EXHIBIT 2.4
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AGREEMENT AND PLAN OF REORGANIZATION
DATED AS OF APRIL 10, 1998
BY AND AMONG
OEI INTERNATIONAL, INC.,
GEI ACQUISITION, INC.
▇▇▇▇▇▇ ENGINEERING, INC.
AND
ITS STOCKHOLDERS
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AGREEMENT AND PLAN OF REORGANIZATION
THIS AGREEMENT AND PLAN OF REORGANIZATION (this "AGREEMENT") is made as
of April 10, 1998, among OEI International, Inc., a Delaware corporation
("OEI"), GEI Acquisition, Inc., a Texas corporation and a wholly owned
subsidiary of OEI ("NEWCO"), ▇▇▇▇▇▇ Engineering, Inc., a Texas corporation (the
"COMPANY"), and the persons listed on the signature pages of this Agreement
under the caption "STOCKHOLDERS" (collectively, the "STOCKHOLDERS," and each of
them, individually, a "STOCKHOLDER").
PRELIMINARY STATEMENTS
The parties to this Agreement wish to effect a business combination
pursuant to which:
(i) Newco will merge into the Company (the "MERGER") on
the terms and subject to the conditions of this Agreement;
(ii) OEI, VIA mergers involving other OEI subsidiaries,
will acquire the stock of all or some of the entities other than
the Company identified in the accompanying Addendum I (each an
"OTHER FOUNDING COMPANY" and, collectively with the Company, the
"FOUNDING COMPANIES") under agreements similar to this Agreement
entered into among the Other Founding Companies, their
stockholders, OEI and other subsidiaries of OEI (collectively,
the "OTHER AGREEMENTS"); and
(iii) OEI will effect a public offering of shares of its
common stock.
The respective boards of directors of OEI, Newco and the Company have
approved and adopted this Agreement to effect a transaction involving a transfer
of the nature described in Section 351 of the Code.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and undertakings contained in this Agreement, the
parties to this Agreement agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms have the meanings assigned to them below in this Section 1.01:
"AGREEMENT" means this Agreement, including the Disclosure
Statement relating to this Agreement and all attached Schedules,
Addendum, Annexes and Exhibits, as each of
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them may be amended, modified or supplemented from time to time under
their provisions or the provisions of this Agreement.
"BUSINESS CORPORATION ACT" means the Texas Business Corporation
Act.
"CEILING AMOUNT" means at any time 75% of (i) $9,287,254 plus
(ii) the aggregate amount of Contingent Merger Consideration
(calculating the Contingent Stock Consideration at $12 per share) which
the Stockholders have had, or are entitled to have, disbursed to them at
such time.
"CLOSING" has the meaning specified in Section 7.01(a).
"CLOSING MEMORANDUM" means the form of closing memorandum to be
prepared by OEI for the Closing, in which there shall be included the
forms of certificates of officers, the opinions of counsel and certain
other documents to be delivered at the Closing as provided in Article
VII.
"COMPANY COMMON STOCK" means the common stock, par value $1.00
per share, of the Company.
"CONTINGENT CASH CONSIDERATION" has the meaning specified in
Section 2.07(a).
"CONTINGENT MERGER CONSIDERATION" has the meaning specified in
Section 2.07(a).
"CONTINGENT STOCK CONSIDERATION" has the meaning specified in
Section 2.07(a).
"COUNSEL FOR OEI AND NEWCO" means ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
"COUNSEL FOR THE COMPANY AND THE STOCKHOLDERS" means ▇▇▇ ▇▇▇▇▇▇▇,
Esq.
"CUMULATIVE POST-CLOSING EBITDA" has the meaning specified in
Section 2.08(d).
"CURRENT BALANCE SHEET" means the audited consolidated balance
sheet of the Company and the Company Subsidiaries at December 31, 1997,
which is included in the Initial Financial Statements.
"CURRENT BALANCE SHEET DATE" means December 31, 1997.
"CURRENT DATE" means any day during the 20-day period ending on
the date of the Closing.
"DISCLOSURE STATEMENT" means the written statement executed by
the Company and each of the Stockholders and delivered to OEI prior to
the execution and delivery of this Agreement, in which either (a)
exceptions are taken to each of certain of the representations
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and warranties made by the Company and the Stockholders in this
Agreement or (b) it is confirmed that no exception is taken to that
representation and warranty.
"EARNOUT PERIOD" has the meaning specified in Section 2.08(b).
"EARNOUT YEAR" has the meaning specified in Section 2.08(b).
"ESCROW AGENT" has the meaning specified in Section 2.07(a).
"ESCROW AGREEMENT" has the meaning specified in Section 2.07(a).
"▇▇▇▇▇▇" means ▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
"▇▇▇▇▇▇ ENTERPRISES" means ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ doing business
as "▇▇▇▇▇▇ ENTERPRISES," the owners of the real property subject to the
Lease Agreement and the Right of First Refusal Agreement.
"INITIAL FINANCIAL STATEMENTS" means the audited consolidated
balance sheets of the Company and the Company Subsidiaries at December
31, 1997 and 1996 and the related audited consolidated statements of
income , stockholders' equity and cash flows for each of the Company's
three fiscal years in the three-year period ended December 31, 1997,
together with the related audit report of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP.
"INITIAL MERGER CONSIDERATION" has the meaning specified in
Section 2.04.
"INTERIM DISTRIBUTION" has the meaning specified in Section
2.08(c).
"JUDGMENT RESERVE" means the amount equal to the sum of
$3,587,000.
"LEASE AGREEMENT" means the Lease Agreement to be entered into at
the Closing between the Company and ▇▇▇▇▇▇ Enterprises in substantially
the form of Exhibit 1.01-A.
"MAJORITY STOCKHOLDERS" means any Stockholder or combination of
Stockholders who at the date of this Agreement own shares of Company
Common Stock representing more than two-thirds of the total number of
shares of Company Common Stock outstanding at the date of this
Agreement.
"MERGER CONSIDERATION" means (i) when used in Section 6.07, the
Initial Merger Consideration and the Contingent Merger Consideration and
(ii) when used in Section 7.02(iii), the Initial Merger Consideration.
"NEW EMPLOYMENT AGREEMENT" means the Employment Agreement entered
into as of April 10, 1998, between the Company and ▇▇▇▇▇▇.
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"NEWCO" means GEI Acquisition, Inc., a Texas corporation.
"OEI" means OEI International, Inc., a Delaware corporation.
"OEI ACQUISITION CANDIDATE" means any Entity engaged in the
Practice of Engineering and which shall have been called on by any of
the Company, OEI or a Subsidiary of the Company or OEI in connection
with the possible acquisition by any of them of that Entity or with
respect to which any of them has made an acquisition analysis.
"PARTIES" means the parties to this Agreement.
"PENDING JUDGMENT" has the meaning specified in Section 2.12.
"PRO RATA SHARE" means for each Stockholder the fraction
expressed as a percentage and set forth in Schedule 2.04, (a) the
numerator of which is the number of shares of outstanding Company Common
Stock owned by that Stockholder, as set forth in Schedule 2.04, and (b)
the denominator of which is the total number of shares of outstanding
Company Common Stock owned by all Stockholders, as set forth in Schedule
2.04.
"RESPONSIBLE OFFICER" means ▇▇▇▇▇▇.
"RESTRICTED STOCKHOLDER" has the meaning specified in Section
10.01.
"RIGHT OF FIRST REFUSAL AGREEMENT" means the Right of First
Refusal Agreement to be entered into between the Company and ▇▇▇▇▇▇
Enterprises in substantially the form of Exhibit 1.01-B, pursuant to
which ▇▇▇▇▇▇ Enterprises will grant to the Company a
right-of-first-refusal to lease or purchase, for the same consideration
and on the same terms as are offered by any proposed third-party lessee
or purchaser, the approximately 19.1747 acres of undeveloped land owned
by ▇▇▇▇▇▇ Enterprises and which adjoins the Company's office and
manufacturing facility and is located north of ▇▇▇▇▇▇ Court Road.
"SCHEDULED AGREEMENTS" means the agreements described in Schedule
4.11.
"STOCKHOLDERS' BOOT" means the sum of (i) the aggregate amount of
indebtedness of the Stockholders to the Company to be assumed and paid
by OEI pursuant to Section 2.11 and (ii) the aggregate amount of
contract retainages transferred by the Company to the Stockholders in
kind (or in cash to the extent such retainages are collected prior to
the Closing) pursuant to the provisions of Schedule 6.11.
"SURVIVING CORPORATION" means the Company, which is to be
designated in the Certificate of Merger as the surviving corporation of
the Merger.
"TERRITORY" has the meaning specified in Section 10.01(a).
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"THRESHOLD AMOUNT" means $410,000.
"TRANSFER TAXES" has the meaning specified in Section 11.07.
"TRANSFERORS' AGREEMENT" means the Transferors' Agreement and
Plan of Transfer entered into as of April 10, 1998, among OEI, the
Stockholders and the other Persons party thereto.
"TRUSTEES" means ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, in their capacity as trustees of the Trusts.
"TRUSTS" means each of Stockholders other than ▇▇▇▇▇▇
"UNIFORM PROVISIONS" means the Uniform Provisions for the
Acquisition of Founding Companies attached as Annex 1 to this Agreement.
Section 1.02. DEFINITIONS IN UNIFORM PROVISIONS. Capitalized terms used
in this Agreement but not defined in this Section 1.01 have the meanings
assigned to them in the Preliminary Statements or in Article I of the Uniform
Provisions (the text of which is by this reference incorporated in this
Agreement), as the case may be.
ARTICLE II
THE MERGER AND RELATED MATTERS
Section 2.01. CERTIFICATE OF MERGER. On the terms and subject to the
conditions of this Agreement, the Company will cause a Certificate of Merger to
be duly executed and delivered on or promptly after the date of the Closing to
the Secretary of State of the State of Texas.
Section 2.02. THE EFFECTIVE TIME. The effective time of the Merger (the
"EFFECTIVE TIME") will be the time on the IPO Closing Date which the Certificate
of Merger specifies or, if the Certificate of Merger does not specify another
time, 8:00 a.m., eastern time, on the IPO Closing Date.
Section 2.03. CERTAIN EFFECTS OF THE MERGER. At and as of the Effective
Time, (a) Newco will be merged with and into the Company in accordance with the
provisions of the Business Corporation Act, (b) Newco will cease to exist as a
separate legal entity, (c) the certificate or articles of incorporation of the
Company will be amended to change its authorized capital stock to 1,000 shares,
par value $1.00 per share, of Common Stock, (d) the Company will be the
Surviving Corporation and, as such, will, all with the effect provided by the
Business Corporation Act, (i) possess all the properties and rights, and be
subject to all the restrictions and duties, of the Company and Newco and (ii) be
governed by the laws of the State of Texas, (e) the Charter Documents of the
Company then in effect (after giving effect to the amendment of the Company's
certificate or articles of incorporation specified in clause (c) of this
sentence) will become and thereafter remain (until
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changed in accordance with (i) applicable law, in the case of the certificate or
articles of incorporation or (ii) their terms, in the case of the bylaws) the
Charter Documents of the Surviving Corporation, (f) the initial board of
directors of the Surviving Corporation will be the Persons named in Schedule
2.03, who will hold the office of director of the Surviving Corporation subject
to the provisions of the applicable laws of the State of Texas and the Charter
Documents of the Surviving Corporation, and (g) the officers of the Surviving
Corporation immediately following the Merger will be as set forth in Schedule
2.03, and each of the Persons so designated in Schedule 2.03 will serve in each
office specified for that Person in Schedule 2.03, subject to the provisions of
the Charter Documents of the Surviving Corporation, until his or her successor
is duly elected to, and, if necessary, qualified for, that office.
Section 2.04. EFFECT OF THE MERGER ON CAPITAL STOCK. As of the Effective
Time, as a result of the Merger and without any action on the part of any holder
thereof:
(a) the shares of Company Common Stock issued and outstanding
immediately prior to the Effective Time will (i) be converted into the
right to receive, without interest, on surrender of the certificate
evidencing those shares, the amount of cash and the number of whole and
fractional shares of OEI Common Stock set forth or determined as
provided in Schedule 2.04 (the "INITIAL MERGER CONSIDERATION"), (ii)
cease to be outstanding and to exist, and (iii) be canceled and retired;
(b) each share of Company Common Stock held in the treasury of
the Company or by any Company Subsidiary will (i) cease to be
outstanding and to exist and (ii) be canceled and retired; and
(c) each share of Newco Common Stock issued and outstanding
immediately prior to the Effective Time will be converted into one share
of Common Stock, par value $1.00 per share, of the Surviving
Corporation, and the shares of Common Stock of the Surviving Corporation
issued on such conversion will constitute all the issued and outstanding
shares of Capital Stock of the Surviving Corporation.
Each holder of a certificate representing shares of Company Common Stock
immediately prior to the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, without interest, the Initial Merger Consideration and the
additional cash, if any, owing with respect to those shares as provided in
Section 2.06.
Section 2.05. DELIVERY, EXCHANGE AND PAYMENT.
(a) At or after the Effective Time: (i) each Stockholder, as the
holder of certificates representing shares of Company Common Stock,
will, on surrender of his certificates to OEI (or any agent which may be
appointed by OEI for purposes of this Section 2.05), receive, and OEI
will pay and issue to each Stockholder, in each case subject to the
provisions of Section 2.06, the Initial Merger Consideration; and (ii)
until any certificate representing Company Common Stock has been
surrendered and replaced pursuant to this
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Section 2.05, that certificate will, for all purposes, be deemed to
evidence ownership of the number of whole shares of OEI Common Stock
included in the Initial Merger Consideration payable in respect of that
certificate pursuant to Section 2.04. All shares of OEI Common Stock
issuable in the Merger will be deemed for all purposes to have been
issued by OEI at the Effective Time. All cash included in the Initial
Merger Consideration shall be paid by OEI's company checks, certified or
official bank checks, or wire transfers, at OEI's option. In the case of
wire transfers, the transfers shall be to accounts designated by the
respective Stockholders at least five Business Days before the IPO
Closing Date.
(b) Each Stockholder will deliver to OEI (or any agent that may
be appointed by OEI for purposes of this Section 2.05), on or before the
IPO Closing Date, the certificates representing Company Common Stock
owned by the Stockholder, duly endorsed in blank by him, or accompanied
by stock powers duly executed by him in blank, and with all necessary
transfer tax and other revenue stamps, acquired at his expense, affixed
and canceled. In the event this Agreement is terminated pursuant to
Article XII prior to the Effective Time, OEI or its agent will return
all such certificates and other documents to the Stockholders. Each
Stockholder shall cure any deficiencies in the endorsement of the
certificates or other documents of conveyance respecting, or in the
stock powers accompanying, the certificates representing Company Common
Stock delivered by him.
(c) No dividends (or interest) or other distributions declared or
earned after the Effective Time with respect to OEI Common Stock and
payable to the holders of record thereof after the Effective Time will
be paid to the holder of any unsurrendered certificates representing
shares of Company Common Stock for which shares of OEI Common Stock have
been issued in the Merger until the unsurrendered certificates are
surrendered as provided herein, but (i) on such surrender, OEI will
cause to be paid, to the Person in whose name the certificates
representing such shares of OEI Common Stock shall then be issued, the
amount of dividends or other distributions previously paid with respect
to such whole shares of OEI Common Stock with a record date, or which
have accrued, subsequent to the Effective Time, but prior to surrender,
and the amount of any cash payable to such Person for and in lieu of
fractional shares pursuant to Section 2.06 and (ii) at the appropriate
payment date or as soon as practicable thereafter, OEI will cause to be
paid to that Person the amount of dividends or other distributions with
a record date, or which have been accrued, subsequent to the Effective
Time, but which are not payable until a date subsequent to surrender,
which are payable with respect to such number of whole shares of OEI
Common Stock, subject in all cases to any applicable escheat laws. No
interest will be payable with respect to the payment of such dividends
or other distributions (or cash for and in lieu of fractional shares) on
surrender of outstanding certificates.
Section 2.06. FRACTIONAL SHARES. Notwithstanding any other provision of
this Article II, no fractional shares of OEI Common Stock will be issued, and
any Stockholder otherwise entitled to receive a fractional share of OEI Common
Stock but for this Section 2.06 will instead be entitled to receive a cash
payment for and in lieu thereof in the amount (rounded to the nearest whole
cent) equal to that Person's fractional interest in a share of OEI Common Stock
multiplied by $12.
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Section 2.07. CONTINGENT CONSIDERATION AND RELATED ESCROW.
(a) ESCROW. At the Effective Time, in addition to the Initial
Merger Consideration to be delivered to the Stockholders: (i) OEI shall
deposit with an escrow agent to be jointly selected by OEI and the
Stockholders (the "ESCROW AGENT"), 654,099 shares of OEI Common Stock
(the "CONTINGENT STOCK CONSIDERATION") and $3,363,939 in cash (the
"CONTINGENT CASH CONSIDERATION" and, together with the Contingent Stock
Consideration, the "CONTINGENT MERGER CONSIDERATION"); and (ii) OEI and
the Stockholders shall enter into an Escrow Agreement (the "ESCROW
AGREEMENT") with the Escrow Agent, which shall be in the form of Exhibit
2.07, with its blanks appropriately completed; provided, however, that
OEI may at any time on or before the date of Closing elect to substitute
for all or any part of the Contingent Stock Consideration cash in an
amount equal to $12 times the number of shares of OEI Common Stock for
which OEI elects to substitute cash.
(b) STOCKHOLDERS' RIGHTS. The Contingent Stock Consideration
shall: (i) be issued and outstanding shares of OEI Common Stock and
shall appear as such on the balance sheet of OEI; (ii) be entitled, PRO
RATA with all other holders of OEI Common Stock, to all dividends
declared with respect to the OEI Common Stock; and (iii) have voting
rights equal to the voting rights of all other issued and outstanding
shares of OEI Common Stock. Any cash dividends which may be declared and
paid by OEI in respect of the Contingent Stock Consideration shall be
paid by OEI to the Escrow Agent and shall become additional Contingent
Cash Consideration. All shares of OEI Common Stock payable in respect of
the Contingent Stock Consideration as a result of any stock split or
other non-cash distribution (including a stock dividend) shall be held
by the Escrow Agent and shall become additional Contingent Stock
Consideration. The Escrow Agent shall vote the Contingent Stock
Consideration during the time such shares are held in escrow pursuant to
the written instructions of the Stockholders, in accordance with their
respective Pro Rata Shares.
(c) INVESTMENTS, INTEREST AND DIVIDENDS. All cash from time to
time held in escrow shall be invested in bonds intended to be free of
federal income tax or in bond funds invested primarily in such bonds, as
mutually agreed by OEI and the Stockholders. The term "Contingent Cash
Consideration" shall include all cash existing at any time in escrow,
including interest, cash dividends and other cash proceeds paid on or
with respect to Contingent Cash Consideration or Contingent Stock
Consideration. The term "Contingent Stock Consideration" shall include
all shares of OEI Common Stock held of record at any time by the Escrow
Agent, including such shares issued as a result of any stock split or
other non-cash distribution (including a stock dividend.)
(d) ASSIGNMENT. The Stockholders may grant or assign to one or
more employees of the Company the right to purchase or receive all or
any part of the Contingent Merger Consideration upon its distribution
from escrow, subject, in the case of Contingent Stock Consideration, to
compliance with all applicable federal and state securities laws;
PROVIDED, HOWEVER, that any such employee will take any Contingent Stock
Consideration
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granted or assigned to him hereunder subject to the restrictions on
transfer contained in Section 11.02.
Section 2.08. DISBURSEMENT FROM ESCROW.
(a) INSTRUCTIONS TO ESCROW AGENT. OEI and the Stockholders agree
to provide the Escrow Agent, from time to time, with joint written
instructions to distribute the Contingent Merger Consideration in
accordance with the provisions set forth in this Section 2.08.
(b) EARN-OUT PERIOD. The Contingent Merger Consideration will be
distributed to the Stockholders or returned to OEI, in each case in
whole or in part, based on the Company's achievement of, or failure to
achieve, within the three-year period beginning January 1, 1998 (the
"EARNOUT PERIOD"), designated levels of Cumulative Post-Closing EBITDA
(as defined below). The Earnout Period shall be divided into three
successive one-year periods (each an "EARNOUT YEAR"), the first of which
shall begin on January 1, 1998, with each Earnout Year thereafter to
begin on the next succeeding anniversary of that day.
(c) INTERIM DISTRIBUTIONS. If at the end of any Earnout Year,
Cumulative Post-Closing EBITDA through the end of that Earnout Year
exceeds the product of (x) $3,833,015 times (y) the number of full
Earnout Years lapsed through the end of that Earnout Year, then there
shall be distributed to the Stockholders a portion of the Contingent
Merger Consideration (the "INTERIM DISTRIBUTION") determined by:
(i) subtracting (x) the product of (a) $3,833,015 times
(b) the number of full Earnout Years lapsed through the end of
the most recently ended Earnout Year, from (y) Cumulative
Post-Closing EBITDA for that portion of the Earnout Period ended
on the most recently completed Earnout Year;
(ii) multiplying $11,213,127 by a fraction the numerator
of which is the result of the calculation made under clause (i)
above and the denominator of which is $6,727,875; and
(iii) subtracting from that result the sum of (x) all
Contingent Cash Consideration previously distributed to the
Stockholders and (y) $12 multiplied by the number of shares of
Contingent Stock Consideration, if any, previously distributed to
the Stockholders;
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in which case:
(i) the amount of Contingent Cash Consideration
distributed to the Stockholders shall equal 30% (subject to
appropriate adjustment if OEI elects to substitute cash for any
Contingent Stock Consideration) of the Interim Distribution; and
(ii) the number of shares of Contingent Stock
Consideration distributed to the Stockholders shall be determined
by first (x) subtracting (a) the amount of the Contingent Cash
Consideration distributable to the Stockholders under clause (i)
above from (b) the amount of the Interim Distribution, and (y)
then dividing that result by $12.
Any Interim Distribution shall be payable and issuable to the
Stockholders PRO RATA in accordance with their respective Pro Rata
Shares.
(d) CUMULATIVE POST-CLOSING EBITDA. As used herein, the term
"CUMULATIVE POST-CLOSING EBITDA" means for any period beginning on
January 1, 1998, and ending on any specified date, consolidated earnings
(including engineering income) of the Company and the Subsidiary before
interest expense, foreign, federal and state income and franchise taxes
(to the extent based on or measured by income), and depreciation and
amortization expense, all determined in accordance with generally
accepted accounting principles, adjusted to:
(i) eliminate any charges to the Company's earnings in
respect of allocations of indirect corporate overhead expense
(but not expenses directly attributable to the Company or its
operations, such as charges for insurance) of OEI;
(ii) reflect a capital charge (computed at an annual rate
equal to the average rate OEI is then paying on outstanding
advances under its primary line of credit facility with a bank,
plus 1%) for all funds advanced to the Company by OEI (x) for
working capital purposes or (y) to fund capital expenditures of
the Company for the purpose of improving, expanding or adding to
(but not maintaining at its present level) the Company's
property, plant and equipment;
(iii) reflect a 1% charge for all funds advanced to the
Company under any bank credit facility guaranteed by OEI or in
respect of which OEI is otherwise contingently liable;
(iv) eliminate any charges to the Company's earnings
resulting from the Company being required to perform under any
guaranty of any third party obligation if the guaranty is
unrelated to the Company's business;
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(v) exclude non-operating income and losses, such as, by
way of example only, investment income and gains and losses from
dispositions of capital assets; and
(vi) exclude all other non-recurring or extraordinary
items of gain or loss.
Section 2.09. TERMINATION OF ESCROW.
(a) INSTRUCTIONS TO ESCROW AGENT. OEI and the Stockholders agree
to provide the Escrow Agent with joint written instructions to
distribute the Contingent Merger Consideration in accordance with the
provisions set forth in this Section 2.09.
(b) EARLY TERMINATION OF EARN-OUT. If before the expiration of
the Earnout Period:
(i) the Company's Cumulative Post-Closing EBITDA reaches
or exceeds an amount equal to $18,226,920 then all of the
previously undistributed Contingent Merger Consideration, plus
all previously undistributed interest and dividends earned on it
while in escrow, shall be distributed to the Stockholders, and
the escrow shall terminate. The distribution on any such
termination shall be payable and issuable to the Stockholders PRO
RATA in accordance with their respective Pro Rata Shares.
(ii) ▇▇▇▇▇▇ voluntarily terminates his employment with
the Company or is discharged for "Cause" (as such term is defined
in the New Employment Agreement), then all Contingent Cash
Consideration and all Contingent Stock Consideration (including
all interest, dividends and other proceeds paid on or with
respect to amounts in escrow) which are then in escrow, shall be
distributed to OEI, and the escrow shall terminate. Neither the
death nor disability of ▇▇▇▇▇▇ shall cause such an early
termination of the escrow.
(c) EXPIRATION OF EARNOUT PERIOD. If upon the expiration of the
Earnout Period, the Company's Cumulative Post-Closing EBITDA has not
reached or exceeded an amount equal to $18,226,920 then all previously
undistributed Contingent Cash Consideration and all Contingent Stock
Consideration shall be distributed to OEI, and the escrow shall
terminate.
Section 2.10. OEI COVENANTS DURING THE EARNOUT PERIOD. OEI agrees that
from the time of Closing through the first to occur of the expiration of the
Earnout Period or the termination of the escrow as provided in Section 2.09
above, OEI will not cause or permit the Company to:
(a) be liquidated or dissolved;
(b) sell all or substantially all of its assets;
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(c) relocate the Company's principal office and fabrication
facility from its present location;
(d) merge or consolidate with or into any corporation or other
business entity; or
(e) acquire another business entity or the assets or operations
of another business entity.
Except as specifically prohibited above in this Section 2.10, the
Company may at any time change or discontinue any of its present or future
assets or operations, or may close any of its present or future offices or
manufacturing facilities, or undertake new operations, or may take any and all
other steps which the Company's Board of Directors, in its judgment, shall deem
advisable and in the best interest of the Company, and if any such action
adversely affects Cumulative Post-Closing EBITDA, the Stockholders shall have no
claim or recourse by reason of such action.
Section 2.11. ASSUMPTION OF CERTAIN OBLIGATIONS. As additional
consideration for the shares of the Company Common Stock, effective as of the
Effective Time, OEI will assume the obligation of the Stockholders to pay the
outstanding balance as of December 31, 1997, of the loans from the Company to
the Stockholders in the aggregate amount of $3,120,571.
Section 2.12. PENDING JUDGMENT. If, prior to the IPO Closing Date, the
Company is released from all liability with respect to the judgment against the
Company in the cause reflected on the Current Balance Sheet and described in
footnote 9 to the Initial Financial Statements (the "Pending Judgment"), for
less than the amount of the Judgment Reserve, then the amount by which the
Judgment Reserve exceeds the amount paid to settle the Pending Judgment and to
obtain such release will be added to the cash portion of the Initial Merger
Consideration. If the Company is released from all liability in respect of the
Pending Judgment within three months after the date of the Closing for less than
the amount of the Judgment Reserve, then the amount by which the Judgment
Reserve exceeds the amount paid to settle the Pending Judgment and to obtain
such release will be paid to the Stockholders in accordance with their
respective Pro Rate Shares. If the Pending Judgment is not settled and released
within three months after the IPO Closing Date, the Company shall pay and obtain
the release of the Pending Judgment and there shall be no adjustment to the
Merger Consideration.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF EACH STOCKHOLDER
Section 3.01. BY EACH STOCKHOLDER. Each Stockholder, severally as to
himself or herself only, represents and warrants to OEI that all the following
representations and warranties in this Article III are true and correct:
12
(a) (i) the Stockholder will be acquiring the shares of OEI
Common Stock to be issued to him pursuant to Section 2.04 solely for the
Stockholder's account, for investment purposes only and with no current
intention or plan to distribute, sell or otherwise dispose of any of
those shares in connection with any distribution; (ii) the Stockholder
is not a party to any agreement or other arrangement for the disposition
of any shares of OEI Common Stock other than this Agreement, the
Transferors' Agreement and the Registration Rights Agreement; (iii)
unless otherwise specified on Schedule 3.01, the Stockholder is an
"accredited investor" as defined in Securities Act Rule 501 (a); (iv)
the Stockholder (A) is able to bear the economic risk of an investment
in the OEI Common Stock to be acquired by him pursuant to this
Agreement, (B) can afford to sustain a total loss of that investment,
(C) has such knowledge and experience in financial and business matters
that he is capable of evaluating the merits and risks of the proposed
investment in the OEI Common Stock, (D) has had an adequate opportunity
to ask questions and receive answers from the officers of OEI concerning
any and all matters relating to the transactions contemplated by this
Agreement, including the background and experience of the current and
proposed officers and directors of OEI, the plans for the operations of
the business of OEI, the business, operations and financial condition of
the Other Founding Companies and any plans of OEI for additional
acquisitions, and (E) has asked all questions of the nature described in
preceding clause (D), and all those questions have been answered to his
satisfaction;
(b) the Trustees are the duly named and serving trustees of each
of the Trusts, the execution and delivery by the Trustees of this
Agreement are within their powers, and the performance by the Trusts of
this Agreement are within the powers and purposes of the Trusts under
the terms of all documents creating, evidencing or governing the Trusts,
true and correct copies of all of which have been delivered to OEI by
the Trusts, and neither the execution, delivery nor performance by the
Trusts of this Agreement will violate, constitute a breach of, or
conflict with any documents creating, evidencing or governing the
Trusts; and
(c) the representations and warranties contained in Article III
of the Uniform Provisions (the text of which Article hereby is
incorporated herein by this reference) are true and correct, and the
agreements set forth therein are hereby agreed to.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
THE COMPANY AND THE STOCKHOLDERS
Section 4.01. BY THE COMPANY AND EACH STOCKHOLDER. The Company and each
Stockholder jointly and severally represent and warrant to, and agree with, OEI
that all the following representations and warranties in this Article IV are
true and correct:
(a) the Organization State of the Company is the State of Texas,
and the Company (i) is a corporation duly organized, validly existing
and in good standing under the laws of that State and (ii) has the
corporate power and authority under those laws and its
13
Charter Documents to own or lease and to operate its properties and to
carry on its business as now conducted;
(b) the authorized Capital Stock of the Company is comprised of
1,000,000 shares of Company Common Stock, of which 10,000 shares have
been issued and are now outstanding and no shares are held by the
Company as treasury shares, and no outstanding Derivative Securities of
the Company exist;
(c) each of the primary beneficiaries of each of The ▇▇▇▇▇▇
Children's Trusts and of each of The JGCG Generation-Skipping Trusts is
an adult child of ▇▇▇▇▇▇ and each of the primary beneficiaries of The
▇▇▇▇▇▇ Grandchildren's Trusts is a minor child of one of the adult
children of ▇▇▇▇▇▇ who is a primary beneficiary under The ▇▇▇▇▇▇
Children's Trusts and the JGCG Generation-Skipping Trusts and each such
minor child has the same principal residence as the adult child of
▇▇▇▇▇▇ who is a primary beneficiary under The ▇▇▇▇▇▇ Children's Trusts
and the JGCG Generation-Skipping Trusts; and
(d) the representations and warranties contained in Article IV of
the Uniform Provisions (the text of which Article hereby is incorporated
herein by this reference) are true and correct, and the agreements set
forth therein are agreed to.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF OEI AND NEWCO
Section 5.01. BY OEI AND NEWCO. OEI and Newco jointly and severally
represent and warrant to the Company and each Stockholder that all the following
representations and warranties in this Article V are true and correct: (a) Newco
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Texas, (b) no Derivative Securities of Newco are
outstanding, (c) Newco has been organized for the sole purpose of participating
in the Merger and has not, and will not, engage in any activities other than
those necessary to effectuate the Merger, and (d) the representations and
warranties contained in Article V of the Uniform Provisions (the text of which
Article hereby is incorporated herein by this reference) are true and correct.
ARTICLE VI
COVENANTS EXTENDING TO THE EFFECTIVE TIME
Section 6.01. OF EACH PARTY. Until the Effective Time, subject to the
waiver provisions of Section 11.05, each Party will comply with each covenant
for which provision is made in Article VI of the Uniform Provisions (the text of
which Article VI is hereby incorporated herein by this reference) to be
performed or observed by that Party.
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ARTICLE VII
THE CLOSING AND CONDITIONS TO CLOSING AND CONSUMMATION
Section 7.01. THE CLOSING AND CERTAIN CONDITIONS.
(a) THE CLOSING. On or before the IPO Pricing Date, the Parties
will take all actions necessary to (i) effect the Merger on the IPO
Closing Date (including, as permitted by the Business Corporation Act,
(A) the execution of a Certificate of Merger meeting the requirements of
the Business Corporation Act and providing that the Merger will become
effective on the IPO Closing Date and (B) the filing of the Certificate
of Merger with the Secretary of State of the State of Texas), (ii)
verify the existence and ownership of the certificates evidencing the
Company Common Stock to be exchanged for the Initial Merger
Consideration pursuant to Section 2.05, and (iii) satisfy the document
delivery requirements to which the obligations of the Parties to effect
the Merger and the other transactions contemplated hereby are
conditioned by the provisions of this Article VII (all those actions
collectively being the "CLOSING"). The Closing will take place at the
offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇ at
10:00 a.m., Houston time, or at such later time on the IPO Pricing Date
as OEI shall specify by written notice to ▇▇▇▇▇▇. The actions taken at
the Closing will not include the completion of either the Merger or the
delivery of the Company Common Stock or the Initial Merger Consideration
pursuant to Section 2.05. Instead, on the IPO Closing Date, the
Certificate of Merger will become effective pursuant to Section 2.02,
and all transactions contemplated by this Agreement to be closed or
completed on or before the IPO Closing Date, including the surrender of
the Company Common Stock in exchange for the Initial Merger
Consideration will be closed or completed, as the case may be. During
the period from the Closing to the IPO Closing Date, this Agreement may
be terminated by the parties only pursuant to Section 12.01 (b)(i).
(b) CERTAIN CONDITIONS TO THE OBLIGATIONS OF THE COMPANY AND THE
STOCKHOLDERS. The obligations of the Company and the Stockholders with
respect to the actions to be taken by them at or before the Closing are
subject to the satisfaction on or before the date of the Closing, or
waiver by them pursuant to Section 11.05, of all the conditions set
forth in Sections 7.02(a) and 7.03. The obligations of the Stockholders
with respect to the actions to be taken on the IPO Closing Date are
subject to the satisfaction on that date of the following conditions:
(i) each of the Transferors' Agreement, the New Employment Agreement and
the Escrow Agreement then shall be in full force and effect; and (ii)
all the conditions set forth in Sections 7.02(b) and 7.03.
(c) CERTAIN CONDITIONS TO THE OBLIGATIONS OF OEI AND NEWCO. The
obligations of OEI and Newco with respect to actions to be taken by them
at or before the Closing are subject to the satisfaction on or before
the date of the Closing, or waiver by them pursuant to Section 11.05, of
the following conditions: (i) the Company shall have delivered to OEI a
copy of the articles or certificate of incorporation, as amended to the
date of the Closing
15
and certified by the Secretary of State of the State of Texas as of a
Current Date, of the Company; and (ii) all the conditions set forth in
Sections 7.02(a) and 7.04(a).
(d) CERTAIN CONDITIONS TO BE MET BY IPO CLOSING DATE. The
obligations of OEI and Newco with respect to the actions to be taken on
the IPO Closing Date are subject to the satisfaction on that date of the
following conditions: (i) each of the Transferors' Agreement, the New
Employment Agreement, the Escrow Agreement, the Lease Agreement and the
Right of First Refusal Agreement then shall be in full force and effect;
and (ii) all the conditions set forth in Sections 7.02(b) and 7.04(b).
(e) INCORPORATION OF ARTICLE VII OF UNIFORM PROVISIONS. The text
of Article VII of the Uniform Provisions hereby is incorporated herein
by this reference.
ARTICLE VIII
COVENANTS FOLLOWING THE EFFECTIVE TIME
Section 8.01. OF EACH PARTY OTHER THAN THE COMPANY. From and after the
Effective Time, subject to the waiver provisions of Section 11.05, each Party
(other than the Company) will comply with each covenant for which provision is
made in Article VIII of the Uniform Provisions (the text of which Article hereby
is incorporated herein by this reference) to be performed or observed by that
Party.
ARTICLE IX
INDEMNIFICATION
Section 9.01. INDEMNIFICATION RIGHTS AND OBLIGATIONS. The text of
Article IX of the Uniform Provisions hereby is incorporated herein by this
reference.
ARTICLE X
LIMITATIONS ON COMPETITION
Section 10.01. PROHIBITED ACTIVITIES. Each Stockholder identified on
Schedule 10.01 (each a "Restricted Stockholder") and, in the case of paragraphs
(b) and (d) below of this Section 10.01, each Stockholder, severally agrees that
he will not during the period beginning on the date hereof and ending on the
third anniversary of the date hereof, directly or indirectly, for any reason,
for his own account or on behalf of or together with any other Person:
(a) engage as an officer, director or in any other managerial
capacity or as an owner, co-owner or other investor of or in, whether as
an employee, independent contractor, consultant or advisor, any business
engaged in the Practice of Engineering in competition with the Company,
any Company Subsidiary or OEI or any Subsidiary of OEI (OEI and its
16
Subsidiaries collectively being called "OEI" for purposes of this
Article X) within any territory surrounding any office or facility (each
a "facility") in which any of the Company or the Company Subsidiaries
was engaged in business on the date hereof or immediately prior to the
Effective Time (for purposes of this Article X, the territory
surrounding a facility shall be: (i) the city, town or village in which
the facility is located, (ii) the county or parish in which the facility
is located, (iii) the counties or parishes contiguous to the county or
parish in which the facility is located, and (iv) the area located
within 100 miles of the facility, all of such locations being herein
collectively called the "TERRITORY");
(b) call on any natural Person who is at that time employed by
the Company, any Company Subsidiary or OEI with the purpose or intent of
attracting that person from the employ of the Company, any Company
Subsidiary or OEI, provided that a Stockholder may call on and hire any
of his Immediate Family Members;
(c) call on any Person that at that time is, or at any time
within one year prior to that time was, a customer of the Company, any
Company Subsidiary or OEI within the Territory, (i) for the purpose of
soliciting or selling any product or service in competition with the
Company, any Company Subsidiary or OEI within the Territory and (ii)
with the knowledge of the customer relationship; or
(d) call on any OEI Acquisition Candidate, with the knowledge of
that Person's status as an OEI Acquisition Candidate, for the purpose of
acquiring that Person or arranging the acquisition of that Person by any
Person other than OEI.
Notwithstanding the foregoing, any Restricted Stockholder may own and hold as a
passive investment up to 1% of a class of the outstanding Capital Stock of a
competing Entity if that class of Capital Stock is publicly traded.
Section 10.02. DAMAGES. Because of the difficulty of measuring economic
losses to OEI as a result of any breach by a Restricted Stockholder or any other
Stockholder of his covenants in Section 10.01, and because of the immediate and
irreparable damage that could be caused to OEI for which it would have no other
adequate remedy, each Restricted Stockholder (and, in the case of paragraphs (b)
and (d) of Section 10.01, each Stockholder) agrees that OEI may enforce the
provisions of Section 10.01 by injunctions and restraining orders against the
Restricted Stockholder or Stockholder, as the case may be, if he breaches any of
those provisions.
Section 10.03. REASONABLE RESTRAINT. The Parties each agree that
Sections 10.01 and 10.02 impose a reasonable restraint on the Restricted
Stockholder or Stockholders, as the case may be, in light of the activities and
business of OEI on the date hereof, the current business plans of OEI and the
investment by each Stockholder in OEI as a result of the Merger.
Section 10.04. SEVERABILITY; REFORMATION. The covenants in this Article
X are severable and separate. The unenforceability of any specific covenant in
this Article X is not intended by any Party to, and shall not, affect the
provisions of any other covenant in this Article X. If any court of
17
competent jurisdiction determines that the scope, time or territorial
restrictions set forth in Section 10.01 are unreasonable as applied to any
Restricted Stockholder or Stockholder, as the case may be, the Parties,
including the Restricted Stockholder or Stockholder in question, acknowledge
their mutual intention and agreement that those restrictions be enforced to the
fullest extent the court deems reasonable, and thereby shall be reformed to that
extent as applied to that Restricted Stockholder or Stockholder, as the case may
be, and any other Restricted Stockholder or Stockholder, as the case may be,
similarly situated.
Section 10.05. INDEPENDENT COVENANT. All the covenants in this Article X
are intended by each Party to, and shall, be construed as an agreement
independent of any other provision in this Agreement, and the existence of any
claim or cause of action of any Restricted Stockholder or Stockholder against
OEI, whether predicated on this Agreement or otherwise, shall not constitute a
defense to the enforcement by OEI of any covenant in this Article X. It is
specifically agreed that the period specified in Section 10.01 shall be computed
in the case of each Restricted Stockholder and Stockholder by excluding from
that computation any time during which the Restricted Stockholder or Stockholder
is in violation of any provision of Section 10.01. The covenants contained in
this Article X shall not be affected by any breach of any other provision of
this Agreement by any Party.
Section 10.06. MATERIALITY. The Company and each Stockholder, severally
and not jointly with any other Person, hereby agree that this Article X is a
material and substantial part of the transactions contemplated by this
Agreement.
ARTICLE XI
GENERAL PROVISIONS
Section 11.01. TREATMENT OF CONFIDENTIAL INFORMATION. Each Party will
comply with each covenant for which provision is made in Section 11.01 of the
Uniform Provisions (the text of which Section hereby is incorporated herein by
this reference) to be performed or observed by that Party.
Section 11.02. RESTRICTIONS ON TRANSFERS OF OEI COMMON STOCK.
(a) During the two-year period ending on the second anniversary
of the IPO Closing Date (the "RESTRICTED PERIOD"), no Stockholder
voluntarily will: (i) sell, assign, exchange, transfer, encumber,
pledge, distribute, appoint or otherwise dispose of (A) any shares of
OEI Common Stock (including the Contingent Stock Consideration) received
by any Stockholder in the Merger or (B) any interest in (including any
option to buy or sell) any such shares of OEI Common Stock, in whole or
in part, and OEI will have no obligation to, and shall not, treat any
such attempted transfer as effective for any purpose; or (ii) engage in
any transaction, whether or not with respect to any shares of OEI Common
Stock or any interest therein, the intent or effect of which is to
reduce the risk of owning the shares of OEI Common Stock acquired
pursuant to Section 2.04 (including, for example engaging in put,
18
call, short-sale, straddle or similar market transactions); PROVIDED,
HOWEVER, that this Section 11.02 shall not restrict (x) any transfer of
OEI Common Stock acquired by a Stockholder pursuant to Section 2.04 to
any of that Stockholder's Related Persons who agree in writing to be
bound by the provisions of Section 11.01 and this Section 11.02 or (y)
any transfer pursuant to Section 2.07(d) of Contingent Stock
Consideration to an employee of the Company who agrees in writing to be
bound by the provisions of Section 11.01 and this Section 11.02. The
certificates evidencing the OEI Common Stock delivered to each
Stockholder pursuant to Section 2.05 will bear a legend substantially in
the form set forth below and containing such other information as OEI
may deem necessary or appropriate:
EXCEPT PURSUANT TO THE TERMS OF THE AGREEMENT AND PLAN OF
REORGANIZATION AMONG THE ISSUER, THE HOLDER OF THIS CERTIFICATE
AND THE OTHER PARTIES THERETO, THE SHARES REPRESENTED BY THIS
CERTIFICATE MAY NOT BE VOLUNTARILY SOLD, ASSIGNED, EXCHANGED,
TRANSFERRED, ENCUMBERED, PLEDGED, DISTRIBUTED, APPOINTED OR
OTHERWISE DISPOSED OF, AND THE ISSUER SHALL NOT BE REQUIRED TO
GIVE EFFECT TO ANY ATTEMPTED VOLUNTARY SALE, ASSIGNMENT,
EXCHANGE, TRANSFER, ENCUMBRANCE, PLEDGE, DISTRIBUTION,
APPOINTMENT OR OTHER DISPOSITION OF ANY OF THOSE SHARES, DURING
THE TWO-YEAR PERIOD ENDING ON [DATE THAT IS THE SECOND
ANNIVERSARY OF THE IPO CLOSING DATE] (THE "RESTRICTED PERIOD").
ON THE WRITTEN REQUEST OF THE HOLDER OF THIS CERTIFICATE, THE
ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP
ORDER PLACED WITH THE TRANSFER AGENT) AFTER THE EXPIRATION OF THE
RESTRICTED PERIOD.
(b) Each Stockholder, severally and not jointly with any other
Person, (i) acknowledges that the shares of OEI Common Stock to be
delivered to him pursuant to Section 2.04 (A) have not been and, except
pursuant to the Registration Rights Agreement, if applicable, will not
be registered under the Securities Act and therefore may not be resold
by him without compliance with the Securities Act and (B) will, as a
result of their restrictions on transferability which are imposed by
this Agreement during the Restricted Period, have a value materially
less at the Effective Time than the value of then freely tradeable
shares of OEI Common Stock, and (ii) covenants that none of the shares
of OEI Common Stock issued to him pursuant to Section 2.04 will be
offered, sold, assigned, pledged, hypothecated, transferred or otherwise
disposed of except after full compliance with all the applicable
provisions of the Securities Act and the rules and regulations of the
SEC and applicable state securities laws and regulations. All
certificates evidencing shares of OEI Common Stock issued pursuant to
Section 2.04 will bear the following legend in addition to the legend
prescribed by Section 11.02(a):
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY ONLY BE SOLD OR
OTHERWISE TRANSFERRED IF THE HOLDER HEREOF COMPLIES WITH THAT ACT
AND OTHER APPLICABLE SECURITIES LAWS.
19
In addition, certificates evidencing shares of OEI Common Stock issued
to each Stockholder pursuant to Section 2.04 will bear any legend
required by (i) the securities or blue sky laws of the state in which
that Stockholder resides or (ii) the Underwriter in connection with any
agreement of that Stockholder with the Underwriter to the effect set
forth in Section 11.02(a).
Section 11.03. BROKERS AND AGENTS. The Stockholders jointly and
severally represent and warrant to OEI that the Company has not directly or
indirectly employed or become obligated to pay any broker or similar agent in
connection with the transactions contemplated hereby and agree, without regard
to the Threshold Amount limitations set forth in Article IX, to indemnify OEI
against all Damage Claims arising out of claims for any and all fees and
commissions of brokers or similar agents employed or promised payment by the
Company.
Section 11.04. ASSIGNMENT; NO THIRD PARTY BENEFICIARIES. This Agreement
and the rights of its Parties may not be assigned (except by operation of law)
and shall be binding on and inure to the benefit of the Parties, the successors
of OEI, and the heirs and legal representatives of the Stockholders (and, in the
case of any trust, the successor trustees of the trust). Neither this Agreement
nor any other Transaction Document is intended, or shall be construed, deemed or
interpreted, to confer on any Person not a party hereto or thereto any rights or
remedies hereunder or thereunder, except as provided in Section 6.05(b) or
11.14, in Article IX, or as otherwise provided expressly herein or therein.
Section 11.05. ENTIRE AGREEMENT; AMENDMENT; WAIVERS. This Agreement and
the documents delivered pursuant to it constitute the entire agreement and
understanding among the Parties and supersede all prior agreements and
understandings, both written and oral, relating to the subject matter of this
Agreement. This Agreement may be amended, modified or supplemented, and any
right hereunder may be waived, if, but only if, the amendment, modification,
supplement or waiver is in writing and signed by the Majority Stockholders, the
Company and OEI. The waiver of any of the terms and conditions of this Agreement
shall not be construed or interpreted as, or deemed to be, a waiver of any of
its other term or conditions.
Section 11.06. COUNTERPARTS. This Agreement may be executed in multiple
counterparts, each of which will be an original, but all of which together will
constitute one and the same instrument.
Section 11.07. EXPENSES. Whether or not the transactions contemplated
hereby are consummated, (a) OEI will pay the fees, expenses and disbursements of
OEI and Newco and their Representatives which are incurred in connection with
the subject matter of this Agreement and any amendments to this Agreement
including all costs and expenses incurred in the performance of and compliance
with all conditions to be performed by OEI and Newco under this Agreement,
including the costs of preparing the Registration Statement, (b) the Company may
pay any fees, expenses and disbursements of Counsel for the Company and the
Stockholders incurred in connection with the subject matter of this Agreement
and the Registration Statement on or before the IPO Closing Date, up to a
maximum of $40,000 in the aggregate, and (c) the Stockholders will pay from
personal funds,
20
and not from funds of the Company or any Company Subsidiary, (i) all sales, use,
transfer and other similar taxes and fees (collectively, "TRANSFER TAXES")
incurred in connection with the transactions contemplated hereby, and (ii) the
fees, expenses and disbursements in excess of $40,000 in the aggregate of
Counsel for the Company and the Stockholders incurred in connection with the
subject matter of this Agreement and the Registration Statement on or before the
IPO Closing Date. The Stockholders will file all necessary documentation and
Returns with respect to all Transfer Taxes. In addition, each Stockholder
acknowledges that he, and not the Company, OEI or the Surviving Corporation,
will pay all Taxes due upon receipt of the consideration payable to the
Stockholder pursuant to Article II.
Section 11.08. NOTICES. All notices required or permitted hereunder
shall be in writing, and shall be deemed to be delivered and received (a) if
personally delivered or if delivered by telex, telegram, facsimile or courier
service, when actually received by the Party to whom notice is sent or (b) if
delivered by mail (whether actually received or not), at the close of business
on the third Business Day next following the day when placed in the mail,
postage prepaid, certified or registered, addressed to the appropriate Party or
Parties, at the address of such Party set forth below (or at such other address
as such party may designate by written notice to all other Parties in accordance
herewith):
(i) if to OEI or Newco, addressed to it at:
OEI International, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn.: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
Chief Executive Officer
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice for purposes of
this Agreement) to:
▇▇▇▇▇▇ & ▇▇▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇.
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to the Stockholders, addressed to them at their
respective addresses set forth in Schedule 2.04; and
21
(iii) if to the Company, addressed to it at:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
with copies (which shall not constitute notice for purposes of
this Agreement) to:
▇▇▇ ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
SECTION 11.09. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN
ACCORDANCE, WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO
THE CONFLICTS OF LAW PROVISIONS THEREOF: PROVIDED, HOWEVER, THAT: (A) ARTICLE X
AND THE RIGHTS AND OBLIGATIONS THEREUNDER OF THE PARTIES WILL BE GOVERNED BY AND
CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE SUBSTANTIVE LAWS OF THE STATE OF
TEXAS WITHOUT REGARD TO THE CONFLICTS OF LAW PROVISIONS THEREOF AND (B) MATTERS
PERTAINING SOLELY TO THE LEGALITY AND EFFECTUATION OF THE MERGER SHALL BE
GOVERNED BY THE BUSINESS CORPORATION ACT.
Section 11.10. EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise
provided herein, no delay or omission in the exercise of any right, power or
remedy accruing to any Party as a result of any breach or default hereunder by
any other Party shall impair any such right, power or remedy, nor shall it be
construed, deemed or interpreted as a waiver of or acquiescence in any such
breach or default, or of any similar breach or default occurring later; nor
shall any waiver of any single breach or default be construed, deemed or
interpreted as a waiver of any other breach or default hereunder occurring
before or after that waiver.
Section 11.11. TIME. Time is of the essence in the performance of this
Agreement in all respects.
Section 11.12. REFORMATION AND SEVERABILITY. If any provision of this
Agreement is invalid, illegal or unenforceable, that provision shall, to the
extent possible, be modified in such manner as to be valid, legal and
enforceable but so as to most nearly retain the intent of the Parties as
expressed herein, and if such a modification is not possible, that provision
shall be severed from this Agreement, and in either case the validity, legality
and enforceability of the remaining provisions of this Agreement shall not in
any way be affected or impaired thereby.
22
Section 11.13. REMEDIES CUMULATIVE. Except as otherwise provided in
Section 9.06, no right, remedy or election given by any term of this Agreement
shall be deemed exclusive, but each shall be cumulative with all other rights,
remedies and elections available at law or in equity.
Section 11.14. RESPECTING THE IPO. Each of the Company and the
Stockholders acknowledges and agrees that: (a) no firm commitment, binding
agreement or promise or other assurance of any kind, whether express or implied,
oral or written, exists at the date hereof that the Registration Statement will
become effective or that the IPO will occur at a particular price or within a
particular range of prices or occur at all; (b) neither OEI or any of its
Representatives nor any prospective underwriters in the IPO will have any
liability to the Company, the Stockholders or any of their respective Affiliates
or associates for any failure of (i) the Registration Statement to become
effective (provided, however, that OEI will use its reasonable best efforts to
cause the Registration Statement to become effective prior to October 31, 1998)
or (ii) the IPO to occur at a particular price or within a particular range of
prices or to occur at all; and (c) the decision of Stockholders to enter into
this Agreement, or to vote in favor of or consent to the Merger, has been or
will be made independent of, and without reliance on, any statements, opinions
or other communications of, or due diligence investigations that have been or
will be made or performed by, any prospective underwriter relative to OEI or the
IPO. The Underwriter shall have no obligation to any of the Company and the
Stockholders with respect to any disclosure contained in the Registration
Statement.
Section 11.15. CONSENTS.
(a) The Stockholders, as the owners and holders of all the
Capital Stock of the Company, hereby consent to and approve the Merger
and the plan of merger contemplated by this Agreement pursuant to
Sections 5.03 and 9.10 of the Business Corporation Act.
(b) OEI hereby consents to and approves the Merger and the plan
of merger contemplated by this Agreement pursuant to Sections 5.03 and
9.10 of the Business Corporation Act.
Section 11.16. BOARD OF DIRECTORS. So long as ▇▇▇▇▇▇ is employed by the
Company, OEI agrees that he shall be entitled to serve as a director of the
Company.
Section 11.17. REAL ESTATE MATTERS. At the Closing, ▇▇▇▇▇▇ Enterprises
and the Company will enter into the Lease Agreement and the Right of First
Refusal Agreement.
23
ARTICLE XII
TERMINATION
Section 12.01. TERMINATION OF THIS AGREEMENT.
(a) This Agreement may be terminated at any time prior to the
Closing solely:
(i) by the mutual written consent of OEI and the
Company;
(ii) by the Majority Stockholders or the Company, on the
one hand, or by OEI, on the other hand, if the transactions
contemplated by this Agreement to take place at the Closing shall
not have been consummated by October 31, 1998, unless the failure
of such transactions to be consummated results from the willful
failure of the Party (or in the case of the Stockholders and the
Company, any of them) seeking to terminate this Agreement to
perform or adhere to any agreement required hereby to be
performed or adhered to by that Party prior to or at the Closing
or thereafter on the IPO Closing Date;
(iii) by the Majority Stockholders or the Company, on the
one hand, or by OEI, on the other hand, if a material breach or
default shall be made by the other Party (or in the case of the
Stockholders and the Company, any of them) in the observance or
in the due and timely performance of any of the covenants,
agreements or conditions contained herein; or
(iv) by OEI if it is entitled to do so as provided in
Section 6.07;
(b) This Agreement may be terminated after the Closing solely:
(i) by OEI or the Company if the Underwriting Agreement
is terminated pursuant to its terms after the Closing and prior
to the consummation of the IPO; or
(ii) automatically and without action on the part of any
party hereto if the IPO is not consummated within 15 Business
Days after the date of the Closing.
(c) If this Agreement is terminated pursuant to this Section
12.01, the Merger will be deemed for all purposes to have been abandoned
and of no force or effect. If this Agreement is terminated pursuant to
this Section 12.01 after the Certificate of Merger has been filed with
the Secretary of State of the State of Texas, but before the IPO has
been consummated, OEI will take all actions that Counsel for the Company
and the Stockholders advises OEI are required by the applicable laws of
the State of Texas to rescind the Merger.
24
Section 12.02. LIABILITIES IN EVENT OF TERMINATION. If this Agreement is
terminated pursuant to Section 12.01, there shall be no liability or obligation
on the part of any Party except (a) as provided in Section 11.07, (b) to the
extent that such liability is based on the breach of that Party of any of its or
his representations, warranties or covenants set forth in of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first above written.
OEI INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Chief Executive Officer
GEI ACQUISITION, INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
▇▇▇▇▇▇ ENGINEERING, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, President
STOCKHOLDERS:
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
25
THE ▇▇▇▇▇▇ CHILDREN'S TRUSTS
created under Irrevocable Trust Agreement dated
December 29, 1997:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 1997 Trust; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ 1997 Trust; ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
1997 Trust; and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Co-Trustees
THE ▇▇▇▇▇▇ CHILDREN'S TRUSTS
created under Irrevocable Trust Agreement dated
December 29, 1997:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust; ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ 1997 Trust; ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997
Trust; ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust; ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ 1997 Trust; Chelsea ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ 1997 Trust; and Alexandra ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ 1997 Trust.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Co-Trustees
26
THE JGCG GENERATION-SKIPPING TRUSTS created
under Irrevocable Trust Agreement dated
December 29, 1997 for:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇; ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇; and ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Co-Trustees
The undersigned has executed this Agreement in the space provided below
to reflect her agreement to execute and deliver the Lease Agreement and the
Right of First Refusal Agreement as contemplated by Section 11.17. The
undersigned acknowledges that, but for her agreement as herein set forth, OEI
would not execute and deliver this Agreement, and this undertaking by her is
made to induce OEI to enter into this Agreement.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
27
ADDENDUM 1
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Addendum which are defined in the
captioned Agreement to which this is an Addendum are used herein as therein
defined.
(2) The Founding Companies are:
Chemical & Industrial Engineering, Inc.
▇▇▇▇▇▇ Engineering, Inc.
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇, Inc.
Petrocon Engineering, Inc.
W-Industries, Inc.
SCHEDULE 2.03
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 2.03 are used
herein as therein defined.
(2) The directors of the Surviving Corporation immediately after the
Effective Time are as follows:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
(3) The officers of the Surviving Corporation immediately following the
Effective Time are as follows:
Chairman and Chief Executive Officer ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
President ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President ▇▇▇▇ ▇▇▇▇▇
Secretary and Treasurer ▇▇▇▇▇ ▇▇▇▇▇▇
Assistant Secretary ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
SCHEDULE 2.04
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 2.04 are used
herein as therein defined.
(2) The name and address of each Stockholder are as follows:
NAME ADDRESS
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇ Children's Trusts ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇ Grandchildren's Trusts ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The JGCG Generation-Skipping Trusts ▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(3) Subject to the provisions of Section 2.12, the aggregate Initial
Merger Consideration shall be comprised of (i) $2,786,170 cash (the "CASH
CONSIDERATION"), and (ii) 541,757 shares of OEI Common Stock (the "MERGER
SHARES").
(4) All of the Cash Consideration will be allocated and paid to ▇▇.
▇▇▇▇▇▇. In addition, ▇▇. ▇▇▇▇▇▇ will be allocated a number of the Merger Shares
equal to (i) his Pro Rata Share multiplied times the sum of (x) the amount of
the Cash Consideration divided by $12 plus (y) the number of Merger Shares minus
(ii) the amount in clause (x). The balance of the Merger Shares will be
allocated among the Stockholders other than ▇▇. ▇▇▇▇▇▇ proportionately based
upon their respective Pro Rata Shares. The Pro Rata Shares of the Stockholders
are as follows:
SHARES OF PRE-MERGER PRO RATA
NAME COMPANY COMMON STOCK SHARE
Stockholders:
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 7,100 71.00%
The ▇▇▇▇▇▇ Children's Trusts 300 3.00%
The ▇▇▇▇▇▇ Grandchildren's Trusts 500 5.00%
The JGCG Generation-Skipping Trusts 2,100 21.00%
--------- -----------
TOTAL 10,000 100.00%
SCHEDULE 3.01
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.01 are used
herein as therein defined.
(2) Each Stockholder is an "accredited investor" as defined in
Securities Act Rule 501(a) except for the following:
The ▇▇▇▇▇▇ Children's Trusts created under Irrevocable
Trust Agreement dated December 29, 1997:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
The ▇▇▇▇▇▇ Grandchildren's Trusts created under
Irrevocable Trust Agreement dated December 29, 1997:
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ 1997 Trust
Chelsea ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1997 Trust
Alexandra ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ 1997 Trust
The JGCG Generation-Skipping Trusts created under
Irrevocable Trust Agreement dated December 29, 1997 for:
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE 3.02
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.02 are used
herein as therein defined.
(2) The following table sets forth the ownership of the Company's
Capital Stock:
NUMBER OF
NAME CLASS SHARES OWNED
---- ----- ------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Common 7,100
The ▇▇▇▇▇▇ Children's Trusts Common 300
The ▇▇▇▇▇▇ Grandchildren's Trusts Common 500
The JGCG Generation-Skipping Trusts Common 2,100
(3) No exception is taken to the representations and warranties made in
Section 3.02 of the captioned Agreement.
SCHEDULE 3.07
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 3.07 are used
herein as therein defined.
(2) The Stockholder is, alone or with one or more other Persons, the
controlling Affiliate of the following Entity, business or trade (other than the
Company and the Company Subsidiaries, if the Stockholder is an Affiliate of the
Company) that is (a) engaged in any line of business which is the same as or
similar to any line of business in which the Company or any Company Subsidiary
is engaged or (b) is, or has within the three year period ending on the date of
the captioned Agreement, engaged in any transaction with the Company or any
Company Subsidiary except for (i) transactions in the ordinary course of
business of the Company or that Company Subsidiary and (ii) any single
transaction (or series of related transactions) involving property or services
having a value, or the payment of money, of less than $10,000:
None
SCHEDULE 4.11
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 4.11 are used
herein as therein defined.
(2) The following Related Party Agreements will be permitted to continue
in effect past the date of the Closing in accordance with their terms, subject
to the following provisions of this Schedule:
New Employment Agreement
Lease Agreement
Right of First Refusal Agreement
SCHEDULE 6.03
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.03 are used
herein as therein defined.
None
SCHEDULE 6.04
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.04 are used
herein as therein defined.
(2) The Company and the Company Subsidiaries may make the following
Restricted Payments prior to the Effective Time:
None
SCHEDULE 6.11
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 6.11 are used
herein as therein defined.
(2) The Company will make all arrangements and take all such actions as
are necessary and satisfactory to OEI to dispose, prior to the Effective Time,
of the following assets in the manner indicated below:
Concurrently with the Closing, the Company may transfer to the
Stockholders, in kind (or in cash to the extent such retainings
are collected prior to the Closing) and as taxable boot to the
Stockholders, all or any part of the contract retainages
reflected on the books of the Company on December 29, 1997, and
owed by Chemdesign, Inc. and UMC Petroleum Corporation,
respectively.
SCHEDULE 8.05
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 8.05 are used
herein as therein defined.
(2) At or within 10 days following the Effective Time, OEI will cause
the following Stockholder Guarantees to be terminated:
Guarantees by ▇▇▇▇▇▇ of working capital loans from Sterling Bank
to the Company made pursuant to the Credit Loan Agreement dated
March 6, 1998 among Sterling Bank, the Company and ▇▇▇▇▇▇.
SCHEDULE 10.01
to the
Agreement and Plan of Reorganization
dated as of April 10, 1998
among
OEI International, Inc.
GEI Acquisition, Inc.
▇▇▇▇▇▇ Engineering, Inc.
and
the Stockholders Named Therein
(1) Words and terms used in this Schedule which are defined in the
captioned Agreement to which this Schedule is attached as Schedule 10.01 are
used herein as therein defined.
(2) Each of the Stockholders (other than ▇▇▇▇▇▇) is a Restricted
Stockholder and subject to all the restrictions set forth in Section 10.01 of
the captioned Agreement.