19.2.
"Hazardous Wastes" and "Hazardous Substances" have the meanings set forth
in Section 6.13.
"Indemnification Threshold" has the meaning set forth in Section 13.5.
"Indemnified Party" has the meaning set forth in Section 13.3.
"Indemnifying Party" has the meaning set forth in Section 13.3.
"IPO" means the Parent's initial public offering of Parent Stock.
"IRS" or "Internal Revenue Service" means the Internal Revenue Service of
the Department of the Treasury.
"Leases" means all real and personal property leased by Company and used,
useful or held for use in connection with Company's business.
"Liens" has the meaning set forth in Section 6.3.
"Merger" has the meaning set forth in the second recital of this Agreement.
"Newco" has the meaning set forth in the first paragraph of this Agreement.
"Newco Stock" means the common stock, par value $.01 per share of Newco.
"OGCA" means the Oklahoma General Corporation Act.
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"Other Stockholders" means the persons and entities that receive shares of
Parent Stock and/or cash upon the acquisition by Parent of assets or businesses
in which such persons and entities owned an interest on or prior to the closing
date of the IPO or Private Placement.
"Parent" has the meaning set forth in the first paragraph of this
Agreement.
"Parent Charter Documents" has the meaning set forth in Section 8.1.
"Parent Documents" has the meaning set forth in Section 8.8.
"Parent Stock" has the meaning set forth in the fourth recital of this
Agreement.
"Person" means an individual, a corporation, a partnership, an association,
a limited liability company, a joint stock company, a trust, or other
unincorporated organization.
"Private Placement" means the Parent's private placement of Parent Stock.
"Prohibited Activities" has the meaning set forth in Paragraph 6.26.
"Qualified Plans" has the meaning set forth in Section 6.18.
"Registerable Securities" means the shares of Parent Stock registerable
pursuant to Section 19.
"Restricted Securities" has the meaning set forth in introductory paragraph
to Section 18.
"Returns" means any returns, reports or statements (including any
information returns) required to be filed for purposes of a particular Tax.
"Schedule" means each Schedule attached hereto, which shall reference the
relevant sections of this Agreement, on which parties hereto disclose
information as part of their respective representations, warranties, covenants
and agreements.
"SEC" means the United States Securities and Exchange Commission.
"December Balance Sheet" has the meaning set forth in Section 6.7.
"Stockholder" has the meaning set forth in the first paragraph of this
Agreement.
"Subsidiaries" means, with respect to any Person, any corporation or other
organization, whether incorporated or unincorporated, of which (i) such Person
or any other Subsidiary of such Person is a general partner (excluding
partnerships, the general partnership interests of which held by such Person or
any Subsidiary of such Person do not have a majority of the voting interest in
such partnership) or (ii) at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority of the
Board of Directors or others performing similar
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functions with respect to such corporation or other organization is directly
or indirectly owned or controlled by such Person, by any one or more of its
Subsidiaries, or by such Person and one or more of its Subsidiaries.
"Surviving Corporation" shall mean Company as the surviving party in the
Merger.
"Tax" or "Taxes" means all Federal, state, local or foreign net or gross
income, gross receipts, net proceeds, sales, use, ad valorem, value added,
franchise, bank shares, withholding, payroll, employment, excise, property,
deed, stamp, alternative or add on minimum, environmental or other taxes or
assessments, whether disputed or not, together with any interest, penalties,
additions to tax or additional amounts with respect thereto.
"Territory" has the meaning set forth in Section 15.1(i).
"Third Person" has the meaning set forth in Section 13.3.
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
2. THE MERGER AND OTHER MATTERS
2.1 DELIVERY AND FILING OF ARTICLES OF MERGER. The Constituent
Corporations will cause (i) the Certificate of Merger to be signed, verified and
filed with the Secretary of State of the State of Oklahoma and (ii) photocopies
of stamped receipt copies of such filing to be delivered to Parent on the
Closing Date.
2.2 EFFECTIVE TIME OF THE MERGER. At the Effective Time of the Merger,
Newco shall be merged with and into Company, in accordance with the Certificate
of Merger, the separate existence of Newco shall cease, and Company shall be the
surviving party in the Merger. Company is sometimes hereinafter referred to as
the Surviving Corporation.
2.3 CERTIFICATE OF INCORPORATION, BYLAWS AND BOARD OF DIRECTORS OF THE
SURVIVING CORPORATION. At the Effective Time:
(i) the Charter Documents of Newco then in effect shall be the
Charter Documents of the Surviving Corporation until changed
as provided by law;
(ii) the Bylaws of Newco then in effect shall be the Bylaws of
the Surviving Corporation until they shall thereafter be
further amended;
(iii) ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the only member of the Board of Directors of
Newco, shall be the only member of the Board of Directors of
the Surviving Corporation after the Effective Time until
his successor shall have been elected and qualified; and
(iv) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chief Executive Officer; ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
President; ▇▇▇
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▇▇▇▇▇, Chief Financial Officer and Secretary;
and ▇▇▇▇ ▇▇▇▇▇▇▇, Vice President of Operations of Newco
immediately prior to the Effective Time shall continue as
the officers of the Surviving Corporation after the
Effective Time in the same capacity or capacities, until
their successors are duly elected and qualified.
2.4 CERTAIN INFORMATION WITH RESPECT TO THE CAPITAL STOCK OF COMPANY,
PARENT AND NEWCO. The respective designations and numbers of outstanding shares
and voting rights of each class of outstanding capital stock of Company, Parent
and Newco as of the date of this Agreement are as follows:
(i) the authorized, issued and outstanding capital stock of
Company is as set forth on Schedule 2.4(i);
(ii) the authorized, issued and outstanding capital stock of
Parent is as set forth in Schedule 2.4(ii); and
(iii) the authorized capital stock of Newco consists of 1,000
shares of common stock, par value $.01, of which 1,000
shares are issued and outstanding and entitled to one vote
per share on all matters submitted to stockholder.
2.5 EFFECT OF MERGER. Company shall be the Surviving Corporation of
the Merger and shall continue in existence under the laws of the State of
Oklahoma. The Merger will have the effects set forth in the OGCA. Without
limiting the generality of the foregoing, at the Effective Time, all the
properties, rights, privileges, powers and franchises of Company and Newco will
vest in the Surviving Corporation, and all debts, liabilities and duties of
Company and Newco shall become the debts, liabilities and duties of the
Surviving Corporation.
3. CONVERSION OF STOCK
The manner of converting the shares of (i) outstanding Company Stock and
(ii) the Newco Stock issued and outstanding immediately prior to the Effective
Time into (x) shares of Parent Stock and (y) shares of common stock of the
Surviving Corporation, shall be as follows:
As of the Effective Time:
(i) all shares of Company Stock issued and outstanding
immediately prior to the Effective Time, by virtue of the
Merger and without any action on the part of the holders
thereof, automatically shall be deemed to represent the
right to receive, in aggregate, (i) - shares of Parent Stock
[representing $275,000] and (ii) $200,000 in cash, all as
more particularly set forth in Section 4.1;
(ii) all shares of Company Stock that are held by Company as
treasury stock
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shall be canceled and retired and no Parent Stock, cash or
other consideration shall be delivered or paid in exchange
therefor; and
(iii) each share of Newco Stock issued and outstanding immediately
prior to the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof,
automatically shall be deemed to represent the right to
receive one fully paid and non-assessable share of common
stock of the Surviving Corporation, which shall constitute
all of the issued and outstanding shares of common stock of
the Surviving Corporation immediately after the Effective
Time.
4. DELIVERY OF MERGER CONSIDERATION
4.1 EFFECTIVE TIME. At the Effective Time, Stockholder shall, upon
surrender of his certificates representing the shares of Company Stock set forth
below, receive the number of shares of Parent Stock and cash set forth opposite
his name below:
Number of Shares Number of Shares
Name of Stockholder of Company Stock of Parent Stock Cash
------------------- ---------------- ---------------- -----
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ 500 [stock representing $200,000
$275,000]
4.2 CERTIFICATES. Stockholder shall present to Parent at the
Closing all certificates representing any and all shares of Company Stock, duly
endorsed in blank by Stockholder, or accompanied by blank stock powers, and with
all necessary transfer tax and other revenue stamps, acquired at Stockholder
expense, affixed and canceled.
4.3 CONTRIBUTION OF BUILDING. On or before three (3) business days
prior to the Closing Date, Stockholder will, and if applicable, will cause
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to, contribute that certain real estate located at ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ to Company by Warranty Deed, subject to any and all
outstanding indebtedness of Stockholder and, if applicable, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, to
▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, related to the real estate.
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5. CLOSING
Prior to the taking of the actions described in clauses (i) and (ii)
below (the "Closing"), the parties to this Agreement shall take all actions
necessary to prepare to (i) effect the Merger (including the filing with the
appropriate state authorities of the Certificate of Merger which shall become
effective at the Effective Time) and (ii) effect the conversion of the shares
and the delivery of the Parent Stock referred to in Sections 3 and 4; provided,
that such actions shall not include the actual completion of the Merger or the
conversion of the shares and the delivery of the Parent Stock referred to in
Sections 3 and 4, each of which actions shall only be taken upon the Closing
Date as herein provided. The Closing shall take place on May 31, 1999, or such
other date as the parties hereto may designate (the "Closing Date"), at the
offices of McAfee & ▇▇▇▇ A Professional Corporation or at such place in Oklahoma
City, Oklahoma, as the parties may mutually agree. On the Closing Date (x) the
Certificate of Merger shall be or shall have been filed with the appropriate
state authorities so that they shall be or, as of 10:00 a.m. Central Standard
Time on the Closing Date, become effective and the Merger shall thereby be
effected and (y) all transactions contemplated by this Agreement, including the
conversion of the shares and delivery of the Parent Stock which the Stockholder
shall be entitled to receive pursuant to the Merger shall occur and be deemed to
be completed.
6. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF COMPANY AND
STOCKHOLDER
Company and Stockholder represent, warrant, covenant and agree
(i) that all of the following representations and warranties in this Section 6
are materially true at the date of this Agreement and, subject to Section 9.7,
shall be materially true at the Closing Date and (ii) that all of the covenants
and agreements in this Section 6 shall be materially complied with or performed
at and as of the Closing Date. For purposes of this Section 6, the term
"Company" shall mean and refer to Company and all of its Subsidiaries, if any.
6.1 DUE ORGANIZATION. Company is a corporation duly organized,
validly existing and in good standing under the laws of the state of its
incorporation, and is duly authorized and qualified to do business and is in
good standing under the laws of each jurisdiction where such qualification is
required except (i) as set forth on Schedule 6.1 or (ii) where the failure to be
so authorized or qualified would not have an adverse effect on the business,
operations, affairs, prospects, properties, assets or condition (financial or
otherwise), of Company taken as a whole (as used herein with respect to Company,
or with respect to any other Person, an "Adverse Effect"). Schedule 6.1 sets
forth the jurisdiction in which Company is incorporated and contains a list of
all such jurisdictions in which Company is authorized or qualified to do
business. True, complete and correct copies of the Charter Documents and
Bylaws, each as amended, of Company are all attached hereto as Schedule 6.1.
The stock records of Company, as heretofore made available to Parent, are
correct and complete. To the knowledge of Company and Stockholder, there are no
minutes in the possession of Company or Stockholder which have not been made
available to Parent, and all of such minutes are correct and complete.
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6.2 AUTHORIZATION. Company has all requisite corporate power and
authority to enter into this Agreement and to perform its obligations hereunder.
The execution and delivery by Company of this Agreement and its consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action of Company. This Agreement has been duly executed and
delivered by Company, and approved by Stockholder, and is a valid and binding
obligation of Company, enforceable against Company in accordance with its terms.
6.3 CAPITAL STOCK OF THE COMPANY. The authorized capital stock of
Company is as set forth in Schedule 2.4(i). All of the issued and outstanding
shares of the capital stock of Company are owned of record by Stockholder in the
amounts set forth in Section 4.1 and further, except as set forth on Schedule
6.3, are owned free and clear of all mortgages, liens, security interests,
pledges, voting trusts, restrictions, encumbrances and claims of every kind
(collectively, the "Liens"). All of the issued and outstanding shares of the
capital stock of Company (i) have been duly authorized and validly issued and
(ii) are fully paid and nonassessable. Further, none of such shares was issued
in violation of the preemptive rights of any past or present stockholder.
6.4 TRANSACTIONS IN CAPITAL STOCK. Except as set forth on Schedule
6.4, Company has not acquired any Company Stock since January 1, 1995. Except
as set forth on Schedule 6.4, (i) no option, warrant, call, conversion right or
commitment of any kind exists which obligates Company to issue any of its
authorized but unissued capital stock; and (ii) Company has no obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any of its
equity securities or any interests therein or to pay any dividend or make any
distribution in respect thereof. Schedule 6.4 also includes complete and
accurate copies of all stock option or stock purchase plans, including a list of
all outstanding options, warrants or other rights to acquire shares of Company
Stock.
6.5 SUBSIDIARIES. Except as set forth in Schedule 6.5, (i) Company
has no Subsidiaries, (ii) Company does not presently own, of record or
beneficially, or control, directly or indirectly, any capital stock, securities
convertible into capital stock or any other equity interest in any Person, and
(iii) Company is not directly or indirectly, a participant in any joint venture,
partnership or other non-corporate entity.
6.6 PREDECESSOR STATUS; ETC. Set forth in Schedule 6.6 is a
listing of all names of all predecessor companies of Company, including the
names of any entities acquired by Company (by stock purchase, merger or
otherwise) or owned by Company or from whom the Company previously acquired
assets in excess of $25,000, in any case, since January 1, 1995.
6.7 FINANCIAL STATEMENTS. Attached hereto as Schedule 6.7 are
copies of the following financial statements of Company (the "Company Financial
Statements"): Company's audited Balance Sheet as of December 31, 1997 and its
audited Balance Sheet as of December 31, 1998 ("December Balance Sheet"), and
audited Statements of Income, Retained Earnings and Cash Flows and any related
notes thereto for the years ended December 31, 1997 and 1998 (December 31, 1998
being hereinafter referred to as the "Balance Sheet Date"). The audited Company
Financial Statements have been prepared in accordance with generally accepted
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accounting principles applied on a consistent basis throughout the periods
indicated (except as noted thereon or on Schedule 6.7). Except as set forth on
Schedule 6.7, the Balance Sheets referred to in this Section 6.7 present fairly
the financial position of Company as of the dates indicated thereon, and the
Statements of Income, Retained Earnings and Cash Flows referred to in this
Section 6.7 present fairly the results of operations for the periods indicated
thereon in accordance with generally accepted accounting principles. Company
Financial Statements at and for the years ended December 31, 1997 and 1998 have
been examined and reported on by Deloitte & Touche LLP.
6.8 LIABILITIES AND OBLIGATIONS. Company has delivered to Parent a
list (which is set forth on Schedule 6.8) as of the Balance Sheet Date of
(i) all liabilities of Company of any kind, character or description, whether
accrued, absolute, secured or unsecured, contingent or otherwise, that are not
reflected on the December Balance Sheet or otherwise reflected in the Company
Financial Statements at the Balance Sheet Date, and (ii) all loan agreements,
indemnity or guaranty agreements, bonds, mortgages, liens, pledges or other
security agreements. Except as set forth on Schedule 6.8, since the Balance
Sheet Date Company has not incurred any liabilities of any kind, character and
description, whether accrued, absolute, secured or unsecured, contingent or
otherwise, other than liabilities incurred in the ordinary course of business.
Company has also disclosed to Parent on Schedule 6.8, in the case of those
contingent liabilities related to pending or threatened litigation or other
liabilities which are not fixed or otherwise accrued or reserved, the following
information:
(i) a summary description of the liability together with the
following:
(x) copies of all relevant documentation relating thereto;
(y) amounts claimed and any other action or relief sought; and
(z) name of claimant and all other parties to the claim, suit
or proceeding;
(ii) the name of each court or agency before which such claim,
suit or proceeding is pending; and
(iii) the date such claim, suit or proceeding was instituted.
6.9 ACCOUNTS AND NOTES RECEIVABLE. Company has delivered to Parent
an accurate list (which is set forth on Schedule 6.9) of the accounts and notes
receivable of Company, as of the most practicable date, including any such
amounts which are not reflected in the December Balance Sheet, and including
receivables from and advances to employees and Stockholder. Company shall also
provide Parent an aging of all accounts and notes receivable showing amounts due
in 30 day aging categories, and such list and such aging report (the "A/R Aging
Report") as of the most practicable date. Except to the extent reflected on
Schedule 6.9 or as disclosed by Company to Parent in a writing accompanying the
A/R Aging Report, such accounts, notes and other receivables are collectible in
the amounts shown on Schedule 6.9, and shall be collectible in the
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amounts shown on the A/R Aging Report, net of reserves reflected in the
December Balance Sheet and as of the date of the A/R Aging Report,
respectively.
6.10 PERMITS AND INTANGIBLES. Company holds all licenses,
franchises, permits and other governmental authorizations the absence of any of
which could have an Adverse Effect on its business, and Company has delivered to
Parent an accurate list and summary description (which is set forth on Schedule
6.10) of all such licenses, franchises, permits and other governmental
authorizations, including titles, certificates, trademarks, trade names,
patents, patent applications and copyrights owned or held by Company (including
interests in software or other technology systems, programs and intellectual
property) (it being understood and agreed that a list of all environmental
permits and other environmental approvals is set forth on Schedule 6.11). To the
knowledge of Company, the licenses, franchises, permits and other governmental
authorizations listed on Schedules 6.10 and 6.11 are valid in all respects, and
Company has not received any notice that any governmental authority intends to
cancel, terminate or not renew any such license, franchise, permit or other
governmental authorization. Company has conducted and is conducting its business
in compliance with the requirements, standards, criteria and conditions set
forth in the licenses, franchises, permits and other governmental authorizations
listed on Schedules 6.10 and 6.11 and is not in violation of any of the
foregoing except where such non-compliance or violation would not have an
Adverse Effect on Company. Except as specifically provided in Schedule 6.10, the
transactions contemplated by this Agreement will not result in a default under
or a breach or violation of, or adversely affect the rights and benefits
afforded to Company (and to the Surviving Corporation after the Effective Time
of the Merger) by, any such license, franchise, permit or government
authorization.
6.11 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 6.11,
(i) Company has substantially complied with and is in compliance with all
Federal, state, local and foreign statutes (civil and criminal), laws,
ordinances, regulations, rules, notices, permits, judgments, orders and decrees
applicable to it or any of its properties, assets, operations and businesses
relating to environmental protection (collectively "Environmental Laws")
including, without limitation, Environmental Laws relating to air, water, land
and the generation, storage, use, handling, transportation, treatment or
disposal of Hazardous Wastes and Hazardous Substances including petroleum and
petroleum products (as such terms are defined in any applicable Environmental
Law); (ii) Company has obtained and substantially adhered to all necessary
permits and other approvals necessary to treat, transport, store, dispose of and
otherwise handle Hazardous Wastes and Hazardous Substances, a list of all of
which permits and approvals is set forth on Schedule 6.11, and has reported to
the appropriate authorities, to the extent required by all Environmental Laws,
all past and present sites owned and operated by Company where Hazardous Wastes
or Hazardous Substances have been treated, stored, disposed of or otherwise
handled; (iii) there have been no releases or threats of releases (as defined in
Environmental Laws) at, from, in or on any property owned or operated by Company
except as permitted by Environmental Laws; (iv) to the knowledge of Company, no
on-site or off-site location to which Company has transported or disposed of
Hazardous Wastes and Hazardous Substances or arranged for the transportation of
Hazardous Wastes and Hazardous Substances, which site is the subject of any
Federal, state, local or foreign enforcement action or any other investigation
which could lead to any claim against
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Company, Parent or Newco for any clean-up cost, remedial work, damage to
natural resources, property damage or personal injury, including, but not
limited to, any claim under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended; and (v) Company has no
contingent liability in connection with any release of any Hazardous Waste or
Hazardous Substance into the environment.
6.12 PERSONAL PROPERTY. Company has delivered to Parent an accurate
list (which is set forth on Schedule 6.12) of (i) all personal property included
(or that will be included) in "depreciable plant, property and equipment" on the
balance sheet of Company, (ii) all other personal property owned by Company with
a value in excess of $5,000 (x) as of the Balance Sheet Date and (y) acquired
since the Balance Sheet Date and (iii) all written Leases in respect of personal
property, including, in the case of each of (i), (ii) and (iii), true, complete
and correct copies of all such Leases. Except as set forth on Schedule 6.12,
(a) all personal property used by Company in its business is either owned by
Company or leased by Company pursuant to a Lease included on Schedule 6.12,
(b) all of the personal property listed on Schedule 6.12 is in good working
order and condition, ordinary wear and tear excepted and (c) all leases and
agreements included on Schedule 6.12 are in full force and effect in all
respects and to the knowledge of Company constitute valid and binding agreements
of the parties (and their successors) thereto in accordance with their
respective terms.
6.13 SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS.
Company has delivered to Parent an accurate list (which is set forth on Schedule
6.13) of all significant customers, or persons or entities that are sources of a
significant number of customers, it being understood and agreed that a
"significant customer," for purposes of this Section 6.13, means a customer (or
person or entity) (i) representing 5% or more of Company's annual revenues as of
the Balance Sheet Date or (ii) reasonably expected to represent 5% or more of
Company's revenues during the twelve-month period ending December 31, 1998.
Except to the extent set forth on Schedule 6.13, none of Company's significant
customers (or persons or entities that are sources of a significant number of
customers) have canceled or substantially reduced or, to the knowledge of
Company, are currently attempting or threatening to cancel a contract or
substantially reduce utilization of the services provided by Company.
Company has listed on Schedule 6.13 all material contracts,
commitments and similar agreements to which the Company is a party or by which
it or any of its properties are bound (including, but not limited to, contracts
with significant customers, joint venture or partnership agreements, contracts
with any labor organizations, strategic alliances and options to purchase land),
other than agreements listed on Schedule 6.8, 6.12 or 6.14, (x) in existence as
of the Balance Sheet Date and (y) entered into since the Balance Sheet Date, and
in each case has delivered true, complete and correct copies of such agreements
to Parent. Company has complied with all commitments and obligations pertaining
to it, and is not in default under any contract or agreement listed on Schedule
6.13 and no notice of default under any such contract or agreement has been
received. Company has also indicated on Schedule 6.13 a summary description of
all plans or projects involving the acquisition of any personal property,
business or assets requiring, in any event, the payment of more than $5,000 by
Company.
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6.14 REAL PROPERTY. Schedule 6.14 includes a list of all real
property owned or leased by Company (i) as of the Balance Sheet Date and
(ii) acquired since the Balance Sheet Date, and all other real property, if any,
used by Company in the conduct of its business. Company has good and insurable
title to the real property owned by it, including those reflected on Schedule
6.14, subject to no Liens except for:
(w) Liens reflected on Schedules 6.8 or 6.13 as securing
specified liabilities (with respect to which no default
exists);
(x) Liens for current taxes not yet payable and assessments
not in default;
(y) easements for utilities serving the property only; and
(z) easements, covenants and restrictions and other exceptions
to title shown of record in the office of the County
Clerks in which the properties, assets and leasehold
estates are located which do not adversely affect in any
respect the current use of the property.
Schedule 6.14 contains, without limitation, (1) true, complete and correct
copies of all title reports and title insurance policies currently in possession
of Company with respect to real property owned by Company, and (2) true,
complete and correct copies of all Leases and agreements in respect of such real
property leased by Company (which copies are attached to Schedule 6.14).
Except as set forth on Schedule 6.14, all of such Leases included on
Schedule 6.14 are in full force and effect in all respects and to the knowledge
of Company constitute valid and binding agreements of the parties (and their
successors) thereto in accordance with their respective terms.
6.15 INSURANCE. Company has delivered to Parent, as set forth on
and attached to Schedule 6.15, (i) an accurate list as of the Balance Sheet Date
of all insurance policies carried by Company, (ii) an accurate list of all
insurance loss runs on workers compensation claims received for the past three
policy years and (iii) true, complete and correct copies of all insurance
policies currently in effect. Such insurance policies evidence all of the
insurance that Company is required to carry pursuant to all of its contracts and
other agreements and pursuant to all applicable laws or that management of
Company otherwise believes is prudent and appropriate to insure against the
risks inherent in Company's business in accordance with industry practice. All
of such insurance policies are currently in full force and effect in all
respects and shall remain in full force and effect in all respects through the
Closing Date. Except as otherwise specified in Schedule 6.15, no insurance
carried by Company has been canceled by the insurer and the Company has never
been denied coverage.
6.16 COMPENSATION; ORGANIZED LABOR MATTERS. Company has delivered
to Parent an accurate list (which is set forth on Schedule 6.16) showing all
officers, directors and other key employees of Company and the rate of
compensation (and the portions thereof attributable to
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salary, bonus and other compensation, respectively) of each of such persons
as of (i) the Balance Sheet Date and (ii) the date of this Agreement. Since
the Balance Sheet Date, there have been no increases in the compensation
payable or any special bonuses to any officer, director, key employee or
other employee, except ordinary salary increases implemented on a basis
consistent with past practices.
Except as set forth on Schedule 6.16, (w) Company is not bound by or
subject to (and none of its respective assets or properties is bound by or
subject to) any arrangement with any labor union, (x) no employees of Company
are represented by any labor union or covered by any collective bargaining
agreement, (y) to the knowledge of Company, no campaign to establish such
representation is in progress and (z) there is no pending or, to the best of
Company's knowledge, threatened labor dispute involving Company and any group of
its employees nor has Company experienced any labor interruption over the past
three years.
6.17 EMPLOYEE PLANS. The Stockholder has delivered to Parent an
accurate list (which is set forth on Schedule 6.17) showing all employee benefit
plans of Company, including all employment agreements and other agreements or
arrangements containing "golden parachute" or other similar provisions, and
deferred compensation agreements, together with true, complete and correct
copies of such plans, agreements and any trusts related thereto, and
classifications of employees covered thereby as of the Balance Sheet Date.
Except for the employee benefit plans, if any, described on Schedule 6.17, the
Company does not sponsor, maintain or contribute to any plan program, fund or
arrangement that constitutes an "employee pension benefit plan," and Company
does not have any obligation to contribute to or accrue or pay any benefits
under any deferred compensation or retirement funding arrangement on behalf of
any employee or employees (such as, for example, and without limitation, any
individual retirement account or annuity, any "excess benefit plan" (within the
meaning of Section 3(36) of the Employee Retirement Income Security Act of 1974,
as amended "ERISA") or any non-qualified deferred compensation arrangement).
For the purposes of this Agreement, the term "employee pension benefit plan"
shall have the same meaning as is given that term in Section 3(2) of ERISA.
Company has not sponsored, maintained or contributed to any employee pension
benefit plan other than the plans set forth on Schedule 6.17, nor is the Company
required to contribute to any retirement plan pursuant to the provisions of any
collective bargaining agreement establishing the terms and conditions or
employment of any of Company's employees.
Company is not now, nor as a result of its past activities can it
reasonably be expected to become, liable to the Pension Benefit Guaranty
Corporation (other than for premium payments) or to any multiemployer employee
pension benefit plan under the provisions of Title IV of ERISA.
All employee benefit plans listed on Schedule 6.17 and the
administration thereof are in substantial compliance with their terms and all
applicable provisions of ERISA and the regulations issued thereunder, as well as
with all other applicable Federal, state and local statutes, ordinances and
regulations.
All accrued contribution obligations of Company or any Subsidiary
with respect to any plan
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listed on Schedule 6.17 have either been fulfilled in their entirety or are
fully reflected on the balance sheet of Company as of the Balance Sheet Date.
6.18 COMPLIANCE WITH ERISA. All employee benefit plans listed on
Schedule 6.17 that are intended to qualify (the "Qualified Plans") under Section
401(a) of the Code are, and have been so qualified and have been determined by
the Internal Revenue Service to be so qualified, and copies of such
determination letters are included as part of Schedule 6.17. Except as
disclosed on Schedule 6.17, all reports and other documents required to be filed
with any governmental agency or distributed to plan participants or
beneficiaries (including, but not limited to, actuarial reports, audits or
Returns) have been timely filed or distributed, and copies thereof are included
as part of Schedule 6.17. Neither Stockholder, any such plan listed in Schedule
6.17, nor Company has engaged in any transaction prohibited under the provisions
of Section 4975 of the Code or Section 406 of ERISA. No employee benefit plan
listed on Schedule 6.17 has incurred an accumulated funding deficiency, as
defined in Section 412(a) of the Code and Section 302(1) of ERISA; and Company
has not incurred (i) any liability for excise tax or penalty payable to the
Internal Revenue Service or (ii) any liability to the Pension Benefit Guaranty
Corporation (other than for premium payments). In addition:
(v) there have been no terminations or discontinuance of
contributions to any Qualified Plan intended to qualify
under Section 401(a) of the Code without notice to and
approval by the Internal Revenue Service;
(w) no plan listed on Schedule 6.17 that is subject to the
provisions of Title IV of ERISA has been terminated;
(x) there have been no "reportable events" (as that phrase is
defined in Section 4043 of ERISA) with respect to employee
benefit plans listed in Schedule 6.17;
(y) Company has not incurred liability under Section 4062 of
ERISA; and
(z) except as set forth in Schedule 6.17, no circumstances
exist pursuant to which Company could reasonably be
expected to have any direct or indirect liability
whatsoever (including, but not limited to, any liability
to any multiemployer plan or the Pension Benefit Guaranty
Corporation under Title IV of ERISA or to the Internal
Revenue Service for any excise tax or penalty, or being
subject to any statutory Lien to secure payment of any
such liability) with respect to any plan now or heretofore
maintained or contributed to by any entity other than
Company that is, or at any time was, a member of a
"controlled group" (as defined in Section 412(n)(6)(B) of
the Code) that includes Company ("Controlled Group").
The transactions contemplated by this Agreement together with any amounts paid
or payable by Company or any member of the Controlled Group have not resulted in
and will not result in
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payments to "disqualified individuals" (as defined in Section 280G(c) of the
Code) of Company or any member of the Controlled Group which, individually or
in the aggregate will constitute "excess parachute payments" (as defined in
Section 280G(b) of the Code) resulting in the imposition of the excise tax
under Section 4999 of the Code or the disallowance of deductions under
Section 280G of the Code.
6.19 CONFORMITY WITH LAW; LITIGATION. Except to the extent set
forth on Schedule 6.19 or 6.11, Company is not in violation of any law or
regulation or any order of any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over Company which would have an Adverse Effect; and except
to the extent set forth on Schedule 6.8 or 6.11, there are no claims, actions,
suits or proceedings, commenced or, to the knowledge of Company, threatened,
against or affecting Company, at law or in equity, or before or by any Federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality having jurisdiction over Company and no notice of any
claim, action, suit or proceeding, whether pending or threatened, has been
received by Company or Stockholder. Company has conducted and is conducting its
business in substantial compliance with the requirements, standards, criteria
and conditions set forth in applicable Federal, state and local statutes,
ordinances, permits, licenses, orders, approvals, variances, rules and
regulations, including all such permits, licenses, orders and other governmental
approvals set forth on Schedules 6.10 and 6.11, and is not in violation of any
of the foregoing which might have an Adverse Effect.
6.20 TAX MATTERS.
(i) Company is currently taxed under Subchapter C of the Code,
and Company has filed all Tax Returns that it was required
to file. All such Tax Returns filed by Company were
correct and complete in all respects. All Taxes owed by
Company (whether or not shown on any Tax Return) have been
paid or reserved for on its books. Except as set forth on
Schedule 6.20, Company is not currently the beneficiary of
any extension of time within which to file any Tax Return.
Since January 1, 1995, no claim with respect to Company
has been made by an authority in a jurisdiction where
Company does not file Tax Returns that it is or may be
subject to taxation by that jurisdiction. There is no
Lien affecting any of Company's assets that arose in
connection with any failure or alleged failure to pay any
Tax.
(ii) Company has withheld and paid all Taxes required to have
been withheld and paid in connection with amounts paid or
owing to any employee, independent contractor, creditor,
shareholder or other party.
(iii) Except as set forth in Schedule 6.8, Company does not
expect any authority to assess any amount of additional
Taxes for any period for which Tax Returns have been
filed. There is no dispute or claim concerning any Tax
liability of Company either claimed or raised by any
authority in writing or
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as to which Company has knowledge based upon direct
inquiry by any agent of such authority. Schedule 6.20(iii)
lists all Tax Returns relating to income Tax of Company
for taxable periods ended on or after January 1, 1994,
indicates those Returns of which Company is aware that
have been audited and indicates those Returns that
currently are the subject of audit. Company has provided
Parent access to correct and complete copies of all Tax
Returns, examination reports and statements of
deficiencies assessed against or agreed to by Company for
any taxable period ended on or after January 1, 1994.
(iv) Except as set forth on Schedule 6.20(iv), Company has not
waived any statute of limitations in respect of Taxes or
agreed to any extension of time with respect to a Tax
assessment or deficiency.
(v) Company has not filed a consent under Section 341(f) of
the Code concerning collapsible corporations. Company has
not made any payments, is not obligated to make any
payments and is not a party to any agreement that under
certain circumstances could obligate it to make any
payments that will not be fully deductible under Section
280G of the Code.
(vi) Company has not received a ruling from any taxing
authority or entered into any agreement regarding Taxes
with any taxing authority that would, individually or in
the aggregate, apply to the Surviving Corporation after
the Closing Date.
6.21 NO VIOLATIONS. Company is not in violation of its Charter
Documents. Neither Company nor, to the knowledge of the Company, any other party
thereto, is in default under any (i) Lease, instrument, agreement, license, or
permit set forth on Schedule 6.10, 6.11, 6.12, 6.13 or 6.14, or (ii) any other
agreement to which it is a party or by which its properties are bound
(collectively, the "Documents"); and, except as set forth in Schedule 6.21,
(i) the rights and benefits of Company under the Documents will not be adversely
affected by the transactions contemplated hereby and (ii) the execution of this
Agreement and the performance of the obligations hereunder and the consummation
of the transactions contemplated hereby will not result in any violation or
breach or constitute a default under, any of the terms or provisions of the
Documents or the Charter Documents. Except as set forth on Schedule 6.21, none
of the Documents requires notice to, or the consent or approval of, any
governmental agency or other third party with respect to any of the transactions
contemplated hereby in order to remain in full force and effect in all respects,
and consummation of the transactions contemplated hereby will not give rise to
any right to termination, cancellation or acceleration or loss of any right or
benefit. Except as set forth on Schedule 6.21, to the knowledge of Company none
of the Documents prohibits the use or publication by Company, Parent or Newco of
the name of any other party to such Document, and none of the Documents
prohibits or restricts Company from freely providing services to any other
customer or potential customer of Company, Parent, Newco or any other Founding
Company.
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6.22 ABSENCE OF CHANGES. Since the Balance Sheet Date, except as
set forth on Schedule 6.22, there has not been:
(i) any adverse change in the financial condition, assets,
liabilities (contingent or otherwise), income or business
of Company taken as a whole;
(ii) any damage, destruction or loss (whether or not covered by
insurance) adversely affecting the properties or business
of Company;
(iii) any change in the authorized capital of Company or its
outstanding securities or any change in its ownership
interests or any grant of any options, warrants, calls,
conversion rights or commitments;
(iv) any declaration or payment of any dividend or distribution
in respect of the capital stock or any direct or indirect
redemption, purchase or other acquisition of any of the
capital stock of Company;
(v) any increase in the compensation, bonus, sales commissions
or fee arrangement payable or to become payable by Company
to any of its officers, directors, stockholders,
employees, consultants or agents, except for ordinary and
customary bonuses and salary increases for employees in
accordance with past practice;
(vi) any work interruptions, labor grievances or labor claims
filed, or any other similar labor event or condition of
any character, adversely affecting the business of
Company;
(vii) any sale or transfer, or any agreement to sell or
transfer, any assets, property or rights of Company to any
person, including, without limitation, Stockholder and his
Affiliates outside the ordinary course of business of
Company;
(viii) any cancellation, or agreement to cancel, any indebtedness
or other obligation owing to Company, including without
limitation any indebtedness or obligation of Stockholder
or any Affiliate thereof outside the ordinary course of
business of Company;
(ix) any plan, agreement or arrangement granting any
preferential right to purchase or acquire any interest in
any of the assets, property or rights of Company or
requiring consent of any party to the transfer and
assignment of any such assets, property or rights;
(x) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any property, right or
asset outside of the ordinary
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course of Company's business;
(xi) any waiver of any rights or claims of Company;
(xii) any breach, amendment or termination of any contract,
agreement, license, permit or other right to which Company
is a party;
(xiii) any transaction by Company outside the ordinary course of
its business;
(xiv) any cancellation or termination of a contract with a
customer or client prior to the scheduled termination
date; or
(xv) any other distribution of property or assets by Company
outside the ordinary course of Company's business.
6.23 DEPOSIT ACCOUNTS; POWERS OF ATTORNEY. Company has delivered to
Parent an accurate list (which is set forth on Schedule 6.23) as of the date of
the Agreement setting forth:
(i) the name of each financial institution in which Company
has accounts or safe deposit boxes;
(ii) the names in which the accounts or boxes are held;
(iii) the type of account and account number; and
(iv) the name of each person authorized to draw thereon or have
access thereto.
Schedule 6.23 also sets forth the name of each person, corporation, firm or
other entity holding a general or special power of attorney from Company and a
description of the terms of such power.
6.24 RELATIONS WITH GOVERNMENTS. Except for political contributions
made in a lawful manner which, in the aggregate, do not exceed $5,000 per year
for each year in which Stockholder has been a stockholder of Company, Company
has not made, offered or agreed to offer anything of value to any governmental
official, political party or candidate for government office nor has it
otherwise taken any action which would cause Company to be in violation of the
Foreign Corrupt Practices Act of 1977, as amended, or any law of similar effect.
If political contributions made by Company have exceeded $5,000 per year for
each year in which Stockholder has been a stockholder of Company, each
contribution shall be described on Schedule 6.24.
6.25 DISCLOSURE. This Agreement, including the Schedules and
Annexes hereto, together with all other documents and information made available
to Parent and its representatives in writing pursuant hereto, present fairly the
business and operations of Company for the time periods with respect to which
such information was requested. Company's rights under the documents delivered
pursuant hereto would not be adversely affected by, and no statement made herein
would be
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rendered untrue in any respect by, any other document to which Company
is a party, or to which its properties are subject, or by any other fact or
circumstance regarding Company (which fact or circumstance was, or should
reasonably, after due inquiry, have been known to Company) that is not disclosed
pursuant hereto or thereto.
6.26 PROHIBITED ACTIVITIES. Except as set forth on Schedule 6.26,
Company has not, between the Balance Sheet Date and the date of this Agreement,
taken any of the actions set forth in Section 9.3 ("Prohibited Activities").
7. ADDITIONAL REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF
STOCKHOLDER
Stockholder further represents, warrants, covenants and agrees
(i) that the representations and warranties set forth below are true as of the
date of this Agreement and, subject to Section 9.7, shall be true at the Closing
Date, (ii) that all of the covenants and agreements in this Section 7 shall be
complied with or performed at and as of the Closing Date and (iii) that by
executing this Agreement Stockholder shall be deemed to have approved the terms
of the Merger as required by the OGCA.
7.1 AUTHORITY. Stockholder has the full legal right, power and
authority to enter into this Agreement. This Agreement has been executed and
delivered by Stockholder and constitutes a legal, valid and binding obligation
of such Stockholder enforceable in accordance with its terms.
7.2 PREEMPTIVE RIGHTS. Stockholder does not have, or hereby
waives, any preemptive or other right to acquire shares of Company Stock or
Parent Stock that such Stockholder has or may have had, other than rights of
Stockholder to acquire Parent Stock pursuant to (i) this Agreement or (ii) any
option granted by Parent.
8. REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS OF PARENT AND
NEWCO
Parent and Newco, jointly and severally, represent, warrant,
covenant and agree (i) that all of the following representations and warranties
in this Section 8 are materially true at the date of this Agreement and, subject
to Section 9.7, shall be materially true at the Closing Date and (ii) that all
of the covenants and agreements in this Section 8 shall be materially complied
with or performed at and as of the Closing Date.
8.1 DUE ORGANIZATION. Parent and Newco are each corporations duly
organized, validly existing and in good standing under the laws of the State of
Oklahoma, and are duly authorized and qualified to do business under all
applicable laws, regulations, ordinances and orders of public authorities to
carry on their respective business in the places and in the manner as now
conducted, except where the failure to be so authorized or qualified would not
have an Adverse Effect. True, complete and correct copies of the Charter
Documents and Bylaws, each as amended, of Parent and Newco (the "Parent Charter
Documents") are all attached hereto as Schedule 8.1.
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8.2 AUTHORIZATION. Parent and Newco each has all requisite
corporate power and authority to enter into this Agreement and to perform its
obligations hereunder. The execution and delivery of this Agreement by Parent
and Newco and their consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action of Parent and Newco.
This Agreement has been duly executed and delivered by Parent and Newco and is a
valid and binding obligation of Parent and Newco, enforceable against each of
them in accordance with its terms.
8.3 CAPITAL STOCK. The authorized capital stock of Parent and
Newco is as set forth in Schedule 2.4(ii) and Section 2.4(iii), respectively.
All of the issued and outstanding shares of the capital stock of Parent and
Newco (i) have been duly authorized and validly issued, (ii) are fully paid and
nonassessable, (iii) are owned of record and beneficially by the persons set
forth on Schedule 2.4(ii) and Parent, respectively, and (iv) were offered,
issued, sold and delivered by Parent and Newco in compliance with all applicable
state and Federal laws concerning the offer, issuance, sale and delivery of
securities. Further, none of such shares was issued in violation of the
preemptive rights of any past or present stockholder of Parent or Newco.
8.4 TRANSACTIONS IN CAPITAL STOCK. Except as set forth on Schedule
2.4(ii), (i) no option, warrant, call, conversion right or commitment of any
kind exists which obligates Parent or Newco to issue any of its authorized but
unissued capital stock and (ii) neither Parent nor Newco has any obligation
(contingent or otherwise) to purchase, redeem or otherwise acquire any of its
equity securities or any interests therein or to pay any dividend or make any
distribution in respect thereof. Schedule 2.4(ii) also includes complete and
accurate copies of all stock option or stock purchase plans, including a list,
accurate as of the date hereof, of all outstanding options, warrants or other
rights to acquire shares of capital stock of Parent.
8.5 SUBSIDIARIES. Newco has no Subsidiaries. Parent has no
Subsidiaries except for Newco and each of the other companies identified on
Schedule 8.5. Except as set forth in the preceding sentence, neither Parent
nor Newco presently owns, of record or beneficially, or controls, directly or
indirectly, any capital stock, securities convertible into capital stock or
any other equity interest in a Person nor is Parent or Newco, directly or
indirectly, a participant in any joint venture, partnership or other
non-corporation entity.
8.6 LIABILITIES AND OBLIGATIONS. Parent and Newco have no
liabilities, contingent or otherwise, except as set forth in or contemplated by
this Agreement or agreements similar to this Agreement with the Founding
Companies and except for fees incurred in connection with the transactions
contemplated hereby and thereby.
8.7 CONFORMITY WITH LAW; LITIGATION. Neither Parent nor Newco is
in violation of any law or regulation or any order of any court or Federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality having jurisdiction over either of them which would
have a Adverse Effect; and there are no claims, actions, suits or proceedings,
pending or, to the knowledge of Parent or Newco, threatened, against or
affecting Parent or Newco,
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at law or in equity, or before or by any Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over either of them and no notice of any claim, action,
suit or proceeding, whether pending or threatened, has been received. Parent
and Newco have no operations.
8.8 NO VIOLATIONS. Neither Parent nor Newco is in violation of any
Parent Charter Document. None of Parent, Newco, or, to the knowledge of Parent
and Newco, any other party thereto, is in default under any lease, instrument,
agreement, license, or permit to which Parent or Newco is a party, or by which
Parent or Newco, or any of their respective properties, are bound (collectively,
the "Parent Documents"); and (i) the rights and benefits of Parent and Newco
under the Parent Documents will not be adversely affected by the transactions
contemplated hereby and (ii) the execution of this Agreement and the performance
of the obligations hereunder and the consummation of the transactions
contemplated hereby will not result in any violation or breach or constitute a
default under, any of the terms or provisions of the Parent Documents or the
Parent Charter Documents. Except as set forth on Schedule 8.8, none of the
Parent Documents requires notice to, or the consent or approval of, any
governmental agency or other third party with respect to any of the transactions
contemplated hereby in order to remain in full force and effect, and
consummation of the transactions contemplated hereby will not give rise to any
right to termination, cancellation or acceleration or loss of any right or
benefit.
8.9 PARENT SECURITIES. The shares of Parent Stock deliverable to
the Stockholder pursuant to this Agreement will have been duly authorized prior
to the Closing, and upon consummation of the Merger in accordance with this
Agreement, will be validly issued, fully paid and nonassessable.
8.10 BUSINESS; REAL PROPERTY; AGREEMENTS. Parent was formed in
September 1998. Neither Parent nor Newco has conducted any business since the
date of its inception, except raising capital and in connection with this
Agreement and similar agreements with the Founding Companies. Except as
disclosed on Schedule 8.10, neither Parent nor Newco owns or has at any time
owned any real property or any personal property or is a party to any other
agreement.
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9. OTHER COVENANTS PRIOR TO CLOSING
9.1 ACCESS AND COOPERATION; DUE DILIGENCE; AUDITS.
(i) Between the date of this Agreement and the Closing Date,
Company will afford to the officers and authorized
representatives of Parent access to all of Company's
sites, properties, books and records and will furnish
Parent with such additional financial and operating data
and other information as to the business and properties of
Company as Parent may from time to time reasonably
request. Company will cooperate with Parent, its
representatives, auditors and counsel in the preparation
of any documents or other material that may be required in
connection with any documents or materials required by
this Agreement. Parent and Newco will treat all
information obtained in connection with the negotiation
and performance of this Agreement as confidential in
accordance with the provisions of Section 16.
(ii) Between the date of this Agreement and the Closing, Parent
will afford to the officers and authorized representatives
of Company and Stockholder access to all of the sites,
properties, books and records of Parent, Newco and the
other companies listed on Schedule 9.1(ii) ("Founding
Companies") and will furnish Company and Stockholder with
such additional financial and operating data and other
information as to the business and properties of Parent,
Newco and the Founding Companies as Company and
Stockholder may from time to time reasonably request.
Parent and Newco will cooperate with Company and
Stockholder representatives, auditors and counsel in the
preparation of any documents or other material which may
be required in connection with any documents or materials
required by this Agreement. Company and Stockholder will
cause all information obtained in connection with the
negotiation and performance of this Agreement to be
treated as confidential in accordance with the provisions
of Section 16.
9.2 CONDUCT OF BUSINESS PENDING CLOSING. Unless otherwise approved
in writing by Parent, between the date of this Agreement and the Closing Date,
Company will:
(i) carry on its business in substantially the same manner as
it has heretofore and not introduce any material new
method of management, operation or accounting;
(ii) maintain its properties and facilities, including those
held under lease, in as good working order and condition
as at present, ordinary wear and tear excepted;
(iii) perform in all material respects all of its obligations
under agreements relating to or affecting its respective
assets, properties or rights;
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(iv) keep in full force and effect in all material respects the
present insurance policies or other comparable insurance
coverage;
(v) use its reasonable best efforts to maintain and preserve
its business organization intact, retain its respective
present key employees and maintain its respective
relationships with suppliers, customers and others having
business relations with it;
(vi) maintain material compliance with all material permits,
laws, rules and regulations, consent orders, and all other
orders of applicable courts, regulatory agencies and
similar governmental authorities;
(vii) maintain present debt instruments and Leases and not enter
into new or amended debt instruments or Leases; and
(viii) maintain or reduce present salaries and commission levels
for all officers, directors, employees and agents except
for ordinary and customary bonus and salary increases for
employees in accordance with past practices.
9.3 PROHIBITED ACTIVITIES BY THE COMPANY. Between the date of this
Agreement and the Closing Date, Company will not, without prior written consent
of Parent:
(i) make any change in its Charter Documents or Bylaws;
(ii) issue any securities, options, warrants, calls, conversion
rights or commitments relating to its securities of any
kind other than in connection with the exercise of options
or warrants listed in Schedule 6.4;
(iii) declare or pay any dividend, or make any distribution in
respect of Company Stock whether now or hereafter
outstanding, or purchase, redeem or otherwise acquire or
retire for value any shares of Company Stock;
(iv) enter into any contract or commitment or incur or agree to
incur any liability or make any capital expenditures,
except if it is in the normal course of business
(consistent with past practice), in connection with the
transactions contemplated by this Agreement, or involves
an amount not in excess of $5,000;
(v) create, assume or permit to exist any Lien upon any asset
or property whether now owned or hereafter acquired,
except (x) with respect to purchase money Liens incurred
in connection with the acquisition of equipment with an
aggregate cost not in excess of $5,000 as necessary or
desirable for the conduct of its business, (y) (1) Liens
for Taxes either not
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yet due or being contested in good faith and by
appropriate proceedings (and for which contested Taxes
adequate reserves have been established and are being
maintained) or (2) materialmen's, mechanic's, worker's,
repairmen's, employee's or other like Liens arising in the
ordinary course of business, or (3) Liens set forth on
Schedule 6.8 or 6.13;
(vi) sell, assign, lease or otherwise transfer or dispose of
any property or equipment except in the normal course of
business;
(vii) negotiate for the acquisition of any business or the
start-up of any new business;
(viii) merge or consolidate or agree to merge or consolidate with
or into any other corporation;
(ix) waive any material right or claim; provided that it may
negotiate and adjust bills in the course of good faith
disputes with customers in a manner consistent with past
practice, provided, further, that such adjustments shall
not be deemed to be included in Schedule 6.9 unless
specifically listed thereon;
(x) commit a material breach or amend or terminate any
material agreement, permit, license or other right; or
(xi) enter into any other transaction outside the ordinary
course of its business or prohibited hereunder.
9.4 EXCLUSIVITY. Neither Stockholder, nor Company, nor any agent,
officer, director, trustee or any representative of any of the foregoing will,
during the period commencing on the date of this Agreement and ending with the
earlier to occur of the Closing Date or the termination of this Agreement in
accordance with its terms, directly/or indirectly:
(i) solicit or initiate the submission of proposals or offers
from any person for,
(ii) participate in any discussions pertaining to, or
(iii) furnish any information to any person other than Parent or
its authorized agents relating to,
any acquisition or purchase of all or a material amount of the assets of, or any
equity interest in, Company, or merger, consolidation or business combination of
Company.
9.5 AGREEMENTS. Stockholder and Company shall terminate (i) any
stockholder agreements, voting agreements, voting trusts, options, warrants and
employment agreements
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between the Company and any employee listed on Schedule 6.16 and (ii) any
existing agreement between Company and Stockholder, on or prior to the
Closing Date, except as otherwise set forth on Schedule 9.5. Copies of such
termination agreements are listed on Schedule 9.5 and copies thereof are
attached thereto.
9.6 NOTIFICATION OF CERTAIN MATTERS. Stockholder and Company
shall give prompt notice to Parent of (i) the occurrence or non-occurrence of
any event the occurrence or non-occurrence of which would likely cause any
representation or warranty of Company or Stockholder contained herein to be
untrue or inaccurate in any respect at or prior to the Closing Date and (ii)
any failure of Stockholder or Company to comply with or satisfy any covenant,
condition or agreement to be complied with or satisfied by such Person
hereunder as of such date. Parent and Newco shall give prompt notice to the
Company of (i) the occurrence or non-occurrence of any event the occurrence
or non-occurrence of which would likely cause any representation or warranty
of Parent or Newco contained herein to be untrue or inaccurate in any respect
at or prior to the Closing Date and (ii) any failure of Parent or Newco to
comply with or satisfy any covenant, condition or agreement to be complied
with or satisfied by it hereunder as of such date. The delivery of any
notice pursuant to this Section 9.6 shall not be deemed to (i) modify the
representations or warranties hereunder of the party delivering such notice,
which modification may only be made pursuant to Section 9.7, (ii) modify the
conditions set forth in Sections 10 and 11, or (iii) limit or otherwise
affect the remedies available hereunder to the party receiving such notice.
9.7 AMENDMENT OF SCHEDULES. Each party hereto agrees that, with
respect to the representations and warranties of such party contained in this
Agreement, such party shall have the continuing obligation until 11:59 p.m.
March 31, 1999 to supplement or amend promptly the Schedules with respect to any
matter hereafter arising or discovered which, if existing or known at the date
of this Agreement, would have been required to be set forth or described in the
Schedules. Notwithstanding the foregoing sentence, no amendment or supplement
to a Schedule prepared by Company or Parent that constitutes or reflects an
event or occurrence that would have a Adverse Effect may be made unless the
parties not making the amendment or supplement consent to such amendment or
supplement. For all purposes of this Agreement, including without limitation
for purposes of determining whether the conditions set forth in Sections 10.1
and 11.1 have been fulfilled, the Schedules shall be deemed to be the Schedules
as amended or supplemented pursuant to this Section 9.7. Except as otherwise
specified in Section 16.3, no party to this Agreement shall be liable to any
other party if this Agreement shall be terminated pursuant to the provisions of
Section 14.1(iv). Neither the entry by Parent into any other agreement, such as
this Agreement, after the date hereof for the acquisition of one or more
companies nor the performance by Parent of its obligations thereunder shall be
deemed to require the amendment to or a supplementation of any Schedule hereto.
9.8 FURTHER ASSURANCE. The parties hereto agree to execute and
deliver, or cause to be executed and delivered, such further instruments or
documents or take such other action as may be reasonably necessary or convenient
to carry out the transactions contemplated by this Agreement.
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10. CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDER AND COMPANY
The obligations of Stockholder and Company with respect to actions
to be taken on the Closing Date are subject to the satisfaction or waiver on or
prior to the Closing Date of all of the following conditions.
10.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS.
All representations and warranties of Parent and Newco contained in this
Agreement shall be true and correct as of the Closing Date with the same effect
as though such representations and warranties had been made on and as of such
date; all of the terms, covenants and conditions of this Agreement to be
complied with or performed by Parent and Newco on or before the Closing Date
shall have been duly complied with or performed; and a certificate to the
foregoing effect dated the Closing Date, and signed by the President or any Vice
President of Parent and of Newco shall have been delivered to Company.
10.2 NO LITIGATION. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or threatened to
restrain or prohibit the Merger and no governmental agency or body shall have
taken any other action or made any request of Company as a result of which the
management of Company deems it inadvisable to proceed with the transactions
hereunder.
10.3 CONSENTS AND APPROVALS. All necessary consents of and filings
with any governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made.
10.4 GOOD STANDING CERTIFICATES. Parent and Newco each shall have
delivered to Company a certificate, dated as of a date no later than ten days
prior to the Closing Date, duly issued by the Oklahoma Secretary of State,
showing that each of Parent and Newco is in good standing and authorized to do
business and that all state franchise and/or income tax returns and taxes for
Parent and Newco, respectively, for all periods prior to the Closing Date have
been filed and paid to the extent required.
10.5 NO MATERIAL ADVERSE EFFECT. No event or circumstance shall
have occurred with respect to Parent or Newco that would constitute a material
Adverse Effect.
10.6 SECRETARY'S CERTIFICATES. Company shall have received a
certificate or certificates, dated the Closing Date and signed by the Secretary
of Parent and of Newco, certifying the completeness and accuracy of the attached
copies of Parent's and Newco's respective Charter Documents (including
amendments thereto), Bylaws (including amendments thereto), and resolutions of
the boards of directors and, if required, the stockholders of Parent and Newco
approving Parent's and Newco's entering into this Agreement and the consummation
of the transactions contemplated hereby.
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10.7 EMPLOYMENT AGREEMENTS. Each of the persons listed in Schedule
10.7 shall have been afforded an opportunity to enter into an employment
agreement, reasonably acceptable to both parties and substantially in the form
of Annex II.
10.8 CLOSING OF THE IPO OR THE PRIVATE PLACEMENT. Parent shall have
received at least $15,000,000 in gross proceeds from Parent's IPO or Private
Placement.
11. CONDITIONS PRECEDENT TO OBLIGATIONS OF PARENT AND NEWCO
The obligations of Parent and Newco with respect to actions to be
taken on the Closing Date are subject to the satisfaction or waiver on or prior
to the Closing Date of all of the following conditions.
11.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS.
All the representations and warranties of Stockholder and Company contained in
this Agreement shall be true and correct as of the Closing Date with the same
effect as though such representations and warranties had been made on and as of
such date; all of the terms, covenants and conditions of this Agreement to be
complied with or performed by Stockholder and Company on or before the Closing
Date shall have been duly complied with or performed; and Stockholder and
Company each shall have delivered to Parent a certificate dated the Closing Date
and signed by them to such effect.
11.2 NO LITIGATION. No action or proceeding before a court or any
other governmental agency or body shall have been instituted or threatened to
restrain or prohibit the Merger and no governmental agency or body shall have
taken any other action or made any request of Parent as a result of which the
management of Parent deems it inadvisable to proceed with the transactions
hereunder.
11.3 SECRETARY'S CERTIFICATE. Parent shall have received a
certificate, dated the Closing Date and signed by the Secretary of the Company,
certifying the completeness and accuracy of the attached copies of Company's
Charter Documents (including amendments thereto), Bylaws (including amendments
thereto), and resolutions of the board of directors and Stockholder approving
Company's entering into this Agreement and the consummation of the transactions
contemplated hereby.
11.4 NO MATERIAL ADVERSE EFFECT. No event or circumstance shall have
occurred with respect to Company which would constitute a material Adverse
Effect, and Company shall not have suffered any material loss or damages to any
of its properties or assets, whether or not covered by insurance, which change,
loss or damage materially affects or impairs the ability of Company to conduct
its business.
11.5 STOCKHOLDER RELEASE. Stockholder shall have delivered to
Parent an instrument dated the Closing Date releasing Company from (i) any and
all claims of Stockholder against
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Company and Parent and (ii) obligations of Company and Parent to Stockholder,
except for (x) items specifically identified on Schedules 6.8 and 6.13 as
being claims of or obligations to Stockholder and (y) obligations arising
under this Agreement or the transactions contemplated hereby.
11.6 TERMINATION OF RELATED PARTY AGREEMENTS. Except as set forth
on Schedule 11.6, all existing agreements between Company and Stockholder shall
have been canceled effective prior to or as of the Closing Date.
11.7 CONSENTS AND APPROVALS. All necessary consents of and filings
with any governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made; and all
consents and approvals of third parties listed on Schedule 6.21 shall have been
obtained.
11.8 GOOD STANDING CERTIFICATES. The Company shall have delivered
to Parent a certificate, dated as of a date no earlier than ten days prior to
the Closing Date, duly issued by the appropriate governmental authority in
Company's state of incorporation and, unless waived by Parent, in each state in
which Company is authorized to do business, showing Company is in good standing
and authorized to do business and that all state franchise and/or income Tax
returns and Taxes for Company for all periods prior to the Closing have been
filed and paid.
11.9 FIRPTA CERTIFICATE. Stockholder shall have delivered to Parent
a certificate to the effect that he or she is not a foreign person under Section
111445-2(b) of the Treasury regulations.
11.10 CLOSING OF THE IPO OR PRIVATE PLACEMENT. Parent shall have
received at least $15,000,000 in gross proceeds from Parent's IPO or Private
Placement.
11.11 EMPLOYMENT AGREEMENT. Each of the persons listed on Schedule
10.7 shall have executed an employment agreement, reasonably acceptable to
both parties and substantially in the form of Annex II.
11.12 FINANCIAL STATEMENTS. Company shall have provided Parent
audited Balance Sheets as of December 31, 1997 and 1998 and audited
Statements of Income, Retained Earnings and Cash Flows for each of the years
in the two-year period ended December 31, 1998.
12. ADDITIONAL COVENANTS OF PARENT AND STOCKHOLDER
12.1 PREPARATION AND FILING OF TAX RETURNS.
(i) Company shall file or cause to be filed all Federal, state
and local income Tax Returns of Company for all taxable
periods that end on or before the Closing Date.
(ii) Parent shall file or cause to be filed all separate
Returns of, or that include,
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Company for all taxable periods ending after the Closing
Date.
(iii) Each party hereto shall, and shall cause its Subsidiaries
and Affiliates to, provide to each of the other parties
hereto such cooperation and information as any of them
reasonably may request in filing any Return, amended
Return or claim for refund, determining a liability for
Taxes or a right to refund of Taxes or in conducting any
audit or other proceeding in respect of Taxes. Such
cooperation and information shall include providing copies
of all relevant portions of relevant Returns, together
with relevant accompanying schedules and work papers,
relevant documents relating to rulings or other
determinations by Taxing Authorities and relevant records
concerning the ownership and Tax basis of property, which
such party may possess. Each party shall make its
employees reasonably available on a mutually convenient
basis at its cost to provide explanation of any documents
or information so provided.
12.2 PRESERVATION OF EMPLOYEE BENEFIT PLANS. Following the Closing
Date, Parent shall not terminate any health insurance, life insurance or 401(k)
plan in effect at Company until such time as Parent is able to replace such plan
with a plan that is applicable to Parent and all of its then existing
Subsidiaries; provided that Parent shall have no obligation to provide
replacement plans that have the same terms and provisions as the existing plans;
provided, further, that any new health insurance plan shall provide for coverage
for preexisting conditions. On the Closing Date, the employees of Company will
be the employees of the Surviving Corporation (provided that this provision is
for purposes of clarifying that the Merger, in and of itself, will not have any
impact on the employment status of any employee; and provided further that this
provision shall not in any way limit the management rights of the Surviving
Corporation or Parent to assess workforce needs and make appropriate adjustments
as necessary or desirable within its discretion subject to applicable laws and
collective bargaining agreements).
13. INDEMNIFICATION
Stockholder, Parent and Newco each make the following covenants that
are applicable to them, respectively:
13.1 GENERAL INDEMNIFICATION BY THE STOCKHOLDER. Stockholder
covenants and agrees that he will indemnify, defend, protect and hold harmless
Parent, Newco, Company and the Surviving Corporation at all times, from and
after the Closing Date until the Expiration Date, from and against all claims,
damages, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred by Parent, Newco,
Company or the Surviving Corporation as a result of or arising from any breach
of any representation, warranty, covenant or agreement on the part of
Stockholder or Company under this Agreement.
13.2 INDEMNIFICATION BY PARENT. Parent covenants and agrees that it
will indemnify,
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defend, protect and hold harmless Stockholder at all times from and after the
Closing Date until the Expiration Date, from and against all claims, damages,
actions, suits, proceedings, demands, assessments, adjustments, costs and
expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred by Stockholder as a
result of or arising from any breach of any representation, warranty,
covenant or agreement on the part of Parent or Newco under this Agreement.
13.3 THIRD PERSON CLAIMS. Promptly after any party hereto
(hereinafter the "Indemnified Party") has received notice of or has knowledge of
any claim by a person not a party to this Agreement ("Third Person"), or the
commencement of any action or proceeding by a Third Person, the Indemnified
Party shall, as a condition precedent to a claim with respect thereto being made
against any party obligated to provide indemnification pursuant to Section 13.1
or 13.2 (hereinafter the "Indemnifying Party"), give the Indemnifying Party
written notice of such claim or the commencement of such action or proceeding.
Such notice shall state the nature and the basis of such claim and a reasonable
estimate of the amount thereof. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel, any such matter so
long as the Indemnifying Party pursues the same diligently and in good faith;
provided that the Indemnifying Party shall not settle any criminal proceeding
without the written consent of the Indemnified Party. If the Indemnifying Party
undertakes to defend or settle, it shall promptly notify the Indemnified Party
of its intention to do so, and the Indemnified Party shall cooperate with the
Indemnifying Party and its counsel in the defense thereof and in any settlement
thereof. Such cooperation shall include, but shall not be limited to,
furnishing the Indemnifying Party with any books, records or information
reasonably requested by the Indemnifying Party that are in the Indemnified
Party's possession or control. All Indemnified Parties shall use the same
counsel, which shall be the counsel selected by Indemnifying Party; provided
that if counsel to the Indemnifying Party shall have a conflict of interest that
prevents counsel for the Indemnifying Party from representing the Indemnified
Party, the Indemnified Party shall have the right to participate in such matter
through counsel of its own choosing and the Indemnifying Party shall be
responsible for the reasonable expenses of such counsel. After the Indemnifying
Party has notified the Indemnified Party of its intention to undertake to defend
or settle any such asserted liability, and for so long as the Indemnifying Party
diligently pursues such defense, the Indemnifying Party shall not be liable for
any additional legal expenses incurred by the Indemnified Party in connection
with any defense or settlement of such asserted liability, except to the extent
such participation is requested by the Indemnifying Party, in which event the
Indemnified Party shall be reimbursed by the Indemnifying Party for reasonable
additional legal expenses and out-of-pocket expenses. If the Indemnifying Party
desires to accept a final and complete settlement of any such Third Person claim
and the Indemnified Party refuses to consent to such settlement, then the
Indemnifying Party's liability under this Section 13.3 with respect to such
Third Person claim shall be limited to the amount so offered in settlement by
such Third Person. Upon agreement as to such settlement between such Third
Person and the Indemnifying Party, the Indemnifying Party shall, in exchange for
a complete release from the Indemnified Party, promptly pay to the Indemnified
Party the amount agreed to in such settlement and the Indemnified Party shall,
from that moment on, bear full responsibility for any additional costs of
defense which it subsequently incurs with respect to such claim and all
additional costs of settlement or judgment. If the Indemnifying Party does not
undertake to defend
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such matter to which the Indemnified Party is entitled to indemnification
hereunder or fails diligently to pursue such defense, the Indemnified Party
may undertake such defense through counsel of its choice, at the cost and
expense of the Indemnifying Party, and the Indemnified Party may settle such
matter upon consent of the Indemnifying Party, which consent will not be
unreasonably withheld, and the Indemnifying Party shall reimburse the
Indemnified Party for the amount paid in such settlement and any other
liabilities or expenses incurred by the Indemnified Party in connection
therewith. All settlements hereunder shall effect a complete release of the
Indemnified Party, unless the Indemnified Party otherwise agrees in writing.
Anything in this Agreement to the contrary notwithstanding, any amounts owing
from an Indemnifying Party to an Indemnified Party under the provisions of
this Section 13 shall be reduced to the extent to which the Indemnified
Party, or any other claimant, actually receives any proceeds of any insurance
policy that are paid with respect to the matter or occurrence that gave rise
to the Third Person claim. Submission to insurance of any insurable claim
otherwise giving rise to indemnification under this Section 13 shall be a
condition precedent to seeking indemnification under this Section.
13.4 EXCLUSIVE REMEDY. The indemnification provided for in this
Section 13 shall be the exclusive remedy in any action seeking damages or any
other form of monetary relief brought by any party to this Agreement against
another party; provided that nothing herein shall be construed to limit the
right of a party, in a proper case, to seek injunctive relief for a breach of
this Agreement.
13.5 LIMITATIONS ON INDEMNIFICATION. No person shall be entitled to
indemnification under this Section 13 if and to the extent that such person's
claim for indemnification is directly or indirectly related to a breach by such
person of any representation, warranty, covenant or agreement set forth in this
Agreement.
14. TERMINATION OF AGREEMENT
14.1 TERMINATION. This Agreement may be terminated at any time
prior to the Closing Date solely:
(i) by mutual consent of the boards of directors of Parent and
Company;
(ii) by Company (acting through its board of directors), on the
one hand, or by Parent (acting through its board of
directors), on the other hand, if the transactions
contemplated by this Agreement to take place at the
Closing shall not have been consummated by May 31, 1999
unless the failure of such transactions to be consummated
is due to the willful failure of the party seeking to
terminate this Agreement to perform any of its obligations
under this Agreement to the extent required to be
performed by it prior to or on the Closing Date;
(iii) by Stockholder or Company, on the one hand, or by Parent,
on the other hand, if a material breach or default shall
be made by the other party in the observance or in the due
and timely performance of any of the material
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covenants, agreements or conditions contained herein, and
the curing of such default shall not have been made on or
before the Closing Date; or
(iv) by Company and Stockholder, on the one hand, or by Parent,
on the other hand, if either such party or parties
declines to consent to an amendment or supplement to a
Schedule proposed by the other party or parties pursuant
to Section 9.7 because such proposed amendment constitutes
or reflects an event or occurrence that would have a
material Adverse Effect on the party or parties proposing
the same.
14.2 LIABILITIES IN EVENT OF TERMINATION. Except as provided in
Section 9.7, the termination of this Agreement will in no way limit any
obligation or liability of any party based on or arising from a breach or
default by such party with respect to any of its representations, warranties,
covenants or agreements contained in this Agreement.
15. NONCOMPETITION
15.1 PROHIBITED ACTIVITIES. Stockholder (other than any Stockholder
subject to an employment agreement listed in Schedule 10.7, each of which is
expressly excepted from the obligations imposed by this Section 15) will not,
for a period of three years following the Closing Date, for any reason
whatsoever, directly or indirectly, for himself or on behalf of or in
conjunction with any other Person:
(i) engage, as an officer, director, stockholder, owner,
partner, joint venturer, or in a managerial capacity,
whether as an employee, independent contractor, consultant
or advisor, or as a sales representative, in the sale or
marketing of telecommunication services or interconnect
services within the state of Oklahoma (the "Territory");
(ii) call upon any person within the Territory who is an
employee of Parent (including the Subsidiaries thereof) in
a sales representative or managerial capacity for the
purpose or with the intent of enticing such employee away
from or out of the employ of Parent (including the
Subsidiaries thereof);
(iii) call upon any Person which is or which has been, within
one year prior to the Closing Date, a customer of Parent
(including the Subsidiaries thereof) for the purpose of
soliciting or selling products or services in direct
competition with Parent (or its Subsidiaries);
(iv) call upon any prospective acquisition candidate, on
Stockholder's own behalf or on behalf of any competitor of
Parent (including the Subsidiaries thereof) in the
long-distance telephone or interconnect business, which
candidate, to the knowledge of such Stockholder after due
inquiry, was called upon by Parent (including the
Subsidiaries thereof) or for which, to
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the knowledge of such Stockholder after due inquiry, Parent
(or any Subsidiary thereof) made an acquisition analysis,
for the purpose of acquiring such entity; or
(v) disclose existing or prospective customers of Company to
any Person for any reason or purpose whatsoever except to
the extent that the Company has in the past disclosed such
information to the public for valid business reasons.
Notwithstanding the above, the foregoing covenants shall not be
deemed to prohibit Stockholder from acquiring as an investment after the date of
this Agreement not more than five percent of the capital stock of a competing
business whose stock is traded on a national securities exchange or the National
Association of Securities Dealers' Automated Quotation System.
15.2 DAMAGES. Because of the difficulty of measuring economic
losses to Parent as a result of a breach of the foregoing covenants, and because
of the immediate and irreparable damage that could be caused to Parent for which
it would have no other adequate remedy, Stockholder agrees that the foregoing
covenants may be enforced by Parent in the event of breach by such Stockholder,
by injunction and restraining order.
15.3 REASONABLE RESTRAINT. It is agreed by the parties hereto that
the foregoing covenants in this Section 15 impose a reasonable restraint on the
Stockholder in light of the activities and business of Parent (including the
Subsidiaries thereof) on the date of the execution of this Agreement and the
reasonably foreseeable plans of Parent.
15.4 SEVERABILITY, REFORMATION. The covenants in this Section 15
are severable and separate, and the unenforceability of any specific covenant
shall not affect the provisions of any other covenant. Moreover, in the event
any court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the intention of
the parties that such restrictions be enforced to the fullest extent the court
deems reasonable, and the Agreement shall thereupon be automatically reformed.
15.5 INDEPENDENT COVENANT. All of the covenants in this Section 15
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 Stockholder
against Parent (including the Subsidiaries thereof), whether predicated on this
Agreement or otherwise, shall not constitute a defense to the enforcement by
Parent of such covenants. It is specifically agreed that the period of three
years stated at the beginning of this Section 15, during which the agreements
and covenants of Stockholder made in this Section 15 shall be effective, shall
be computed by excluding from such computation any time during which such
Stockholder is in violation of any provision of this Section 15. The covenants
contained in Section 15 shall not be affected by any breach of any other
provision hereof by any party hereto and shall become nugatory if the
transactions contemplated by this Agreement are not consummated.
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15.6 MATERIALITY. Stockholder hereby agree that the covenants set
forth in this Section 15 are a material and substantial part of the transactions
contemplated by this Agreement.
16. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
16.1 COMPANY AND STOCKHOLDER. Company and Stockholder recognize and
acknowledge that they had in the past, currently have, and in the future may
have, access to certain confidential information of Company, the Founding
Companies and/or Parent, such as operational policies, and pricing and cost
policies that are valuable, special and unique assets of Company, the Founding
Companies and/or Parent. Company and Stockholder agree that they will not
disclose such confidential information to any Person for any purpose or reason
whatsoever, except (i) to authorized representatives of Parent; (ii) following
the Closing, such information may be disclosed by Company and Stockholder as is
required in the course of performing their duties for Parent or the Surviving
Corporation; and (iii) to counsel and other advisers; provided that such
advisers (other than counsel) agree to the confidentiality provisions of this
Section 16.1, unless (x) such information becomes known to the public generally
through no fault of Stockholder, (y) disclosure is required by law or the order
of any governmental authority under color of law; provided, that prior to
disclosing any information pursuant to this clause (y), Stockholder, if
possible, shall give immediate prior written notice thereof to Parent and
provide Parent with the opportunity to contest such disclosure, or (z) the
disclosing party reasonably believes that such 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 Stockholder of the provisions of this
Section 16.1, Parent shall be entitled to an injunction (without the posting of
bond or proof of actual damages) restraining such Stockholder from disclosing,
in whole or in part, such confidential information. Nothing herein shall be
construed as prohibiting Parent from pursuing any other available remedy for
such breach or threatened breach, including the recovery of damages. In the
event the transactions contemplated by this Agreement are not consummated,
(1) the above mentioned restrictions on Stockholder's ability to disseminate
confidential information with respect to Company shall become nugatory and (2)
Stockholder (including his representatives, advisors and legal counsel) shall
within ten business days of the Parent's request, deliver all copies of the
confidential information of Parent in his possession in any form whatsoever
(including, but not limited to, any reports, memoranda, or other material
prepared by such Stockholder or his representatives, advisors or legal counsel).
16.2 PARENT AND NEWCO. Parent and Newco recognize and acknowledge
that they had in the past and currently have and in the future may have, prior
to the Closing, access to certain confidential information of Company, such as
operational policies, and pricing and cost policies that are valuable, special
and unique assets of Company. Parent and Newco agree that, prior to the
Closing, or if the transactions contemplated by this Agreement are not
consummated, they will not disclose such confidential information to any person
for any purpose or reason whatsoever, except (i) to authorized representatives
of Company; and (ii) to counsel and other advisers; provided that such advisers
(other than counsel) agree to the confidentiality provisions of this Section
16.2, unless (x) such information becomes known to the public generally through
no fault of Parent or Newco, (y) disclosure is required by law or the order of
any governmental authority under color of law; provided, that prior to
disclosing any information pursuant to this clause (y), Parent and Newco
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shall, if possible, give immediate prior written notice thereof to Company
and Stockholder and provide Company and Stockholder with the opportunity to
contest such disclosure, or (z) the disclosing party reasonably believes that
such 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 Parent or Newco of the provisions of this Section 16.2, Company and
Stockholder shall be entitled to an injunction (without the posting of bond
or proof of actual damages) restraining Parent and Newco from disclosing, in
whole or in part, such confidential information. Nothing herein shall be
construed as prohibiting Company and Stockholder from pursuing any other
available remedy for such breach or threatened breach, including the recovery
of damages. In the event the transactions contemplated by this Agreement are
not consummated, Parent and Newco (including their representatives, advisors
and legal counsel) shall within ten business days after Company's request,
deliver all copies of the confidential information of Company in their
possession in any form whatsoever (including, but not limited to, any
reports, memoranda, or other materials prepared by Parent or Newco or their
representatives, advisors or legal counsel at the direction of Parent or
Newco).
16.3 DAMAGES. Because of the difficulty of measuring economic
losses as a result of the breach of the foregoing covenants in Section 16.1 and
16.2 and because of the immediate and irreparable damage that would be caused
for which no other adequate remedy exists, the parties hereto agree that, in the
event of a breach by any of them of the foregoing covenants, the covenant may be
enforced against the other parties by injunction and restraining order.
16.4 SURVIVAL. The obligations of the parties under this Section 16
shall survive the termination of this Agreement for a period of three years from
the Closing Date or the termination of this Agreement pursuant to Section 14.
17. TRANSFER RESTRICTIONS
Except for transfers to immediate family members who agree to be
bound by the restrictions set forth in this Section 17 (or trusts for the
benefit of Stockholder or family members, the trustees of which so agree), for a
period of one year from the consummation of the IPO (unless the IPO shall not be
consummated by May 31, 1999), except pursuant to Section 19, Stockholder shall
not sell, assign, exchange, transfer, encumber, pledge, distribute, appoint, or
otherwise dispose of any Parent Stock received by such Stockholder in the
Merger. The Parent Stock delivered to the Stockholder pursuant to Section 4 of
this Agreement will bear a legend substantially in the form set forth below and
containing such other information as Parent may deem necessary or appropriate:
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EXCEPT AS OTHERWISE PERMITTED BY THE ISSUER, THIS SECURITY MAY NOT BE 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 SALE, ASSIGNMENT, EXCHANGE, TRANSFER, ENCUMBRANCE, PLEDGE,
DISTRIBUTION, APPOINTMENT OR OTHER DISPOSITION PRIOR TO THE FIRST ANNIVERSARY OF
THE CONSUMMATION OF ISSUER'S INITIAL UNDERWRITTEN PUBLIC OFFERING ("IPO"). UPON
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 DATE SPECIFIED ABOVE OR AFTER , IF THE IPO HAS NOT BEEN
CONSUMMATED BY THAT DATE.
18. INVESTMENT REPRESENTATIONS
Stockholder acknowledges that the Parent Stock to be delivered to
Stockholder pursuant to this Agreement (the "Restricted Securities") have not
been and will not be registered under the 1933 Act and therefore may not be
resold without compliance with the requirements of the 1933 Act and applicable
state securities laws. All of the Restricted Securities are being acquired by
Stockholder solely for his own account, for investment purposes only, and not
with a view to or in connection with a distribution thereof.
18.1 COMPLIANCE WITH LAW. Stockholder represents, warrants,
covenants and agrees that none of the Restricted Securities will be offered,
sold, assigned, exchanged, transferred, encumbered, distributed, appointed or
otherwise disposed of except after full compliance with all of the applicable
provisions of the 1933 Act and the rules and regulations of the SEC thereunder
and the provisions of applicable state securities laws and regulations. All the
Restricted Securities shall bear the following legend in addition to the legend
required under Section 17 of this Agreement:
THE SHARES REPRESENTED BY THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR ANY APPLICABLE STATE
SECURITIES LAWS (COLLECTIVELY, THE "ACTS") AND MAY NOT BE SOLD OR OTHERWISE
TRANSFERRED UNLESS AND UNTIL (A) THE SHARES REPRESENTED BY THIS SECURITY SHALL
HAVE BEEN REGISTERED UNDER THE ACTS OR (B) THE HOLDER OF THE SHARES REPRESENTED
BY THIS SECURITY PROVIDES THE ISSUER WITH (X) AN UNQUALIFIED WRITTEN OPINION OF
LEGAL COUNSEL, WHICH COUNSEL AND OPINION (IN FORM AND SUBSTANCE) SHALL BE
REASONABLY SATISFACTORY TO THE ISSUER, TO THE EFFECT THAT THE PROPOSED
DISPOSITION OF THE SHARES REPRESENTED BY THIS SECURITY MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE ACTS OR (Y) SUCH OTHER EVIDENCE AS MAY BE REASONABLY
SATISFACTORY TO THE ISSUER THAT THE PROPOSED DISPOSITION MAY BE EFFECTED WITHOUT
REGISTRATION UNDER THE ACTS.
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18.2 ECONOMIC RISK, SOPHISTICATION. Stockholder is able to bear the
economic risk of an investment in the Restricted Securities and can afford to
sustain a total loss of such investment and have such knowledge and experience
in financial and business matters that he is capable of evaluating the merits
and risks of the proposed investment in Parent. Stockholder has had an adequate
opportunity to ask questions and receive answers from the officers of Parent
concerning any and all matters relating to the transactions described herein
including, without limitation, the background and experience of the current and
proposed officers and directors of Parent, the plans for the operations of the
business of Parent and any plans for additional acquisitions and the like.
Stockholder has asked any and all questions in the nature described in the
preceding sentence and all questions have been answered to their satisfaction.
19. REGISTRATION RIGHTS
19.1 PIGGYBACK REGISTRATION RIGHTS. At any time following the date
of consummation of the IPO, whenever Parent proposes to register any Parent
Stock for its own or the account of others under the 1933 Act for a public
offering, other than (i) any shelf registration of shares to be used as
consideration for acquisitions of additional businesses by Parent and
(ii) registrations relating to employee benefit plans, Parent shall give
Stockholder prompt written notice of its intent to do so. Upon the written
request of Stockholder given within 15 business days after receipt of such
notice, Parent shall cause to be included in such registration all Registerable
Securities (including any shares of Parent Stock issued as a dividend or other
distribution with respect to, or in exchange for, or in replacement of such
Registerable Securities) which Stockholder requests; provided, however, if
Parent is advised in writing in good faith by any managing underwriter of an
underwritten offering of the securities being offered pursuant to any
registration statement under this Section 19.1 that the number of shares to be
sold by Persons other than Parent is greater than the number of such shares
which can be offered without adversely affecting the offering, Parent may reduce
pro rata the number of shares offered for the accounts of such Persons (based
upon the number of shares held by such Person) to a number deemed satisfactory
by such managing underwriter.
19.2 DEMAND REGISTRATION RIGHTS. At any time after the date of
consummation of the IPO, the holders ("Founding Stockholders") of a majority of
the shares of Parent Stock (i) representing Registerable Securities owned by
Stockholder or his permitted transferees or (ii) acquired by other stockholders
of Parent on or prior to the closing of the IPO in connection with the
acquisition of their companies by Parent pursuant to an agreement, similar to
this Agreement, which shares have not been previously registered or sold and
which shares are not entitled to be sold under Rule 144(k) (or any similar or
successor provision) promulgated under the 1933 Act, may request in writing that
Parent file a registration statement under the 1933 Act covering the
registration of the shares of Parent Stock issued to and held by the Founding
Stockholder or his permitted transferees (including any stock issued as a
dividend or other distribution with respect to, or in exchange for, or in
replacement of such Parent Stock) (a "Demand Registration"). Within ten days of
the receipt of such request, Parent shall give written notice of such request to
all other Founding Stockholders and shall, as soon as practicable but in no
event later than 45 days after notice from the Founding Stockholders requesting
such registration, file and use its best efforts to
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cause to become effective a registration statement covering all such shares.
Parent shall be obligated to effect only one Demand Registration for all
Founding Stockholders; provided, however, that Parent shall not be deemed to
have satisfied its obligation under this Section 19.2 unless and until a
Demand Registration covering all shares of Parent Stock requested to be
registered has been filed and becomes effective under the 1933 Act and has
remained current and effective for not less than 90 days (or such shorter
period as is required to complete the distribution and sale of all shares
registered thereunder).
Notwithstanding the foregoing paragraph, following such a demand a
majority of the disinterested directors of Parent (i.e. directors who have not
demanded or elected to sell shares in any such public offering) may defer the
filing of the registration statement for a 30 day period.
If at the time of any request for a Demand Registration Parent has
formulated plans to file within 60 days after such request a registration
statement covering the sale of any of its securities in a public offering under
the 1933 Act, no registration of the Parent Stock shall be initiated under this
Section 19.2 until 90 days after the effective date of such registration
statement unless Parent is no longer proceeding diligently to secure the
effectiveness of such registration statement; provided that Parent shall provide
the Founding Stockholders the right to participate in such public offering
pursuant to, and subject to, Section 19.1.
19.3 REGISTRATION PROCEDURES. All expenses incurred in connection
with the registrations under this Section 19 (including all registration,
filing, qualification, legal, printing and accounting fees, but excluding
underwriting commissions and discounts), shall be borne by Parent. In
connection with registrations under Sections 19.1 and 19.2, Parent will, as
expeditiously as practicable:
(i) Prepare and file with the SEC a registration statement
with respect to such Parent Stock and use its best efforts
to cause such registration statement to become and remain
effective; provided that Parent may discontinue any
registration of its securities that is being effected
pursuant to Section 19.1 at any time prior to the
effective date of the registration statement relating
thereto.
(ii) Prepare and file with the SEC such amendments (including
post-effective amendments) and supplements to such
registration statement and the prospectus used in
connection therewith as may be necessary to keep such
registration statement effective for a period as may be
requested by the stockholders holding a majority of the
Parent Stock covered thereby not exceeding 90 days and to
comply with the provisions of the 1933 Act with respect to
the disposition of all securities covered by such
registration statement during such period in accordance
with the intended methods of disposition by the seller or
sellers thereof set forth in such registration statement;
provided, that before filing a registration statement or
prospectus relating to the sale of Parent Stock, or any
amendments or supplements
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thereto, Parent will furnish to counsel to each holder
of Parent Stock covered by such registration statement or
prospectus, copies of all documents proposed to be filed,
which documents will be subject to the review of such
counsel, and Parent will give reasonable consideration in
good faith to any comments of such counsel.
(iii) Furnish to each holder of Parent Stock covered by the
registration statement and to each underwriter, if any, of
such Parent Stock, such number of copies of a preliminary
prospectus and prospectus for delivery in conformity with
the requirements of the 1933 Act, and such other
documents, as such Person may reasonably request, in order
to facilitate the public sale or other disposition of the
Parent Stock.
(iv) Use its best efforts to register or qualify the Parent
Stock covered by such registration statement under such
other securities or blue sky laws of such jurisdictions as
each seller shall reasonably request, and do any and all
other acts and things which may be reasonably necessary or
advisable to enable such seller to consummate the
disposition of the Parent Stock owned by such seller, in
such jurisdictions, except that Parent shall not for any
such purpose be required (x) to qualify to do business as
a foreign corporation in any jurisdiction where, but for
the requirements of this Section 19.3(iv), it is not then
so qualified, or (y) to subject itself to taxation in any
such jurisdiction, or (z) to take any action which would
subject it to general or unlimited service of process in
any such jurisdiction where it is not then so subject.
(v) Use its best efforts to cause the Parent Stock covered by
such registration statement to be registered with or
approved by such other governmental agencies or
authorities as may be necessary to enable the seller or
sellers thereof to consummate the disposition of such
Parent Stock.
(vi) Immediately notify each seller of Parent Stock covered by
such registration statement, at any time when a prospectus
relating thereto is required to be delivered under the
1933 Act within the appropriate period mentioned in
Section 19.3(ii), if Parent becomes aware that the
prospectus included in such registration statement, as
then in effect, includes an untrue statement of a material
fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein
not misleading in the light of the circumstances then
existing, and, at the request of any such seller, deliver
a reasonable number of copies of an amended or
supplemental prospectus as may be necessary so that, as
thereafter delivered to the Parents of such Parent Stock,
each prospectus shall not include an untrue statement of a
material fact or omit to state a material fact required to
be stated therein or necessary to make the statements
therein not misleading in the light of the
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circumstances then existing.
(vii) Otherwise use its best efforts to comply with all
applicable rules and regulations of the SEC and make
generally available to its security holders, in each case
as soon as practicable, but not later than 45 calendar
days after the close of the period covered thereby (90
calendar days in case the period covered corresponds to a
fiscal year of the Parent), an earnings statement of
Parent which will satisfy the provisions of Section 11 (a)
of the 1933 Act.
(viii) Use its best efforts in cooperation with the underwriters
to list such Parent Stock on each securities exchange as
they may reasonably designate.
(ix) In the event the offering is an underwritten offering, use
its best efforts to obtain a "cold comfort" letter from
the independent public accountants for Parent in customary
form and covering such matters of the type customarily
covered by such letters.
(x) Execute and deliver all instruments and documents
(including in an underwritten offering an underwriting
agreement in customary form) and take such other actions
and obtain such certificates and opinions as the
stockholders holding a majority of the shares of Parent
Stock covered by the Registration Statement may reasonably
request in order to effect an underwritten public offering
of such Parent Stock.
(xi) Make available for inspection by the seller of such Parent
Stock covered by such registration statement, by any
underwriter participating in any disposition to be
effected pursuant to such registration statement and by
any attorney, accountant or other agent retained by any
such seller or any such underwriter, all pertinent
financial and other records, pertinent corporate documents
and properties of Parent, and cause all of Parent's
officers, directors and employees to supply all
information reasonably requested by any such seller,
underwriter, attorney, accountant or agent in connection
with such registration statement.
(xii) Obtain for delivery to the underwriter or agent an opinion
or opinions from counsel for Parent in customary form and
in form and scope reasonably satisfactory to such
underwriter or agent and its counsel.
19.4 OTHER REGISTRATION MATTERS.
(i) Each stockholder holding shares of Parent Stock covered by
a registration statement referred to in this Section 19
will, upon receipt of any notice from Parent of the
happening of any event of the kind described in Section
19.3(vi), forthwith discontinue disposition of the Parent
Stock pursuant to
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the registration statement covering such Parent Stock
until such holder's receipt of the copies of the
supplemented or amended prospectus contemplated by
Section 19.3(vi).
(ii) If a registration pursuant to Section 19.1 or 19.2
involves an underwritten offering, Stockholder agrees,
whether or not his shares of Parent Stock are included in
such registration, not to effect any public sale or
distribution, including any sale pursuant to Rule 144
under the 1933 Act, of any Parent Stock, or of any
security convertible into or exchangeable or exercisable
for any Parent Stock (other than as part of such
underwritten offering), without the consent of the
managing underwriter, during a period commencing eight
calendar days before and ending 180 calendar days (or such
lesser number as the managing underwriter shall designate)
after the effective date of such registration.
19.5 INDEMNIFICATION.
(i) In the event of any registration of any securities of
Parent under the 1933 Act pursuant to Section 19.1 or
19.2, Parent will, and it hereby agrees to, indemnify and
hold harmless, to the extent permitted by law, each seller
of any Parent Stock covered by such registration
statement, each Affiliate of such seller and their
respective directors, officers, employees and agents or
general and limited partners (and directors, officers,
employees and agents thereof) each other Person who
participates as an underwriter in the offering or sale of
such securities and each other Person, if any, who
controls such seller or any such underwriter within the
meaning of the 1933 Act, as follows:
(x) against any and all loss, liability, claim, damage or
expense whatsoever arising out of or based upon an untrue
statement or alleged untrue statement of a material fact
contained in any registration statement (or any amendment
or supplement thereto), including all documents
incorporated therein by reference, or the omission or
alleged omission therefrom of a material fact required to
be stated therein or necessary to make the statements
therein not misleading, or arising out of an untrue
statement or alleged untrue statement of a material fact
contained in any preliminary prospectus or prospectus (or
any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein not misleading;
(y) against any and all loss, liability, claim, damage and
expense whatsoever to the extent of the aggregate amount
paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced
or threatened, or of any claim whatsoever based upon any
such
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untrue statement or omission, or any such alleged
untrue statement or omission, if such settlement is
effected with the written consent of Parent; and
(z) against any and all expense reasonably incurred by them in
connection with investigating, preparing or defending
against any litigation, or investigation or proceeding by
any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue
statement or mission to the extent that any such expense
is not paid under subsection (x) or (y) above;
Such indemnity shall remain in full force and effect regardless
of any investigation made by or on behalf of such seller or any
such director, officer, employee, agent, general or limited
partner, investment advisor or agent, underwriter or
controlling Person and shall survive the transfer of such
securities by such seller.
(ii) Parent may require, as a condition to including any Parent
Stock in any registration statement filed in accordance
with Section 19.1 or 19.2, that Parent shall have received
an undertaking reasonably satisfactory to it from the
prospective seller of such Parent Stock or any
underwriter, to indemnify and hold harmless (in the same
manner and to the same extent as set forth in Section
19.5(i)) Parent with respect to any statement or alleged
statement in or omission or alleged omission from such
registration statement, any preliminary, final or summary
prospectus contained therein, or any amendment or
supplement, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and
in conformity with written information furnished to Parent
by or on behalf of such seller or underwriter specifically
stating that it is for use in the preparation of such
registration statement, preliminary, final or summary
prospectus or amendment or supplement. Such indemnity
shall remain in full force and effect regardless of any
investigation made by or on behalf of Parent or any such
director, officer or controlling Person and shall survive
the transfer of such securities by such seller. In that
event, the obligations of the Parent and such sellers
pursuant to this Section 19.5 are to be several and not
joint; provided, however, that, with respect to each claim
pursuant to this Section 19.5, Parent shall be liable for
the full amount of such claim, and each such seller's
liability under this Section 19.5 shall be limited to an
amount equal to the net proceeds (after deducting the
underwriting discount and expenses) received by such
seller from the sale of Parent Stock held by such seller
pursuant to this Agreement.
(iii) Promptly after receipt by an indemnified party hereunder
of written notice of the commencement of any action or
proceeding involving a claim referred to in this Section
19.5, such indemnified party will, if a claim in respect
thereof
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is to be made against an indemnifying party, give
written notice to such indemnifying party of the
commencement of such action; provided, however, that the
failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party
of its obligations under this Section 19.5, except to the
extent (not including any such notice of an underwriter)
that the indemnifying party is materially prejudiced by
such failure to give notice. In case any such action is
brought against an indemnified party, unless in such
indemnified party's reasonable judgment a conflict of
interest between such indemnified and indemnifying parties
may exist in respect of such claim (in which case the
indemnifying party shall not be liable for the fees and
expenses of more than one firm of counsel selected by
holders of a majority of the shares of Parent Stock
included in the offering or more than one firm of counsel
for the underwriters in connection with any one action or
separate but similar or related actions), the indemnifying
party will be entitled to participate in and to assume the
defense thereof, jointly with any other indemnifying party
similarly notified, to the extent that it may wish with
counsel reasonably satisfactory to such indemnified party,
and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such
indemnified party for any legal or other expenses
subsequently incurred by such indemnifying party in
connection with the defense thereof, provided that the
indemnifying party will not agree to any settlement
without the prior consent of the indemnified party (which
consent shall not be unreasonably withheld) unless such
settlement requires no more than a monetary payment for
which the indemnifying party agrees to indemnify the
indemnified party and includes a full, unconditional and
complete release of the indemnified party; provided,
however, that the indemnified party shall be entitled to
take control of the defense of any claim as to which, in
the reasonable judgment of the indemnifying party's
counsel, representation of both the indemnifying party and
the indemnified party would be inappropriate under the
applicable standards of professional conduct due to actual
or potential differing interests between them. In the
event that the indemnifying party does not assume the
defense of a claim pursuant to this Section 19.5(iii), the
indemnified party will have the right to defend such claim
by all appropriate proceedings, and will have control of
such defense and proceedings, and the indemnified party
shall have the right to agree to any settlement without
the prior consent of the indemnifying party. Each
indemnified party shall, and shall cause its legal counsel
to, provide reasonable cooperation to the indemnifying
party and its legal counsel in connection with its
assuming the defense of any claim, including the
furnishing of the indemnifying party with all papers
served in such proceeding. In the event that an
indemnifying party assumes the defense of an action under
this Section 19.5(iii), then such indemnifying party
shall, subject to the provisions of this Section 19.5,
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indemnify and hold harmless the indemnified party from any
and all losses, claims, damages or liabilities by reason
of such settlement or judgment.
(iv) Parent and each seller of Parent Stock shall provide for
the foregoing indemnity (with appropriate modifications)
in any underwriting agreement with respect to any required
registration or other qualification of securities under
any federal or state law or regulation of any governmental
authority.
19.6 CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity contemplated by Section
19.5 is for any reason not available or insufficient for any reason to hold
harmless an indemnified party in respect of any losses, claims, damages or
liabilities referred to therein, the parties required to indemnify by the terms
thereof shall contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity agreement incurred by
Parent, any seller of Parent Stock and one or more of the underwriters, except
to the extent that contribution is not permitted under Section 11 (f) of the
1933 Act. In determining the amounts which the respective parties shall
contribute, there shall be considered the relative benefits received by each
party from the offering of the Parent Stock by taking into account the portion
of the proceeds of the offering realized by each, and the relative fault of each
party by taking into account the parties' relative knowledge and access to
information concerning the matter with respect to which the claim was asserted,
the opportunity to correct and prevent any statement or omission and any other
equitable considerations appropriate under the circumstances. Parent and each
Person selling securities agree with each other that no seller of Parent Stock
shall be required to contribute any amount in excess of the amount such seller
would have been required to pay to an indemnified party if the indemnity under
Section 19.5(ii) were available. Parent and each such seller agree with each
other and the underwriters of the Parent Stock, if requested by such
underwriters, that it would not be equitable if the amount of such contribution
were determined by pro rata or per capita allocation (even if the underwriters
were treated as one entity for such purpose) or for the underwriters' portion of
such contribution to exceed the percentage that the underwriting discount bears
to the initial public offering price of the Parent Stock. For purposes of this
Section 19.6, each Person, if any, who controls an underwriter within the
meaning of Section 15 of the 1933 Act shall have the same rights to contribution
as such underwriter, and each director and each officer of Parent who signed the
registration statement, and each Person, if any, who controls Parent or a seller
of Parent Stock within the meaning of Section 15 of the 1933 Act shall have the
same rights to contribution as Parent or a seller of Parent Stock, as the case
may be.
19.7 UNDERTAKING TO FILE REPORTS AND COOPERATE IN RULE 144
TRANSACTIONS. After Parent completes its initial underwritten public offering
and for as long thereafter as Stockholder shall continue to hold any Restricted
Securities, Parent shall use reasonable efforts to file, on a timely basis, all
annual, quarterly and other reports required to be filed by it under Sections 13
and 15(d) of the Securities Exchange Act of 1934, as amended, and the rules and
regulations of the SEC thereunder, as amended from time to time.
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20. GENERAL
20.1 COOPERATION. Company, Stockholder, Parent and Newco shall
deliver or cause to be delivered to the other on the Closing Date and at such
other times and places as shall be reasonably agreed to, such additional
instruments as any of the others may reasonably request for the purpose of
carrying out this Agreement. Stockholder will cooperate and use his reasonable
efforts to have the present officers, directors and employees of Company
cooperate with Parent on and after the Closing Date in furnishing information,
evidence, testimony and other assistance in connection with any Tax Return
filing obligations, actions, proceedings, arrangements or disputes of any nature
with respect to matters pertaining to all periods prior to the Closing Date.
20.2 SUCCESSORS AND ASSIGNS. This Agreement and the rights of the
parties hereunder may not be assigned (except by operation of law or as
permitted by Section 17), but if assigned by operation of law, this Agreement
shall be binding upon and shall inure to the benefit of the parties hereto, the
successors of Parent, Newco and Company, and the heirs and legal representatives
of Stockholder. Notwithstanding the foregoing, Stockholder may assign his
shares of Parent Stock and rights thereunder, to a family or children's trust;
provided that the assignee agrees to be bound by the terms of this Agreement to
the same extent as his or its assignor.
20.3 ENTIRE AGREEMENT. This Agreement (including the Schedules and
Annexes) and the documents delivered pursuant hereto constitute the entire
agreement and understanding among Stockholder, Company, Newco and Parent and
supersede any prior agreement and understanding relating to the subject matter
of this Agreement. This Agreement, upon execution and delivery, constitutes a
valid and binding agreement of the parties hereto enforceable in accordance with
its terms and may be modified or amended only by a written instrument executed
by Stockholder and by Company, Newco and Parent, acting through their respective
officers or representatives, duly authorized by their respective Boards of
Directors. Any disclosure made on any Schedule delivered pursuant hereto shall
be deemed to have been disclosed for purposes of any other Schedule required
hereby; provided that Company shall make a good faith effort to cross reference
disclosures, as necessary or advisable, between related Schedules.
20.4 COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, each of which shall be deemed an original and all of
which together shall constitute but one and the same instrument.
20.5 BROKERS AND AGENTS. Except as disclosed on Schedule 20.5, each
party represents and warrants that it employed no broker or agent in connection
with this transaction and agrees to indemnify the other parties hereto against
all loss, cost, damage or expense arising out of claims for fees or commission
of brokers employed or alleged to have been employed by such indemnifying party.
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20.6 NOTICES. All notices of communication required or permitted
hereunder shall be in writing, addressed to the party to be notified, and may be
given by (i) depositing the same in United States mail, postage prepaid and
registered or certified with return receipt requested, (ii) by telecopying the
same if receipt thereof is confirmed or (iii) by delivering the same in person
to an officer or agent of such party.
(x) If to Parent or Newco, addressed to them at:
The Alliance Group, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
McAfee & ▇▇▇▇ A Professional Corporation
▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇, Esq.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(y) If to Stockholder, addressed to him at his address set
forth on Schedule 6.3, with copies to such counsel as is
set forth with respect to Stockholder on such Schedule
6.3;
(z) If to the Company, addressed to it at:
Communication Services, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Attn:
Telecopy No.:
or to such other address or counsel as any party hereto shall specify pursuant
to this Section 20.6
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from time to time.
20.7 GOVERNING LAW. This Agreement Shall be construed in
accordance with the laws of the State of Oklahoma.
20.8 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided
herein, no delay of or omission in the exercise of any right, power or remedy
accruing to any party as a result of any breach or default by any other party
under this Agreement shall impair any such right, power or remedy, nor shall it
be construed 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 deemed a waiver of any other breach or default
occurring before or after that waiver.
20.9 TIME. Time is of the essence with respect to this Agreement.
20.10 REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
practicable, be modified in such manner as to be valid, legal and enforceable
but so as to most nearly retain the intent of the parties, and if such
modification is not possible, such 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.
20.11 REMEDIES CUMULATIVE. Except as otherwise provided in Section
13.4, 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.
20.12 CAPTIONS. The headings of this Agreement are inserted for
convenience only, shall not constitute a part of this Agreement or be used to
construe or interpret any provision hereof.
20.13 PUBLIC STATEMENTS. The parties hereto shall consult with each
other and no party shall issue any public announcement or statement with respect
to the transactions contemplated hereby without the consent of the other
parties, unless the party desiring to make such announcement or statement, after
seeking such consent from the other parties, obtains advice from legal counsel
that a public announcement or statement is required by applicable law.
20.14 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived only with
the written consent of Parent, Newco, Company and Stockholder. Any amendment or
waiver effected in accordance with this Section 20.14 be binding upon each of
the parties hereto.
20.15 ARBITRATION. Any claim, controversy or dispute arising out of
or relating to this Agreement, except as set forth herein, shall be settled by
arbitration in Oklahoma City, Oklahoma, in accordance with the rules for
arbitration in Oklahoma City, Oklahoma, in accordance with the rules for
arbitration of the American Arbitration Association. Any arbitration shall be
undertaken pursuant to the Federal Arbitration Act, where possible, and the
decision of the arbitrators shall be
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final, binding, and enforceable in any court of competent jurisdiction. In
any dispute in which a party seeks in excess of $50,000 in damages, three
arbitrators shall be employed. Otherwise, a single arbitrator shall be
employed. All costs relating to the arbitration shall be borne equally by
the parties, other than their own attorneys' and experts' fees. The parties
will bear their own attorneys' and experts' fees. The arbitrators will not
award punitive, consequential or indirect damages. Each party hereby waives
the right to such damages and agrees to receive only those actual damages
directly resulting from the claim asserted. In resolving all disputes
between the parties, the arbitrators will apply the laws of the State of
Oklahoma. Except as needed for presentation in lieu of a live appearance,
depositions will not be taken. The parties will be entitled to conduct
document discovery by requesting production of documents. The arbitrators
will resolve any discovery disputes by such prehearing conferences as may be
needed. Either party may be entitled to pursue such remedies for emergency
or preliminary injunctive relief in any court of competent jurisdiction,
provided that each party agrees that it will consent to the stay of such
judicial proceedings on the merits of both this Agreement and the related
transactions pending arbitration of all underlying claims between the parties
immediately following the issuance of any such emergency or injunctive relief.
20.16 338 ELECTION. Each of the Stockholders agree, if so directed
by Parent, to join with Parent and Newco in making an election under Section
338(h) of the Code (and any corresponding elections under state, local, or
foreign tax law) with respect to a purchase and sale of the Company Stock;
PROVIDED HOWEVER, that no election shall be made if, as a result of the
election, the Stockholders would incur any adverse tax or other consequences not
otherwise reimbursed by Parent or Newco to the Stockholders.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the day and year first above written.
THE ALLIANCE GROUP, INC.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
TITLE: President/Chief Executive Officer
ALLIANCE ACQUISITION IV CORP.
BY: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
--------------------------------
NAME: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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TITLE: Chief Executive Officer
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COMMUNICATION SERVICES, INC.
BY: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------
NAME: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
TITLE: President
STOCKHOLDER:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
-51-
ANNEX I
CERTIFICATE OF MERGER
MERGING
ALLIANCE ACQUISITION IX CORP.
INTO
COMMUNICATION SERVICES, INC.
Communication Services, Inc., an Oklahoma corporation, pursuant to
Section 81 of the Oklahoma General Corporation Act, DOES HEREBY CERTIFY:
FIRST. That the name of each of the constituent corporations, which
are Oklahoma corporations, is Communication Services, Inc. and Alliance
Acquisition IX Corp.
SECOND. That an agreement and plan of merger has been approved,
adopted, certified, executed and acknowledged by each of the constituent
corporations in accordance with the provisions of Section 81 of the Oklahoma
General Corporation Act.
THIRD. That the name of the surviving corporation is Communication
Services, Inc..
FOURTH. That the certificate of incorporation of Alliance
Acquisition IX Corp. shall be the certificate of incorporation of the surviving
corporation.
FIFTH. That the executed agreement and plan of merger is on file at
the principal place of business of the surviving corporation, which is located
at ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
SIXTH. That a copy of the agreement and plan of merger will be
furnished by the surviving corporation, on request and without cost, to any
shareholder of any constituent corporation.
SEVENTH. This merger shall be effective at - , Central Standard
Time, on the date this Certificate is filed with the Secretary of State of the
State of Oklahoma.
IN WITNESS WHEREOF, Communication Services, Inc. has caused this
certificate to be signed by its President and attested by its Secretary, this
- day of - 1999.
COMMUNICATION SERVICES, INC.
--------------------------------
President
ATTEST:
----------------------
Secretary
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