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EXHIBIT 2
AMENDED AND RESTATED
AGREEMENT AND PLAN OF MERGER
DATED AS OF NOVEMBER 14, 2000,
AMONG
BRACKNELL CORPORATION,
BRACKNELL ACQUISITION CORPORATION,
AND
ABLE TELCOM HOLDING CORP.
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TABLE OF CONTENTS
Page
ARTICLE I. INTERPRETATION............................................................................. 6
ARTICLE II. THE MERGER................................................................................. 16
SECTION 2.01 The Merger........................................................................... 16
SECTION 2.02 Conversion/Issuance of Shares........................................................ 17
SECTION 2.03 Surrender and Payment................................................................ 18
SECTION 2.04 Adjustments.......................................................................... 20
SECTION 2.05 Fractional Shares.................................................................... 20
SECTION 2.06 Dissenting Shares.................................................................... 21
ARTICLE III. THE SURVIVING CORPORATION.................................................................. 22
SECTION 3.01 Certificate of Incorporation......................................................... 22
SECTION 3.02 Bylaws............................................................................... 22
SECTION 3.03 Directors and Officers............................................................... 22
ARTICLE IV. REPRESENTATIONS AND WARRANTIES OF ABLE..................................................... 22
SECTION 4.01 Corporate Existence and Power........................................................ 22
SECTION 4.02 Corporate Authorization.............................................................. 23
SECTION 4.03 Governmental Authorization........................................................... 23
SECTION 4.04 Non-Contravention.................................................................... 23
SECTION 4.05 Capitalization....................................................................... 24
SECTION 4.06 Subsidiaries......................................................................... 25
SECTION 4.07 SEC Filings.......................................................................... 25
SECTION 4.08 Financial Statements................................................................. 26
SECTION 4.09 Proxy Statement/Prospectus; Registration Statement................................... 26
SECTION 4.10 Absence of Certain Changes........................................................... 26
SECTION 4.11 No Undisclosed Material Liabilities.................................................. 28
SECTION 4.12 Real Property........................................................................ 29
SECTION 4.13 Personal Property.................................................................... 31
SECTION 4.14 Accounts Receivable.................................................................. 31
SECTION 4.15 Contracts............................................................................ 32
SECTION 4.16 Litigation........................................................................... 32
SECTION 4.17 Taxes ............................................................................... 32
SECTION 4.18 Tax Free Merger...................................................................... 33
SECTION 4.19 ERISA ............................................................................... 34
SECTION 4.20 Environmental Matters................................................................ 36
SECTION 4.21 Intellectual Property................................................................ 37
SECTION 4.22 Employees............................................................................ 37
SECTION 4.23 Intercompany Agreements.............................................................. 38
SECTION 4.24 Certain Payments..................................................................... 38
SECTION 4.25 Customers and Suppliers.............................................................. 38
SECTION 4.26 Canadian Competition Act............................................................. 38
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SECTION 4.27 Rights Plan.......................................................................... 38
SECTION 4.28 Compliance With Other Applicable Laws................................................ 39
SECTION 4.29 Insurance............................................................................ 39
SECTION 4.30 Broker's Fees........................................................................ 40
SECTION 4.31 Vote Required........................................................................ 40
ARTICLE V. REPRESENTATIONS AND WARRANTIES OF BRACKNELL AND SUBCO...................................... 40
SECTION 5.01 Corporate Existence and Power........................................................ 40
SECTION 5.02 Corporate Authorization.............................................................. 41
SECTION 5.03 Governmental Authorization........................................................... 41
SECTION 5.04 Non-Contravention.................................................................... 41
SECTION 5.05 Capitalization....................................................................... 42
SECTION 5.06 Canadian Securities Law and Bracknell Financial Statements........................... 43
SECTION 5.07 Proxy Statement/Prospectus; Registration Statement................................... 44
SECTION 5.08 No Undisclosed Material Liabilities.................................................. 44
SECTION 5.09 Absence of Certain Changes........................................................... 45
SECTION 5.10 Litigation........................................................................... 45
SECTION 5.11 Taxes ............................................................................... 46
SECTION 5.12 Tax Free Merger...................................................................... 46
SECTION 5.13 Compliance With Other Applicable Laws................................................ 48
SECTION 5.14 Brokers.............................................................................. 48
SECTION 5.15 Certain Payments..................................................................... 48
SECTION 5.16 Interim Operations of Subco.......................................................... 48
SECTION 5.17 Authorization for Bracknell Common Stock............................................. 49
ARTICLE VI. COVENANTS OF ABLE.......................................................................... 49
SECTION 6.01 Conduct of Able...................................................................... 49
SECTION 6.02 Stockholder Meeting.................................................................. 50
SECTION 6.03 Access to Information................................................................ 50
SECTION 6.04 Other Offers......................................................................... 51
SECTION 6.05 Notice of Certain Events............................................................. 53
SECTION 6.06 Affiliates........................................................................... 53
SECTION 6.07 Litigation........................................................................... 54
SECTION 6.08 Officers............................................................................. 54
SECTION 6.09 Certain Rights to Acquire Shares..................................................... 54
SECTION 6.10 Bracknell Option..................................................................... 54
SECTION 6.11 Employee Stock Options............................................................... 54
SECTION 6.12 Support Agreements from Series C Stockholders........................................ 54
SECTION 6.13 Sale of Businesses................................................................... 55
SECTION 6.14 World Com Series E Debt.............................................................. 55
SECTION 6.15 Canadian Competition Act............................................................. 55
SECTION 6.16 Opinion of Financial Advisor......................................................... 55
SECTION 6.17 Bankruptcy and Insolvency Proceedings................................................ 55
ARTICLE VII. COVENANTS OF BRACKNELL AND SUBCO........................................................... 56
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SECTION 7.01 Conduct of Bracknell and Subco....................................................... 56
SECTION 7.02 Access to Information................................................................ 56
SECTION 7.03 Obligations of Subco................................................................. 57
SECTION 7.04 Stock Exchange Listing............................................................... 57
SECTION 7.05 Notice of Certain Events............................................................. 57
SECTION 7.06 Financing Relating to the Merger..................................................... 57
SECTION 7.08 Opinion of Financial Advisor......................................................... 57
ARTICLE VIII. COVENANTS OF BRACKNELL AND ABLE............................................................ 58
SECTION 8.01 Commercially Reasonable Best Efforts................................................. 58
SECTION 8.02 Certain Filings...................................................................... 58
SECTION 8.03 Public Announcements................................................................. 59
SECTION 8.04 Further Assurances................................................................... 59
SECTION 8.05 Preparation of the Proxy Statement/Prospectus and Registration Statement............. 59
ARTICLE IX. CONDITIONS TO THE MERGER................................................................... 60
SECTION 9.01 Conditions to the Obligations of Each Party.......................................... 60
SECTION 9.02 Additional Conditions Precedent to the Obligations of Bracknell...................... 60
SECTION 9.03 Additional Conditions Precedent to the Obligations of Able........................... 63
ARTICLE X. TERMINATION................................................................................ 64
SECTION 10.01 Termination by Bracknell or Able................................................. 64
SECTION 10.02 Termination by Able.............................................................. 66
SECTION 10.03 Termination by Bracknell......................................................... 66
SECTION 10.04 Effect of Termination............................................................ 66
ARTICLE XI. MISCELLANEOUS.............................................................................. 67
SECTION 11.01 Notices.......................................................................... 67
SECTION 11.02 Survival of Representations and Warranties....................................... 69
SECTION 11.03 Amendments; No Waivers........................................................... 69
SECTION 11.04 Fees and Expenses................................................................ 70
SECTION 11.05 Successors and Assigns........................................................... 70
SECTION 11.06 Governing Law.................................................................... 70
SECTION 11.07 Counterparts; Effectiveness...................................................... 70
SECTION 11.08 Entire Agreement................................................................. 71
SECTION 11.09 Exhibits and Schedules........................................................... 71
SECTION 11.10 Headings......................................................................... 71
SECTION 11.11 Severability of Provisions....................................................... 71
EXHIBITS
Exhibit A Form of Warrant
Exhibit B Form of Option
Exhibit C Support Agreement from Series C Stockholders
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Exhibit D Commitment Agreement
Exhibit E Support Agreements with Directors and Officers
Exhibit F Amended and Restated Master Services Agreement
Exhibit G Form of Opinion - Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
Exhibit H Form of Opinion - Torys
Exhibit I Terms of Series E Shares
SCHEDULES
Schedule 2.02(e) Stock Appreciation Rights
Schedule 2.02(g) Bracknell Common Stock to be Issued to the Palladin Group.
Schedule 2.02(h) Bracknell Common Stock to be Issued to the Series C Stockholders
Schedule 2.02(j) Able Warrants to be Converted into Bracknell Warrants
Schedule 4.04 Non-Contravention
Schedule 4.05(a)(i) Options Inside and Outside Able Stock Option Plan
Schedule 4.05(a)(ii) Additional Options, Warrants and Other Rights
Schedule 4.05(a)(iii) Stock or Rights to Acquire Stock to be Issued after
August 23, 2000
Schedule 4.05(a)(iv) Phantom Stock and Stock Appreciation Rights
Schedule 4.05(b) Redemption Rights
Schedule 4.05(c) Stockholder Agreements
Schedule 4.06(i) Subsidiaries
Schedule 4.06(ii) Subsidiary Stock
Schedule 4.06(iii) Ownership of Subsidiary Stock
Schedule 4.07(b) SEC Filings
Schedule 4.10 Absence of Certain Changes
Schedule 4.10(m) Severances
Schedule 4.11 Liabilities
Schedule 4.12(a) Owned Real Property
Schedule 4.12(b) Leased Real Property
Schedule 4.12(c) Easements
Schedule 4.12(d) Real Property subject to a Lease, Sublease, License or
other Agreement
Schedule 4.12(g) Title Policies
Schedule 4.13(b) Leased Personal Property
Schedule 4.14 Accounts Receivable
Schedule 4.15(i) Material Contracts
Schedule 4.15(ii) Material Breaches of Contracts
Schedule 4.16 Able Litigation
Schedule 4.17(i) Filing of Tax Returns
Schedule 4.17(ii) Tax Deficiencies
Schedule 4.17(iii) Deferred Intercompany Transactions
Schedule 4.17(iv) Tax Audits
Schedule 4.19(a) Employee Plans
Schedule 4.19(h) Severance Pay
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Schedule 4.20 Environmental Matters
Schedule 4.21 Intellectual Property Claims
Schedule 4.22 Collective Bargaining/Labor Union Agreements
Schedule 4.23 Intercompany Agreements
Schedule 4.28 Compliance with Laws
Schedule 4.30 Bonds
Schedule 4.32 Broker's Fees
Schedule 5.04 Non-Contravention
Schedule 5.05(a) Existing Options, Warrants or other Rights
Schedule 5.05(b) Capital Stock and Ownership Interests
Schedule 5.08 Liabilities
Schedule 5.09 Absence of Certain Changes
Schedule 5.10 Bracknell Litigation
Schedule 5.11(i) Tax Returns
Schedule 5.11(ii) Tax Deficiencies
Schedule 5.13 Compliance with Laws
Schedule 5.14 Broker's Fees
Schedule 6.01(e) Permitted Issuance of Securities
Schedule 6.09 Former Stockholders of GEC, SASCO and SES
Schedule 9.02(c) Officers, Directors and other Signatories to Support Agreements
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AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER
AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER, dated as of November
14, 2000, among Bracknell Corporation, an Ontario corporation ("Bracknell"),
Bracknell Acquisition Corporation, a Florida corporation and a wholly owned
subsidiary of Bracknell ("Subco"), and Able Telcom Holding Corp., a Florida
corporation ("Able").
WHEREAS, Bracknell, Subco and Able entered into the Agreement and Plan
of Merger, dated August 23, 2000 (the "Original Merger Agreement"), which
provided for the merger of Subco with and into Able;
WHEREAS, Bracknell, Subco and Able have agreed to amend and restate the
Original Merger Agreement, with effect as of and from the date of the Original
Merger Agreement;
WHEREAS, the Boards of Directors of Bracknell, Subco and Able each have
determined that it is in the best interests of their respective stockholders for
Subco to merge with and into Able (the "Merger") upon the terms and subject to
the conditions of this Agreement; and
WHEREAS, for U.S. federal income tax purposes, it is intended that the
Merger shall qualify as a reorganization within the meaning of Section 368(a) of
the Code (as defined below).
NOW, THEREFORE, the parties hereto, for good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
intending to be legally bound, hereby covenant and agree that the Original
Merger Agreement shall be and is hereby amended and restated as hereinafter set
forth:
ARTICLE I
DEFINITIONS
For purposes of this Agreement, the capitalized terms used in this
Agreement shall have the meanings set forth below:
"Able" shall have the meaning set forth in the preface above.
"Able Authorized Capital Stock" shall have the meaning set forth in
Section 4.05(a).
"Able Employees" shall have the meaning set forth in Section 4.22.
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"Able's Knowledge" means the actual knowledge, after making due
inquiry, of the following officers of Able and its Subsidiaries: ▇▇▇▇▇ ▇. ▇▇▇,
▇▇▇▇▇ Brands, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇▇▇▇▇.
"Able Material Adverse Change" shall have the meaning set forth in
Section 4.01.
"Able Material Adverse Effect" shall have the meaning set forth in
Section 4.01.
"Able Preferred Stock" shall have the meaning set forth in Section
4.05(a).
"Able SEC Filings" shall have the meaning set forth in Section 4.07(a).
"Able Securities" means any equity, debt or other securities issued by
Able, or rights to acquire such securities.
"Able Shares" shall have the meaning set forth in Section 2.02(b).
"Able Significant Subsidiary" shall have the meaning set forth in
Section 4.01.
"Able Stock Options" shall have the meaning set forth in Section
4.05(a).
"Able Stockholder Meeting" shall have the meaning set forth in Section
6.02.
"Able Subsidiary Securities" means any equity, debt or other securities
issued by a Subsidiary of Able, or rights to acquire such securities.
"Able Warrants" shall have the meaning set forth in Section 2.02(j).
"Able 10-K" shall have the meaning set forth in Section 4.07(a).
"Accounts Receivable" means all accounts receivable, trade receivables,
notes receivable and other receivables, which in any case are payable as a
result of goods sold or services provided, or billed for, in connection with the
Business.
"Acquisition Proposal" shall have the meaning set forth in Section
6.04(a).
"Action" means any action, suit, arbitration, inquiry, proceeding or
investigation by or before any Governmental Authority or arbitrator.
"Affiliate" means, with respect to any Person, any other Person
controlling, controlled by, or under common control with such Person. For
purposes of this Agreement, the term "control" (including, with correlative
meanings, the terms "controlled by" and "under common control with" as used with
respect to any Person) means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and policies of such
Person whether through ownership of voting securities, by contract or otherwise.
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"Agreement" means this Agreement together with the attached Appendices,
Schedules and Exhibits.
"Authorized Bracknell Capital Stock" shall have the meaning set forth
in Section 5.05(a).
"Benefit Arrangement" shall have the meaning set forth in Section
4.19(g).
"Bracknell" shall have the meaning set forth in the preface above.
"Bracknell Common Stock" shall have the meaning set forth in Section
2.02(b).
"Bracknell Disclosure Documents" shall have the meaning set forth in
Section 5.06(a).
"Bracknell Material Adverse Change" shall have the meaning set forth in
Section 5.01.
"Bracknell Material Adverse Effect" shall have the meaning set forth in
Section 5.01.
"Bracknell Option" shall have the meaning set forth in Section 6.10.
"Bracknell's Knowledge" means the actual knowledge, after making due
inquiry, of any of the following officers of Bracknell: ▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇.
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ and the
President of each of Bracknell's customer categories as of the date hereof.
"Bracknell Stock Options" shall have the meaning set forth in Section
5.05(a).
"Bracknell Voting Debt" shall have the meaning set forth in Section
5.05(b).
"Bracknell Warrants" shall have the meaning set forth in Section
2.02(j).
"Business" means (a) with respect to Able or its Subsidiaries, all
business conducted by Able or any of its Subsidiaries prior to the Closing Date,
and (b) with respect to Bracknell and its Subsidiaries, all business conducted
by Bracknell or any of its Subsidiaries prior to the Closing Date.
"Canadian GAAP" means Canadian generally accepted accounting principles
in effect at the time and applied on a basis consistent with past periods.
"Closing" means the consummation of the Merger and the other
transactions contemplated hereby.
"Closing Date" shall have the meaning set forth in Section 2.01(c).
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"Code" means the U.S. Internal Revenue Code of 1986, as amended from
time to time, and the rules and regulations promulgated thereunder.
"Conversion Number" shall have the meaning set forth in Section
2.02(b).
"Dissenting Shares" shall have the meaning set forth in Section
2.06(a).
"Dolcenea" shall have the meaning set forth in Section 2.02(i).
"Dollars" or "$" means lawful currency of the U.S., unless otherwise
specified.
"Easement" shall have the meaning set forth in Section 4.12(c).
"Easement Contract" shall have the meaning set forth in Section
4.12(c).
"Effective Time" shall have the meaning set forth in Section 2.01(c).
"Employee Plans" shall have the meaning set forth in Section 4.19(a).
"Environment" means all air (including indoor air), surface water
(including navigable waters, ocean waters, streams, ponds, drainage basins, and
wetlands), groundwater, drinking water supplies, land and soil (surface or
subsurface), any other environmental medium, all plant and animal life, biota
and all other natural resources.
"Environmental Claim" means any and all Actions, Orders, claims, Liens,
notices, notices of violation, investigations, complaints, requests for
information, proceedings or other communications (written or oral), whether
criminal or civil, pursuant to or relating to any applicable Environmental Law
by any Person (including any Governmental Authority or citizen's group) based
upon, alleging, asserting, or claiming any actual or potential (i) violation of
or liability under any Environmental Law, (ii) violation of or liability under
any Environmental Permit, or (iii) liability for investigation costs, cleanup
costs, removal costs, remediation costs, response costs, natural resource
damages, property damage, personal injury, fines or penalties arising out of,
based on, resulting from, or relating to the presence, Release, or threatened
Release in or into the Environment, of any Hazardous Materials at any location,
including any off-Site location to which Hazardous Materials or materials
containing Hazardous Materials were sent for handling, recycling, storage,
treatment or disposal.
"Environmental Cleanup Site" means any location which is listed or
proposed for listing on the National Priorities List, the Comprehensive
Environmental Response, Compensation and Liability Information System, or on any
similar list maintained by any jurisdiction of sites requiring investigation or
cleanup, or which is the subject of any pending or threatened Action related to
or arising from any alleged violation of any Environmental Law.
"Environmental Law" means any Law governing or relating to pollution,
protection of human health or the Environment, air emissions, water discharges,
hazardous or toxic substances, solid or hazardous waste, or occupational health
and safety, or any similar Law of foreign jurisdictions where Able or its
Subsidiaries do business, including without limitation
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the U.S. Federal Water Pollution Control Act, the U.S. Clean Air Act, the U.S.
Solid Waste Disposal Act as amended by the Resource Conservation and Recovery
Act (RCRA), the Hazardous Materials Transportation Act (HMTA), the Federal
Insecticide, Fungicide, and Rodenticide Act (FIFRA), the U.S. Comprehensive
Environmental Response, Compensation and Liability Act (CERCLA), as amended by
the Superfund Amendment and Reauthorization Act (▇▇▇▇), the U.S. Emergency
Planning and Community Right-To-Know Act (EPCRA), the U.S. Toxic Substances
Control Act (TSCA), the U.S. Safe Drinking Water Act (SDWA), and the U.S.
Occupational Safety and Health Act (OSHA), all as amended, and the rules and
regulations thereunder as interpreted by Governmental Authorities.
"Environmental Permit" means any Permit relating to any Environmental
Law and includes any and all Orders, consents, or settlements issued by or
entered into with a Governmental Authority under any Environmental Law.
"ERISA" shall have the meaning set forth in Section 4.19(a).
"Exchange Act" means the U.S. Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Exchange Agent" shall have the meaning set forth in Section 2.03(a).
"Exchange Filing Requirements" shall have the meaning set forth in
Section 5.06(a).
"Florida General Corporation Law" means the general corporation laws of
the State of Florida.
"GAAP" means U.S. generally accepted accounting principles in effect at
the time and applied on a basis consistent with past periods.
"GEC" means Georgia Electric Company.
"Governmental Authority" means, with respect to any country, any
federal, state, provincial, or local government, any of its subdivisions,
agencies, authorities, commissions, boards, bureaus or other governmental
entity, and any federal, state, provincial or local court or tribunal and any
arbitrator.
"Hazardous Material" means petroleum, petroleum hydrocarbons or
petroleum products, petroleum by-products, radioactive materials, asbestos or
asbestos-containing materials, gasoline, diesel fuel, pesticides, radon, urea
formaldehyde, lead or lead-containing materials, polychlorinated biphenyls, and
any other chemicals, materials, substances or wastes in any amount or
concentration which are categorized, classified, defined as or included in the
definition of "hazardous substances," "hazardous materials," "hazardous wastes,"
"toxic substances," "toxic pollutants," "pollutants," "regulated substances,"
"solid wastes," or "contaminants" under any Environmental Law.
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"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of
1976, as amended, and the regulations promulgated thereunder.
"Intellectual Property" means trademarks, service marks, patents,
patent applications, software, registered copyrights and applications therefor,
together with trade secrets, know-how and other similar property whether
registered or unregistered.
"Intellectual Property Assets" shall have the meaning set forth in
Section 4.21.
"Law" means, with respect to any country, any federal, state,
provincial, local or other statute, rule, regulation or ordinance, and any
requirement or obligation under common law.
"Lease" means any lease or sublease of real or personal property.
"Leased Personal Property" shall have the meaning set forth in Section 4.13(b).
"Leased Real Property" shall have the meaning set forth in Section
4.12(b).
"Liability" means any debt, obligation, duty or liability of any nature
(including any undisclosed, unfixed, unliquidated, unsecured, unmatured,
unaccrued, unasserted, contingent, conditional, inchoate, implied, vicarious,
joint, several or secondary liability), regardless of whether such debt,
obligation, duty or liability would be required to be disclosed on a balance
sheet prepared in accordance with GAAP or Canadian GAAP.
"Lien" means any lien, mortgage, deed of trust, security interest,
charge, pledge, retention of title agreement, easement, encroachment, condition,
reservation, covenant or other encumbrance affecting title or the use, benefit
or value of the asset in question.
"Material Contracts" shall have the meaning set forth in Section 4.15.
"Material Lease" means (i) all Leases relating to the Leased Real
Property and (ii) a Lease relating to Leased Personal Property involving a term
of more than one (1) year or rental obligations exceeding $100,000 per annum.
"Material Litigation" means any Action (involving Able or any of its
Subsidiaries) by any Person or by or before any Governmental Authority that
involves claims in excess of $1,000,000 or that could reasonably be expected to
result in an Able Material Adverse Change or an Able Material Adverse Effect.
"Merger" shall have the meaning set forth in the preface above.
"Merger Consideration" shall have the meaning set forth in Section
2.02(b).
"Option Recipients" shall have the meaning set forth in Section 7.08.
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"Order" means any order, judgment, injunction, decree, determination or
award of any Governmental Authority or arbitrator.
"Original Merger Agreement" shall have the meaning set forth in the
preface above.
"Other Applicable Law" means any Law applicable to the Business other
than an Environmental Law or a law relating to (a) Taxes or (b) ERISA.
"Owned Real Property" shall have the meaning set forth in Section
4.12(a).
"Permit" means any permit, license, certificate (including a
certificate of occupancy), registration, authorization, consent, or approval
issued by a Governmental Authority.
"Permitted Liens" means (a) Liens for Taxes that are not yet due and
payable or that are being contested in good faith by appropriate proceedings and
as to which adequate reserves have been established in accordance with GAAP or
Canadian GAAP, as the case may be, consistently applied, (b) workers',
repairmens' and similar Liens imposed by Law that have been incurred in the
ordinary course of business and consistent with past practice which in the
aggregate will not have an Able Material Adverse Effect or Bracknell Material
Adverse Effect, as the case may be, (c) Liens and other title defects,
easements, encroachments and encumbrances that do not, individually or in the
aggregate, materially impair the value or continued use of the property (as
currently used) to which they relate, (d) the rights of others to customer
deposits which in the aggregate will not have an Able Material Adverse Effect or
Bracknell Material Adverse Effect, as the case may be, (e) any of the Liens
described in the foregoing clauses (a) through (d) of this definition incurred
in the ordinary course of business and consistent with past practice, after the
date hereof which in the aggregate will not have an Able Material Adverse Effect
or Bracknell Material Adverse Effect, as the case may be, and (f) any Liens
relating to that certain Credit Agreement by and among Able, the Lenders (as
defined therein) from time to time parties thereto, and Bank of America N.A.
(successor to NationsBank N.A.), as amended from time to time, (g) Liens of
Governmental Authorities which are parties to rights of way or easement
agreements with Able or its Subsidiaries, except for any Liens which result from
a default under or breach by Able or its Subsidiaries of such agreements, and
(h) any Liens obtained by Able or its Subsidiaries that sureties may have
pursuant to surety bonds obtained by Able or its Subsidiaries, provided that
Able or its Subsidiaries are not in default under the contracts (or indemnity
agreements) that those bonds relate to.
"Person" means an individual, a corporation, a partnership, an
association, a trust or any other entity or organization, including a government
or political subdivision or any agency or instrumentality thereof.
"Platinum" shall have the meaning set forth in Section 2.02(i).
"Proxy Statement/Prospectus" shall have the meaning set forth in
Section 4.09.
"Real Property" shall have the meaning set out in Section 4.12(d).
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"Registration Statement" shall have the meaning set forth in Section
4.09.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing of a
Hazardous Material into the Environment.
"Replacement Options" shall have the meaning set forth in Section 7.08.
"Returns" means all returns, reports, declarations or other filings
that must be filed with any Governmental Authority with respect to Taxes.
"SASCO" means Southern Aluminum & Steel Corporation.
"SEC" means the U.S. Securities and Exchange Commission.
"Securities Act Affiliate" shall have the meaning set forth in Section
6.06.
"Securities Act Affiliate Agreement" shall have the meaning set forth
in Section 6.06.
"Securities Act of 1933" means the U. S. Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
"Series C Conversion Number" shall have the meaning set forth in
Section 2.02(h).
"Series C Shares" shall have the meaning set forth in Section 2.02(h).
"Series C Stockholders" means Halifax Fund, L.P., The Gleneagles Fund
Company, Palladin Overseas Fund Limited, Palladin Partner I, L.P., Lancer
Securities (Cayman) Limited, PGEP III, LLC, and Quatro Fund Limited.
"Series E Conversion Number" shall have the meaning set forth in
Section 2.02(d).
"Series E Shares" shall have the meaning set forth in Section 2.02(d).
"SES" means Specialty Electronic Systems, Inc.
"Sirit" means Sirit Technologies, Inc.
"Sirit Settlement" means the agreement dated July 7, 2000 between Able,
Sirit and certain other parties entered into to settle certain outstanding
litigation between them.
"Site" means any of the real properties currently or previously owned,
leased or operated by Able or its Subsidiaries for purposes of conducting their
Business, including the Owned Real Property and the Leased Real Property.
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"Subco" shall have the meaning set forth in the preface
above.
"Subco Common Stock" shall have the meaning set forth in
Section 2.01(a).
"Subsidiary" of a party means any corporation or other
organization, whether incorporated or unincorporated, of which such party or
any Subsidiary of such party is a general partner or of which such party or one
or more of its Subsidiaries or such party and one or more of its Subsidiaries,
directly or indirectly, owns or controls 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 functions with
respect to such corporation or other organization.
"Superior Proposal" shall have the meaning set forth in
Section 6.04(a).
"Surviving Corporation" shall have the meaning set forth in
Section 2.01(b).
"Tax" or "Taxes" means all federal, state, county, local and
foreign taxes (including, without limitation, income, profits, premium,
estimated, excise, sales, use, occupancy, gross receipts, franchise, ad
valorem, severance, capital levy, production, transfer, withholding,
employment, unemployment compensation, payroll related and property taxes and
import duties), whether or not measured in whole or in part by net income, and
including deficiencies, interest, additions to tax or interest, and penalties
with respect thereto.
"Title Policies" shall have the meaning set forth in Section
4.12(g).
"TSE" shall have the meaning set forth in Section 2.05.
"U.S." means the United States of America.
"Violation" shall have the meaning set forth in Section 4.04.
"Voting Debt" shall have the meaning set forth in Section
4.05(b).
"WorldCom" means WorldCom, Inc. or one of its Subsidiaries,
as the context requires.
"WorldCom Equity Interest" shall have the meaning set forth
in Section 2.02(e).
"WorldCom Series E Debt" shall have the meaning set forth in
Section 6.14.
ARTICLE II
THE MERGER
SECTION 2.01 The Merger.
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(a) Immediately prior to the Effective Time, Bracknell
shall contribute the Merger Consideration to Subco in exchange for
common stock of Subco (the "Subco Common Stock").
(b) At the Effective Time, Subco shall be merged with and
into Able in accordance with the Florida General Corporation Law,
whereupon the separate existence of Subco shall cease, and Able shall
be the surviving corporation (the "Surviving Corporation").
(c) As soon as practicable after satisfaction or, to the
extent permitted hereunder, waiver of all conditions to the Merger,
Subco and Able will file a certificate of merger with the Secretary of
State of the State of Florida and make all other filings or recordings
required by the Florida General Corporation Law in connection with the
Merger. The Closing will take place at the offices of Torys, ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, unless another place is agreed
to in writing by the parties hereto. The Merger shall become effective
at such time as the certificate of merger is duly filed with the
Secretary of State of the State of Florida or at such later time as is
specified in the certificate of merger (the "Effective Time"). The
date of the Closing is referred to herein as the "Closing Date".
(d) From and after the Effective Time, the Surviving
Corporation shall possess all the assets (except for the Merger
Consideration which the Able stockholders and others are entitled to
receive), rights, privileges, powers and franchises and be subject to
all of the liabilities, restrictions, disabilities and duties of Able
and Subco, all as provided under the Florida General Corporation Law.
SECTION 2.02 Conversion/Issuance of Shares. At the Effective
Time:
(a) Each issued and outstanding share of Subco Common
Stock, shall, by virtue of the Merger and without any action on the
part of Bracknell, Subco or Able, be converted into one fully paid and
non-assessable share of common stock of the Surviving Corporation.
(b) Except as set forth in Section 2.06, each share of
common stock, par value $.001 per share, of Able ("Able Shares"),
issued and outstanding immediately prior to the Effective Time (other
than (i) Able Shares held by Able and (ii) Able Shares held by
Bracknell or Subco) shall, by virtue of the Merger and without any
action on the part of Bracknell, Subco, Able or any holder thereof, be
converted into the right to receive 0.6 (the "Conversion Number") of a
fully paid and non-assessable common share of Bracknell (the
"Bracknell Common Stock"). The Bracknell Common Stock to be issued
pursuant to this Section 2.02(b), Section 2.02(d), Section 2.02(f),
Section 2.02(g), Section 2.02(h) and Section 2.02(i), together with
the warrants described in Section 2.02(e), is referred to herein as
the "Merger Consideration."
(c) Each Able Share held by Able, Bracknell or Subco
shall be cancelled and extinguished without any consideration
therefor.
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(d) Each of the Series E Convertible Preferred Shares,
par value $0.10, of Able (the "Series E Shares") issued and
outstanding immediately prior to the Effective Time (other than (i)
Series E Shares held by Able and (ii) Series E Shares held by
Bracknell or Subco) shall be converted into the right to receive the
number of shares of Bracknell Common Stock determined by dividing the
aggregate face value of all Series E Shares by $8.25 Canadian dollars
and then dividing that quotient by the number of Series E Shares
issued and outstanding immediately before the Effective Time (the
"Series E Conversion Number"). For the purposes of this calculation,
the exchange rate between U.S. dollars and Canadian dollars shall be
the exchange rate published by the Bank of Canada at the close of
business on the day before the Closing Date.
(e) The stock appreciation rights described on Schedule
2.02(e) (or, if such stock appreciation rights have been exchanged for
options to acquire Able Shares, such options) (the "WorldCom Equity
Interest") shall be converted into warrants to purchase 1,200,000
shares of Bracknell Common Stock at an exercise price of $11.66 per
share in cash. The terms of such warrants shall otherwise be as set
forth in Exhibit A.
(f) Bracknell shall issue to Sirit the number of shares
of Bracknell Common Stock that Sirit is entitled to receive under the
terms of the Sirit Settlement or as otherwise agreed by Bracknell and
Sirit.
(g) In satisfaction of their entitlement to receive
1,057,031 Able Shares pursuant to Amendment No. 1 to the Securities
Exchange Agreement and Related Registration Rights Agreement of Able
Telcom Holding Corp., by and among Able and the Persons listed on
Schedule 2.02(g), dated July 7, 2000, Bracknell shall issue an
aggregate of 634,218 shares of Bracknell Common Stock to the Persons
and in the amounts set forth in Schedule 2.02(g).
(h) Each of the Series C Convertible Preferred Shares,
par value $0.10, of Able (the "Series C Shares") issued and
outstanding immediately prior to the Effective Time (other than (i)
Series C Shares held by Able and (ii) Series C Shares held by
Bracknell or Subco) shall be converted into the right to receive the
number of shares of Bracknell Common Stock determined by dividing
$18,000,000 by $4.00, multiplying the result by 0.6, and then dividing
that product by the number of Series C Shares issued and outstanding
immediately before the Effective Time (the "Series C Conversion
Number").
(i) Bracknell shall issue to Platinum Advisory Services,
Inc. ("Platinum") and L. Dolcenea, Inc. ("Dolcenea") the aggregate
number of shares of Bracknell Common Stock that they are entitled to
receive pursuant to the letter agreement between Able, Platinum and
Dolcenea, dated October 18, 2000.
(j) The warrants to purchase Able Shares set forth in
Schedule 2.02(j) (the "Able Warrants") shall become warrants to
purchase shares of Bracknell Common Stock (the "Bracknell Warrants")
subject to the following terms and conditions: (i) each Bracknell
Warrant shall be exercisable to purchase the number of shares of
Bracknell Common Stock equal to the number of Able Shares the
corresponding Able Warrant was
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exercisable to purchase multiplied by 0.6; (ii) the exercise price of
each Bracknell Warrant shall be the exercise price of the
corresponding Able Warrant multiplied by 1.67; and(iii) as of the
Effective Time, the unexpired term of each Bracknell Warrant shall be
equal to the unexpired term of the corresponding Able Warrant.
SECTION 2.03 Surrender and Payment.
(a) Prior to the Effective Time, Bracknell shall appoint
an agent reasonably acceptable to Able (the "Exchange Agent") for the
purpose of exchanging certificates representing Able Shares, Series C
Shares, and Series E Shares. As of the Effective Time, Subco shall
deposit with the Exchange Agent for the benefit of the holders of Able
Shares, Series C Shares and Series E Shares, for exchange in
accordance with this Section 2.03, through the Exchange Agent,
certificates representing the shares of Bracknell Common Stock
issuable pursuant to Section 2.02 in exchange for outstanding Able
Shares, Series C Shares and Series E Shares. Promptly after the
Effective Time, Subco will send, or will cause the Exchange Agent to
send, to each holder of Able Shares, Series C Shares or Series E
Shares at the Effective Time a letter of transmittal for use in such
exchange (which shall specify that the delivery shall be effected, and
risk of loss and title shall pass, only upon proper delivery of the
certificates representing Able Shares, Series C Shares or Series E
Shares to the Exchange Agent).
(b) Each holder of Able Shares, Series C Shares or Series
E Shares that have been converted into a right to receive Bracknell
Common Stock, upon surrender to the Exchange Agent of a certificate or
certificates representing such Able Shares, Series C Shares or Series
E Shares, together with a properly completed letter of transmittal
covering such Able Shares, Series C Shares or Series E Shares, will be
entitled to receive in exchange therefor that number of whole shares
of Bracknell Common Stock which such holder has the right to receive
pursuant to Section 2.02, and the certificate or certificates for Able
Shares, Series C Shares or Series E Shares so surrendered shall be
cancelled. Until so surrendered, each such certificate shall, after
the Effective Time, represent for all purposes, only the right to
receive upon such surrender a certificate representing shares of
Bracknell Common Stock and cash in lieu of any fractional shares of
Bracknell Common Stock as contemplated by this Section 2.03 and
Section 2.05.
(c) If any shares of Bracknell Common Stock are to be
issued to a Person other than the registered holder of Able Shares,
Series C Shares or Series E Shares represented by the certificate or
certificates surrendered in exchange therefor, it shall be a condition
to such issuance that the certificate or certificates so surrendered
shall be properly endorsed or otherwise be in proper form for transfer
and that the Person requesting such issuance shall pay to the Exchange
Agent any transfer Tax or other Taxes required as a result of such
issuance to a Person other than the registered holder of such Able
Shares, Series C Shares or Series E Shares or establish to the
satisfaction of the Exchange Agent that such Tax has been paid or is
not payable.
(d) After the Effective Time, there shall be no further
registration of transfers of Able Shares, Series C Shares or Series E
Shares. If, after the Effective Time,
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certificates representing Able Shares, Series C Shares or Series E
Shares are presented to the Surviving Corporation, they shall be
cancelled and exchanged as provided for, and in accordance with the
procedures set forth, in this Article II.
(e) Any shares of Bracknell Common Stock made available
to the Exchange Agent pursuant to Section 2.03(a) that remain
unclaimed by the holders of Able Shares, Series C Shares or Series E
Shares six months after the Effective Time shall be returned to
Bracknell, upon demand, and any such holder who has not exchanged his
Able Shares, Series C Shares or Series E Shares in accordance with
this Section prior to that time shall thereafter look only to
Bracknell to exchange such Able Shares, Series C Shares or Series E
Shares. Notwithstanding the foregoing, the Surviving Corporation and
Bracknell shall not be liable to any holder of Able Shares, Series C
Shares or Series E Shares for any amount paid, or any shares of
Bracknell Common Stock delivered, to a public official pursuant to
applicable abandoned property Laws. Any shares of Bracknell Common
Stock or other amounts remaining unclaimed by holders of Able Shares,
Series C Shares or Series E Shares two years after the Effective Time
(or such earlier date immediately prior to such time as such amounts
would otherwise escheat to or become property of any Governmental
Authority) shall, to the extent permitted by applicable Law, become
the property of Bracknell free and clear of any claims or interest of
any Person previously entitled thereto.
(f) No dividends or other distributions on shares of
Bracknell Common Stock shall be paid to the holder of any
unsurrendered certificates representing Able Shares, Series C Shares
or Series E Shares until such certificates are surrendered as provided
in this Section. Upon such surrender, there shall be paid, without
interest, to the Person in whose name the certificates representing
the shares of Bracknell Common Stock into which such Able Shares,
Series C Shares or Series E Shares were converted are registered, all
dividends and other distributions paid in respect of such Bracknell
Common Stock on a date subsequent to, and in respect of a record date
after, the Effective Time.
SECTION 2.04 Adjustments. If at any time during the period
between the date of this Agreement and the Effective Time, any change in the
outstanding shares of Bracknell Common Stock, Able Shares, Series C Shares or
Series E Shares shall occur, including by reason of any reclassification,
recapitalization, stock split or combination, exchange or readjustment of
shares, or any stock dividend thereon with a record date during such period,
the Conversion Number, the Series C Conversion Number and the Series E
Conversion Number shall be appropriately adjusted.
SECTION 2.05 Fractional Shares. No fractional shares of
Bracknell Common Stock shall be issued in the Merger. All fractional shares of
Bracknell Common Stock that a holder of Able Shares would otherwise be entitled
to receive as a result of the Merger shall be aggregated and if a fractional
share results from such aggregation, such holder shall be entitled to receive,
in lieu thereof, an amount in cash determined by multiplying the average of the
daily closing sale prices per share of Bracknell Common Stock on The Toronto
Stock Exchange (the "TSE") for the ten trading days next preceding the
Effective Time by the fraction of a share of
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Bracknell Common Stock to which such holder would otherwise have been entitled.
Alternatively, the Surviving Corporation shall have the option of instructing
the Exchange Agent to aggregate all fractional shares of Bracknell Common
Stock, sell such shares in the public market and distribute to holders of Able
Shares a pro rata portion of the proceeds of such sale; provided that Bracknell
shall pay all transaction costs associated therewith. No such cash in lieu of
fractional shares of Bracknell Common Stock shall be paid to any holder of Able
Shares until certificates representing such Able Shares are surrendered and
exchanged in accordance with Section 2.03.
SECTION 2.06 Dissenting Shares.
(a) Notwithstanding any other provisions of this
Agreement to the contrary, Able Shares, Series C Shares or Series E
Shares that are outstanding immediately prior to the Effective Time
and which are held by Able stockholders who shall have not voted in
favor of the Merger or consented thereto in writing and who shall be
entitled to and shall have demanded properly in writing, appraisal for
such shares in accordance with the Florida General Corporation Law
(collectively, the "Dissenting Shares") shall not be converted into or
represent the right to receive Bracknell Common Stock. Such
stockholders instead shall be entitled to receive payment of the
appraised value of such Able Shares, Series C Shares or Series E
Shares held by them in accordance with the provisions of the Florida
General Corporation Law, except that all Dissenting Shares held by
such stockholders, who shall have failed to perfect or who effectively
shall have withdrawn, forfeited, or lost their rights to appraisal of
such Able Shares, Series C Shares or Series E Shares under the Florida
General Corporation Law, shall thereupon be deemed to have been
converted into and to have become exchangeable for, as of the
Effective Time, the right to receive, without any interest thereon,
Bracknell Common Stock in the manner provided in Section 2.03 above.
(b) Able shall give Bracknell prompt notice of any
demands for appraisal received by it, withdrawals of such demands, and
any other instruments served pursuant to the Florida General
Corporation Law and received by Able and relating thereto. Able shall
direct all negotiations and proceedings with respect to demands for
appraisal rights under the Florida General Corporation Law and shall
keep Bracknell informed regarding the progress thereof.
ARTICLE III
THE SURVIVING CORPORATION
SECTION 3.01 Certificate of Incorporation. Effective
immediately following the Merger, the certificate of incorporation of Subco, as
in effect immediately prior to the Effective Time, shall be the certificate of
incorporation of the Surviving Corporation until amended in accordance with
applicable Law; provided, however, that the certificate of incorporation of the
Surviving Corporation shall be amended to read: "The name of the corporation is
Able Telcom Holding Corp."
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SECTION 3.02 Bylaws. Effective immediately following the
Merger, the bylaws of Subco in effect at the Effective Time shall be the bylaws
of the Surviving Corporation until amended in accordance with applicable Law.
SECTION 3.03 Directors and Officers. From and after the
Effective Time, until successors are duly elected or appointed and qualified in
accordance with applicable Law, (i) the directors of Subco at the Effective
Time shall be the directors of the Surviving Corporation, and (ii) the officers
of Subco at the Effective Time shall be the officers of the Surviving
Corporation.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF ABLE
Able represents and warrants to Bracknell and Subco that:
SECTION 4.01 Corporate Existence and Power. Able and each of
its Subsidiaries is a corporation or other entity duly organized, validly
existing and in good standing under the Laws of its jurisdiction of
incorporation or organization, has all requisite power and authority to own,
lease and operate its properties and to carry on its Business as now being
conducted, and is duly qualified and in good standing to do business in each
jurisdiction in which the Business it is conducting, or the operation,
ownership or leasing of its properties, makes such qualification necessary,
other than in such jurisdictions where the failure to so qualify would not have
an Able Material Adverse Effect. For purposes of this Agreement, an "Able
Material Adverse Change" or "Able Material Adverse Effect," means any change or
effect, either individually or in the aggregate, that is or may be reasonably
expected to be materially adverse to the Business, assets, liabilities,
properties, financial condition or results of operations of Able or an Able
Significant Subsidiary. For the purposes of this Agreement, an "Able
Significant Subsidiary" means a Subsidiary of Able which individually accounted
for 10% or more of the total revenues, net income, cash flows from operations
or assets of Able and its Subsidiaries on a consolidated basis in either of
Able's previous two fiscal years. Able has heretofore delivered to Bracknell
true and complete copies of Able's articles of incorporation and bylaws as
currently in effect.
SECTION 4.02 Corporate Authorization. Able has all requisite
corporate power and authority to enter into this Agreement and to consummate
the transactions contemplated hereby. The execution and delivery of this
Agreement and the consummation of the transactions contemplated hereby have,
except for any required approval by Able's stockholders in connection with the
Merger, been duly authorized by all necessary corporate action on the part of
Able. Able's Board of Directors has authorized Able to enter into this
Agreement, has determined that this Agreement is in the best interests of Able
and its stockholders and has recommended that Able's stockholders vote in favor
of the Merger and the other transactions contemplated hereby. This Agreement
has been duly executed and delivered by Able and constitutes a valid and
binding obligation of Able enforceable in accordance with its terms, subject to
bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and
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similar Laws now or hereafter in effect, affecting creditors' rights and
remedies and to general principles of equity.
SECTION 4.03 Governmental Authorization. No consent,
approval, Order or authorization of, or registration, declaration or filing
with, or Permit from, any Governmental Authority is required by or with respect
to Able or any of its Subsidiaries in connection with the execution, delivery
and performance of this Agreement by Able or the consummation of the Merger or
other transactions contemplated hereby, other than (i) compliance with the
applicable requirements of the HSR Act and the Exchange Act, and (ii) the
filing of a certificate of merger with the Secretary of State of the State of
Florida, except where the failure of any action to be taken by any Governmental
Authority or filing to be made would not have an Able Material Adverse Effect
or prevent consummation of the Merger or the other transactions contemplated
hereby.
SECTION 4.04 Non-Contravention. The execution and delivery of
this Agreement by Able does not, and the consummation of the transactions
contemplated hereby by Able will not, conflict with, or result in any violation
of, or default (with or without notice or lapse of time, or both) under, or
give rise to a right of termination, cancellation or acceleration of any
obligation or the loss of a material benefit under, or the creation of a Lien
on assets or property or right of first refusal with respect to any asset or
property (any such conflict, violation, default, right of termination,
cancellation or acceleration, loss, creation or right of first refusal, a
"Violation"), pursuant to any provision of the articles of incorporation or
bylaws of Able or any of its Subsidiaries or, except as set forth on Schedule
4.04 hereto, or as to which requisite waivers or consents have been obtained
and assuming the consents, approvals, authorizations or Permits and filings or
notifications referred to in Section 4.03 are duly and timely obtained or made,
result in any Violation of any loan or credit agreement, note, mortgage,
indenture, Lease, Benefit Arrangement or other agreement, obligation,
instrument, Permit, concession, franchise, Order or Law applicable to Able or
any of its Subsidiaries or their respective properties or assets, except for
any Violations which would not have an Able Material Adverse Effect.
SECTION 4.05 Capitalization.
(a) The entire authorized capital stock of Able consists
of (i) 25,000,000 shares of common stock, par value $.001 per share,
and (ii) 1,000,000 shares of preferred stock, par value $0.10 per
share, issuable in series ("Able Preferred Stock") (collectively, the
"Able Authorized Capital Stock"). Of the Able Authorized Capital
Stock: 16,374,504 Able Shares, 5,000 Series C Shares and 1,000 Series
E Shares are validly issued and outstanding. Each of the aforesaid
shares has been validly issued, is fully paid and nonassessable, and
has not been issued in violation of any preemptive rights. Able has
also granted options to purchase 3,564,314 Able Shares (the "Able
Stock Options") to the Persons (who are present or former officers,
directors, employees or advisors), at the exercise prices and in the
amounts listed on Schedule 4.05(a)(i), of which 2,435,000 were granted
outside of Able's Stock Option Plan and 1,129,314 were granted under
Able's Stock Option Plan. Able has also issued warrants and other
options to purchase 1,929,505 Able Shares to other Persons, at the
exercise prices and in amounts listed on Schedule 4.05(a)(ii). Except
as set forth in Schedules 4.05(a)(i) and 4.05(a)(ii) hereto, no
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options, warrants or other rights to acquire, sell, or issue shares of
capital stock of Able are outstanding, and except as disclosed in
Schedule 4.05(a)(iii), between the date hereof and the Effective Time,
no shares of capital stock of Able and no such options, warrants or
rights will be issued. Except as set forth in Schedule 4.05(a)(iv),
Able has not issued, granted or awarded any phantom stock, stock
appreciation rights, or any similar instruments to any Person.
(b) No bonds, debentures, notes or other indebtedness
having the right to vote (or convertible into securities having the
right to vote) on any matters on which stockholders may vote ("Voting
Debt") that were issued by Able are outstanding. Except as set forth
in this Section 4.05 and Schedule 4.05(b), there are outstanding (A)
no shares of capital stock, Voting Debt or other voting securities of
Able, (B) no securities of Able or any Subsidiary of Able convertible
into or exchangeable for shares of capital stock, Voting Debt or other
voting securities of Able or any Subsidiary of Able, and (C) no
options, warrants, calls, rights (including preemptive rights),
commitments or agreements pursuant to which Able or any Subsidiary of
Able is obligated to issue, deliver, sell, purchase, redeem or
acquire, or cause to be issued, delivered, sold, purchased, redeemed
or acquired, additional shares of capital stock or any Voting Debt or
other voting securities of Able or of any Subsidiary of Able or
obligating Able or any Subsidiary of Able to grant, extend or enter
into any such option, warrant, call, right, commitment or agreement.
(c) Except as listed in Schedule 4.05(c), there are not
as of the date hereof and there will not be at the Effective Time any
stockholder agreements, voting trusts or other agreements or
understandings to which Able is a party or by which it is bound
relating to the voting of any shares of the capital stock of Able
which will limit in any way the granting of proxies by or on behalf of
or from, or the casting of votes by, Able stockholders with respect to
the Merger. There are no restrictions on the ability of Able to vote
the stock of any of its Subsidiaries.
SECTION 4.06 Subsidiaries. Schedule 4.06(i) sets forth the
name and jurisdiction of incorporation or organization of each Subsidiary of
Able. The authorized and issued and outstanding shares of capital stock of each
Subsidiary of Able are set forth on Schedule 4.06(ii). Except as set forth in
Schedule 4.06(iii), all of the outstanding capital stock of, or other ownership
interests in, each Subsidiary of Able is owned by Able, directly or indirectly,
free and clear of any Lien and free of any other limitation or restriction
(including any restriction on the right to vote, sell or otherwise dispose of
such capital stock or other ownership interests).
SECTION 4.07 SEC Filings.
(a) Able has delivered to Bracknell (i) Able's annual
report on Form 10-K for the fiscal year ended October 31, 1999
(amended May 26, 2000) (the "Able 10-K"), (ii) its quarterly reports
on Form 10-Q for its fiscal quarters ended January 31, 2000 and April
30, 2000, as amended, (iii) its current reports on Form 8-K dated May
30, 2000, June 7, 2000 and July 20, 2000, (iv) its proxy or
information statements relating to
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meetings of, or actions taken without a meeting by, the stockholders
of Able held since April 1998, and (v) all of its other reports,
statements, schedules and registration statements filed with the SEC
since its initial public offering, including without limitation, the
Registration Statement on Form S-1 (Registration Number 333-65991), as
amended, and all materials incorporated therein by reference (the
filings referred to in clauses (i) through (v) above and delivered to
Bracknell prior to the date hereof being hereinafter referred to as
the "Able SEC Filings").
(b) As of its filing date or with respect to any proxy
statements, as of the date it was first mailed to Able stockholders,
each such report or statement filed pursuant to the Exchange Act
complied as to form in all material respects with the requirements of
the Exchange Act, except as disclosed in Schedule 4.07(b), and did not
contain any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements made therein,
in the light of the circumstances under which they were made, not
misleading.
(c) Each such registration statement and any amendment
thereto filed pursuant to the Securities Act of 1933, as of the date
such statement or amendment became effective, complied as to form in
all material respects with the Securities Act of 1933 and did not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading.
SECTION 4.08 Financial Statements. The audited consolidated
financial statements and unaudited consolidated interim financial statements of
Able and its consolidated Subsidiaries included in the Able 10-K and the
quarterly reports on Form 10-Q referred to in Section 4.07 fairly present, in
conformity with GAAP (except as may be indicated in the notes thereto), the
consolidated financial position of Able and its consolidated Subsidiaries as of
the dates thereof and their consolidated results of operations and cash flows
for the periods then ended (subject, in the case of any unaudited interim
financial statements, to normal year-end adjustments, none of which,
individually or in the aggregate, would have an Able Material Adverse Effect).
SECTION 4.09 Proxy Statement/Prospectus; Registration
Statement. None of the information supplied by Able for inclusion in (a) the
proxy statement relating to the Able Stockholder Meeting (also constituting the
prospectus in respect of the Bracknell Common Stock to be exchanged for Able
Shares in the Merger) (the "Proxy Statement/Prospectus"), to be filed by Able
and Bracknell with the SEC, and any amendments or supplements thereto, or (b)
the Registration Statement on Form F-4 (the "Registration Statement") to be
filed by Bracknell with the SEC in connection with the Merger, and any
amendments or supplements thereto, will, at the respective times such documents
are filed, and, in the case of the Proxy Statement/Prospectus, at the time the
Proxy Statement/Prospectus or any amendment or supplement thereto is first
mailed to stockholders of Able, at the time of the Able Stockholder Meeting and
at the Effective Time, and, in the case of the Registration Statement, when it
becomes effective under the Securities Act of 1933, contain any untrue
statement of a material fact or omit to state any material fact necessary in
order to make the statements made therein, in the light of the circumstances
under
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which they were made, not misleading. All documents that Able is responsible
for filing with the SEC in connection with the Merger will comply as to form in
all material respects with the applicable provisions of the Exchange Act, the
Securities Act of 1933 and state securities Laws.
SECTION 4.10 Absence of Certain Changes. Except as set forth
on Schedule 4.10 since April 30, 2000, Able and its Subsidiaries have conducted
their business in all material respects in the ordinary course consistent with
past practices and there has not been:
(a) any event, occurrence or development or state of
circumstances or facts, which affects or relates to Able or any of its
Subsidiaries, which has had or would reasonably be expected to have an
Able Material Adverse Effect;
(b) any declaration, setting aside or payment of any
dividend or other distribution with respect to any shares of capital
stock of Able, or any repurchase, redemption or other acquisition by
Able or any of its Subsidiaries of any outstanding shares of capital
stock or other securities of, or other ownership interests in, Able or
any of its Subsidiaries;
(c) any amendment of any term of any outstanding security
of Able or any of its Subsidiaries;
(d) any incurrence, assumption or guarantee by Able or
any of its Subsidiaries of any indebtedness for borrowed money other
than in the ordinary course of business and in amounts and on terms
consistent with past practices;
(e) any creation or assumption by Able or any of its
Subsidiaries of any Lien (other than a Permitted Lien) on any material
asset;
(f) any making of any loan, advance or capital
contributions to or investment in any Person other than loans,
advances or capital contributions to or investments in wholly owned
Subsidiaries made in the ordinary course of business consistent with
past practices;
(g) any material amendment or termination of any Material
Contract or Material Lease relating to the Business or any material
capital expenditure;
(h) to Able's Knowledge, any claim or threatened claim
against Able or one or more of its Subsidiaries in respect of a
Material Contract where the liability of Able or one or more of its
Subsidiaries exceeds, or could reasonably be expected to exceed,
$1,000,000;
(i) any material destruction, damage or other loss to any
of the assets of Able or any of its Subsidiaries that is not covered
by insurance;
(j) any material sale, lease or other disposition of any
of the assets of Able or any of its Subsidiaries, other than assets
sold, leased or otherwise disposed of in the
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ordinary course of business consistent with past practice which would
not, in the aggregate, have an Able Material Adverse Effect;
(k) any material purchase or lease of any assets by Able
or any of its Subsidiaries, other than assets purchased or leased in
the ordinary course of business consistent with past practice;
(l) any change in any method of accounting or accounting
practice by Able or any of its Subsidiaries, except for any such
change required by reason of a concurrent change in GAAP or to conform
a Subsidiary's accounting policies and practices to those of Able;
(m) except for contractual obligations existing on the
date hereof or disclosed on Schedule 4.10(m), any (i) grant of any
severance or termination pay to any director, officer or employee of
Able, (ii) entering into of any employment, deferred compensation or
other similar agreement (or any amendment to any such existing
agreement) with any director, officer or employee of Able or any of
its Subsidiaries except in the ordinary course of business consistent
with past practice with persons who are not executive officers, (iii)
increase in benefits payable under any existing severance or
termination pay policies or employment agreements, (iv) increase in
compensation, bonus or other benefits payable to directors, officers
or employees of Able or any of its Subsidiaries, other than in the
ordinary course of business consistent with past practice, or (v)
acceleration of the exercisability or vesting of any options, as the
case may be;
(n) any labor dispute, other than individual grievances,
or any activity or proceeding by a labor union or representative
thereof to organize any employees of Able or any of its Subsidiaries,
which employees were not subject to a collective bargaining agreement
at April 30, 2000 or any lockouts, strikes, slowdowns, work stoppages
or threats thereof by or with respect to such employees;
(o) any actual or, to Able's Knowledge, threatened
dispute between Able or any of its Subsidiaries and any vendor or
customer, other than disputes which would not have or reasonably be
expected to have, individually or in the aggregate, an Able Material
Adverse Effect;
(p) any actual or, to Able's Knowledge, threatened
suspension or cancellation of any Permit, other than those the
suspension or cancellation of which would not have or reasonably be
expected to have, individually or in the aggregate, an Able Material
Adverse Effect;
(q) any amendment to Able's articles of incorporation or
bylaws;
(r) any change in any Law applicable to Able or any of
its Subsidiaries, or in the interpretation or application thereof,
which individually or in the aggregate has had or would reasonably be
expected to have an Able Material Adverse Effect; or
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(s) any agreement or commitment by Able or any of its
Subsidiaries to take any action described in this Section 4.10.
SECTION 4.11 No Undisclosed Material Liabilities. Except as
described in Schedule 4.11, there are no Liabilities of Able or any of its
Subsidiaries, and there is no existing condition, situation or set of
circumstances which, individually or in the aggregate, have or would reasonably
be expected to have an Able Material Adverse Effect, other than:
(a) Liabilities disclosed or provided for in Able's
consolidated balance sheet dated as of April 30, 2000 included in
Able's quarterly report on Form 10-Q for the fiscal quarter ended
April 30, 2000;
(b) Liabilities incurred in the ordinary course of
business consistent with past practices since April 30, 2000, which in
the aggregate are not material to Able or an Able Significant
Subsidiary; and
(c) Liabilities under this Agreement.
SECTION 4.12 Real Property.
(a) A complete and accurate list and description of all
real property owned by Able or its Subsidiaries (other than
Easements), in each case which is used or useful in the conduct of the
Business, is set forth in Schedule 4.12(a) (the "Owned Real
Property"). Able or one of its Subsidiaries has good, valid and
marketable title in fee simple to each Owned Real Property free and
clear of all Liens except Permitted Liens.
(b) A complete and accurate list and description of all
the real property leased to Able or its Subsidiaries (other than
Easements), in each case which is used or useful in the conduct of the
Business (the "Leased Real Property"), is set forth in Schedule
4.12(b). Except as set forth on Schedule 4.12(b), all Material Leases
are in writing and are valid, effective, binding and in full force and
effect. There has been no material breach of, or default under, any
Material Lease by Able or one of its Subsidiaries or, to Able's
Knowledge, any other Person, which breach or default has not been
cured or waived (and no event has occurred which, with due notice or
lapse of time or both, may constitute a breach or default), and no
party to any Material Lease has given Able or one of its Subsidiaries
written notice or made a claim with respect to any breach or default
under a Material Lease. A true and complete copy of each of the
Material Leases, as amended to date, has been furnished to Bracknell.
Able or one of its Subsidiaries is the lessee or sublessee under all
Material Leases or has succeeded (or will succeed prior to the Closing
Date) to the rights of the lessee under such Material Leases and owns
the leasehold interest created pursuant to such Leases free and clear
of all Liens except Permitted Liens. Able or one of its Subsidiaries
validly occupies any improvements located on the Leased Real Property
in accordance with the terms of the relevant Leases free and clear of
all Liens except Permitted Liens. All consents required under the
Material Leases in connection with the transactions contemplated by
this Agreement have been, or as of the Closing Date will be, obtained
and furnished in writing to Bracknell.
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(c) A complete and accurate list and description of all
easements, the beneficial interest of which is owned by Able or one of
its Subsidiaries, in each case which is used or useful in the conduct
of the Business is listed in Schedule 4.12(c) (the "Easements").
Schedule 4.12(c) also lists, with respect to each Easement, all
contracts or other agreements (collectively, the "Easement Contracts")
pursuant to which Able or one of its Subsidiaries (i) acquired rights
to the Easement, and/or (ii) granted rights to others to use or access
any wires, cables, or other conduit located within the respective
Easement areas. Able or one of its Subsidiaries has good, valid, and
marketable title in and to each Easement free and clear of all Liens
except Permitted Liens. Each Easement is valid, effective and binding
and in full force and effect. There has been no material breach of any
Easement or Easement Contract by Able or its Subsidiaries or, to
Able's Knowledge, any other Person, which breach has not been cured or
waived. A true and complete copy of each Easement Contract, as amended
to date, has been furnished to Bracknell. Able or one of its
Subsidiaries validly occupies and uses the Easements and any
improvements located on the Easements in accordance with the terms of
the Easement Contracts. All consents required under the Easements and
Easement Contracts in connection with the transactions contemplated by
this Agreement have been, or as of the Closing Date will be, obtained
and furnished in writing to Bracknell.
(d) Schedules 4.12(a), 4.12(b) and 4.12(c) describe all
real property owned or leased by Able or its Subsidiaries (the "Real
Property"), and the nature of the interest of Able or its Subsidiaries
in those properties. There is no real property (other than the Real
Property) the use or possession of which is necessary for Able or its
Subsidiaries to carry on the Business. Except as provided in Schedule
4.12(d), none of the Real Property is subject to a Lease, sublease,
license or other agreement granting any Person any right to the use,
occupancy or enjoyment thereof (or any portion thereof), except where
such Lease, sublease, license or other agreement would not materially
detract from the value of the applicable property, materially impair
the present and continued use, operation or maintenance of the
property subject thereto, or materially impair the operations of Able
or one of its Subsidiaries.
(e) The buildings, driveways and all other structures and
improvements upon the Real Property are all within the boundary lines
of the applicable property or have the benefit of valid easements or
other legal rights and there are no encroachments thereon that would
materially affect the use thereof.
(f) All buildings, structures, improvements and fixtures
owned, leased or used by Able or its Subsidiaries in the conduct of
the Business conform in all material respects to all applicable
building, zoning, health, safety, environmental and other Laws,
regulations, codes and rules adopted by national and local
associations and boards and insurance underwriters, and all such
buildings, structures, improvements and fixtures and the electrical,
plumbing, HVAC and other systems thereat are in good operating
condition and repair. There are no outstanding requirements or
recommendations by any insurance company which has issued a policy
covering any such property, or by any board of fire underwriters or
other body exercising similar functions, requiring or recommending any
material repairs or work to be done on any such property.
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(g) Schedule 4.12(g) lists all policies of title
insurance insuring the interest of Able and its Subsidiaries in the
Real Property (the "Title Policies"). All of the Title Policies are in
full force and effect and neither Able nor any of its Subsidiaries have
taken or will take any action that would adversely affect the coverage
afforded the insured thereunder. Able will provide copies of each of
the Title Policies and any related surveys to Bracknell promptly after
the date hereof. Able will cooperate with Bracknell to obtain any new
policies or amendments or endorsements to the Title Policies as may
reasonably be required by Bracknell.
SECTION 4.13 Personal Property.
(a) Subject to Permitted Liens, Able or its Subsidiaries
have marketable and indefeasible title to all personal property owned
by Able or its Subsidiaries and used in the conduct of the Business,
other than (A) property that has been disposed of in the ordinary
course of business, (B) property that has been disposed of in
transactions disclosed to Bracknell in writing prior to the date
hereof, and (C) Leased Personal Property.
(b) Schedule 4.13(b) lists all of the Material Leases of
leased personal property used in the Business conducted by Able and its
Subsidiaries (the "Leased Personal Property"). All such Material Leases
of Leased Personal Property are valid and binding and in full force and
effect. There has been no material breach of any such Material Lease by
Able or its Subsidiaries or, to Able's knowledge, any other Person,
which breach has not been cured or waived.
SECTION 4.14 Accounts Receivable. Except as set forth on
Schedule 4.14, all Accounts Receivable of Able and its Subsidiaries reflected on
the balance sheet included in Able's Form 10-Q as of April 30, 2000 and all
Accounts Receivable of Able and its Subsidiaries generated after April 30, 2000
that are reflected in the accounting records of Able and its Subsidiaries as of
the Closing Date represent or will represent valid obligations arising from
sales actually made or services actually performed or billed for in the ordinary
course of business. All Accounts Receivable not paid prior to the Closing Date
are current and collectible in the ordinary course of business, except to the
extent reflected in the reserve for doubtful accounts in the financial
statements include in Able's SEC Filings. The reserve for doubtful accounts
reflected in the financial statements included in Able's SEC Filings has been
determined consistent with past practices and in accordance with GAAP. Able and
its Subsidiaries have good and valid title to the Accounts Receivable free and
clear of all Liens except Permitted Liens.
SECTION 4.15 Contracts. Except for (i) purchase orders,
invoices, confirmations and similar documents involving the purchase or sale of
goods or services for less than $250,000 over a period of 12 months or less,
(ii) Leases, (iii) Benefit Arrangements, and (iv) contracts relating to
intercompany obligations, Schedule 4.15(i) sets forth a list of all of the
following contracts ("Material Contracts") (A) to which Able or any of its
Subsidiaries is a party or (B) by which any of the assets of Able or any of its
Subsidiaries are bound: (1) contracts pertaining to the borrowing of money; (2)
contracts creating Liens; (3) contracts creating
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guarantees; (4) contracts relating to material employment or consulting
services; (5) contracts relating to any single capital expenditure in excess of
$250,000 or aggregate capital expenditures in excess of $500,000; (6) contracts
for the purchase or sale of real property, any business or line of business or
for any merger or consolidation; (7) joint venture or partnership agreements;
(8) contracts that individually require by their respective terms after the date
hereof the payment or receipt of $250,000 or more; (9) any agreement involving
derivatives, hedging or futures under which the obligations of Able or one of
its Subsidiaries could reasonably be expected to exceed $250,000; (10) any
contract that limits the freedom of Able or its Subsidiaries to compete in any
line of business or to conduct business in any geographic location; or (11) any
contract for the purchase or sale of all or substantially all of the assets or
stock of any company or operating division. All Material Contracts are valid and
binding and in full force and effect. Except as disclosed in Schedule 4.15(ii),
there has been no material breach of any contract by Able or its Subsidiaries
or, to Able's Knowledge, any other Person, which breach has not been cured or
waived. Able will make available to Bracknell true and complete copies of the
Material Contracts.
SECTION 4.16 Litigation. Except as set forth on Schedule 4.16,
there is no Action by any Person or by or before any Governmental Authority that
is pending or, to Able's Knowledge, threatened by, against or affecting Able or
its Subsidiaries or any of their respective assets which would have or
reasonably be expected to have an Able Material Adverse Effect. Except as set
forth on Schedule 4.16, neither Able nor any of its Subsidiaries is subject to
any Order that would have an Able Material Adverse Effect.
SECTION 4.17 Taxes. Except as set forth on Schedule 4.17(i),
Able and its Subsidiaries have timely filed all Returns and reports required to
be filed by them on or before the date hereof, or requests for extensions to
file such Returns have been timely filed and granted and have not yet expired.
All such Returns are complete and accurate. Able and its Subsidiaries have paid,
or have set up an adequate reserve for the payment of, all Taxes due, whether or
not shown as due, on such Returns and have properly withheld and paid over to
the appropriate Governmental Authority all applicable withholding Taxes. The
interim balance sheet contained in Able's Form 10-Q for its fiscal quarter ended
April 30, 2000 contains an adequate reserve for all Taxes accrued by Able and
its Subsidiaries through April 30, 2000. Except as set forth on Schedule
4.17(ii), no deficiencies for any Taxes have been asserted, proposed or
otherwise settled or reserved against, Able has not received any notice of and
has no reason to believe that any deficiency for any Taxes will be proposed or
threatened, and no waivers of the time to assess any such Taxes are pending.
There are no material Liens for Taxes (other than Permitted Liens for current
Taxes not yet due and payable) on the assets of Able or any of its Subsidiaries.
No election under Section 341(f) of the Code has been or will be made to treat
Able or any of its Subsidiaries as a "consenting corporation" as defined in such
Section 341(f). Neither Able nor any of its Subsidiaries is a party to any
agreement, contract or arrangement that has resulted or could result in any
disallowance of a deduction for employee remuneration under Section 162(m) of
the Code or that would result, separately or in the aggregate, in any payment
(whether or not in connection with any termination of employment or otherwise)
of any "excess parachute payment" within the meaning of Section 280G of the
Code. Except as set forth on Schedule 4.17(iii), neither Able nor any of its
Subsidiaries has been a party to any deferred intercompany transaction pursuant
to which it realized but did not recognize a gain, and no excess loss account
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exists with respect to the shares of stock of any member of the federal
consolidated income tax group of which Able is the common parent. Neither Able
nor any of its Subsidiaries is or has been a party to any Tax sharing agreement
or has or could have any liability for Taxes pursuant to Section 1.1502-6 of the
regulations promulgated pursuant to the Code for the Taxes of any Person other
than a corporation that is currently a member of the federal consolidated income
Tax group of which Able is the common parent. Able has no reason to believe that
any of its net operating loss carryforwards, foreign Tax credit carryforwards or
other similar Tax attributes would be reduced or disallowed by any taxing
authority if its Returns for the years in which such Tax attributes were created
were audited. Except as set forth on Schedule 4.17(iv), no audit of Able or any
of its Subsidiaries by any taxing authority is currently pending or threatened,
and no issues have been raised by any taxing authority in connection with any
Returns of Able or any of its Subsidiaries.
SECTION 4.18 Tax Free Merger.
(a) Following the Merger, the Surviving Corporation will
hold at least 90 percent of the fair market value of the net assets,
and at least 70 percent of the fair market value of the gross assets,
held by Able prior to the Merger. For purposes of this representation,
amounts used by Able to pay reorganization expenses and all
redemptions, distributions and payments, in cash or property, made by
Able in connection with the Merger shall be included as assets of Able
prior to the Merger.
(b) Able has no plan or intention to issue additional
shares of it stock that would result in Bracknell losing control of
Able within the meaning of Section 368(c) of the Code. At the time of
the Merger, Able will not have outstanding any warrants, options,
convertible securities, or any other type of right pursuant to which
any Person could acquire stock in Able that, if exercised or converted,
would affect Bracknell's acquisition or retention of such control.
(c) There is no intercorporate indebtedness existing
between Bracknell and Able or between Subco and Able. Able is not an
investment company as defined in Section 368(a)(2)(F)(iii) and (iv) of
the Code. On the date of the Merger, the fair market value of the
assets of Able will exceed the sum of its liabilities plus the
liabilities, if any, to which its assets are subject. Able is not under
the jurisdiction of a court in a Title 11 or similar case within the
meaning of Section 368(a)(3)(A) of the Code.
(d) Able agrees to treat the Merger as a reorganization
within the meaning of Section 368(a) of the Code. This Agreement is
intended to constitute a "plan of reorganization" within the meaning of
Section 1.368-2(g) of the income Tax regulations promulgated under the
Code. Able has not knowingly taken any action that would jeopardize the
qualification of the Merger as a reorganization within the meaning of
Section 368(a) of the Code. During the period from the date of this
Agreement through the Effective Time, unless all parties hereto shall
otherwise agree in writing, Able shall not knowingly take or fail to
take any action which action or failure would jeopardize the
qualification of the Merger as a reorganization within the meaning of
Section 368(a) of the Code. Able shall cause one or more of its
responsible officers to execute and deliver
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certificates to confirm the accuracy of certain relevant facts as may
be reasonably requested by counsel in connection with the preparation
and delivery of the Tax opinion described in Section 9.01(f).
SECTION 4.19 ERISA.
(a) "Employee Plans" shall mean each "employee benefit
plan", as defined in Section 3(3) of the Employee Retirement Income
Security Act of 1974 ("ERISA"), which (i) is subject to any provision
of ERISA and (ii) is maintained, administered or contributed to by Able
or any affiliate (as defined below) and covers any employee or former
employee of Able or any affiliate or under which Able or any affiliate
has any liability. Schedule 4.19(a) lists all Employee Plans. True and
complete copies of such plans (and, if applicable, related trust
agreements) and all amendments thereto have been furnished to
Bracknell. For purposes of this Section, "affiliate" of any Person
means any other Person which, together with such Person, would be
treated as a single employer under Section 414 of the Code.
(b) No Employee Plan individually or collectively
constitutes a "defined benefit plan" as defined in Section 3(35) of
ERISA.
(c) No Employee Plan constitutes a "multi-employer plan",
as defined in Section 3(37) of ERISA, and no Employee Plan is
maintained in connection with any trust described in Section 501(c)(9)
of the Code. No Employee Plan is subject to Title IV of ERISA. Neither
Able nor any of its affiliates has incurred, nor has reason to expect
to incur, any liability under Title IV of ERISA arising in connection
with the termination of, or complete or partial withdrawal from, any
plan previously covered by Title IV of ERISA.
(d) Nothing done or omitted to be done and no transaction
or holding of any asset under or in connection with any Employee Plan
has or will make Able or any of its Subsidiaries or any officer or
director of Able or any of its Subsidiaries subject to any liability
under Title I of ERISA or liable for any Tax pursuant to Section 4975
of the Code that would have, or reasonably be expected to have,
individually or in the aggregate, an Able Material Adverse Effect.
(e) Each Employee Plan which is intended to be qualified
under Section 401(a) of the Code is so qualified and has been so
qualified during the period from its adoption to date, and each trust
forming a part thereof is exempt from Tax pursuant to Section 501(a) of
the Code, and each Employee Plan has been maintained in material
compliance with its terms and with the requirements prescribed by any
and all statutes, Orders, final rules and final regulations, including
but not limited to ERISA and the Code, which are applicable to such
Employee Plan.
(f) There is no contract, agreement, plan or arrangement
covering any employee or former employee of Able or any affiliate that,
individually or collectively,
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could give rise to the payment of any amount that would not be
deductible pursuant to the terms of Section 280G of the Code.
(g) "Benefit Arrangement" shall mean each employment,
severance or other similar contract, arrangement or policy and each
plan or arrangement (written or oral) providing for compensation,
bonus, profit-sharing, or other forms of incentive or deferred
compensation, vacation benefits, insurance coverage (including any
self-insured arrangements), health or medical benefits, disability
benefits, workers' compensation with the exception of the stock options
disclosed in Schedule 4.05(a)(i) or Schedule 4.05(a)(ii), supplemental
unemployment benefits, severance benefits and post-employment or
retirement benefits (including compensation, health or medical
insurance or other benefits) which (i) is not an Employee Plan, (ii) is
entered into, maintained or contributed to, as the case may be, by Able
or any of its affiliates, and (iii) covers any employee or former
employee of Able or any of its affiliates. Copies or descriptions of
the Benefit Arrangements have been furnished to Bracknell. Each Benefit
Arrangement has been maintained in compliance with its terms and with
the requirements prescribed by any and all Laws that are applicable to
such Benefit Arrangement.
(h) Except as disclosed in Schedule 4.19(h), the
transactions contemplated hereby will not result in any liability for
severance pay to any employee or accelerate the exercisability, vesting
or payment of any options, warrants, stock appreciation rights, phantom
stock awards or any similar instruments, as the case may be, nor will
any employee be entitled to any payment solely by reason of such
transactions.
(i) All contributions required to be made to trusts in
connection with any Employee Plan that would constitute a "defined
contribution plan" (within the meaning of Section 3(34) of ERISA) have
been made in a timely manner in compliance with applicable law and
regulations;
(j) Other than claims in the ordinary course for benefits
with respect to the Employee Plans or Benefit Arrangements, there are
no Actions, suits or claims (including claims for income Taxes,
interest, penalties, fines or excise Taxes with respect thereto)
pending with respect to any Employee Plan or Benefit Arrangement, or
any circumstances which might give rise to any such Action, suit or
claim (including claims for income Taxes, interest, penalties, fines or
excise Taxes with respect thereto);
(k) Except as disclosed in paragraphs (2) and (3) of
Schedule 4.17(i), all reports, returns and similar documents with
respect to the Employee Plans or Benefit Arrangements required to be
filed with any governmental agency have been so filed by the due date
for such filings;
(l) Able has no obligation to provide health or other
welfare benefits to former, retired or terminated employees, except as
specifically required under Section 4980B of the Code or Section 601 of
ERISA. Able has complied with the notice and continuation requirements
of Section 4980B of the Code and Section 601 of ERISA and the
regulations thereunder.
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(m) Except as disclosed in writing to Bracknell prior to
the date hereof and subject to the provisions of Section 4.10(l), there
has been no amendment to, written interpretation or announcement
(whether or not written) by Able or any of its affiliates relating to,
or change in employee participation or coverage under, any Employee
Plan or Benefit Arrangement which in the aggregate would increase the
per employee expense of maintaining such Employee Plan or Benefit
Arrangement above the level of the expense incurred on a per employee
basis in respect thereof for the six months ended on April 30, 2000
except to the extent, with respect to all employees, as would not have,
or reasonably be expected to have, individually or in the aggregate, an
Able Material Adverse Effect.
SECTION 4.20 Environmental Matters. Except as set forth in
Schedule 4.20, and to the best of Able's Knowledge, (a) Able and its
Subsidiaries have obtained and maintain all Material Environmental Permits
necessary operate their Business; (b) Able and its Subsidiaries are and at all
times have been in material compliance with, and have not been and are not in
violation of or liable under, any Environmental Permit or any Environmental Law;
(c) there are no past, pending, or threatened Environmental Claims against Able
or its Subsidiaries in connection with the Business or any Site; (d) no Releases
of Hazardous Materials have occurred at, from, in, to, on or under any Site and
no Hazardous Materials are present in, on, about or migrating to or from any
Site that could give rise to an Environmental Claim against Able or its
Subsidiaries; (e) neither Able, its Subsidiaries, their predecessors have
generated, recycled, discharged or released any Hazardous Material, or
transported or arranged for the treatment, storage, handling, disposal or
transportation of any Hazardous Material to any off-Site location, which is
reasonably likely to result in an Environmental Claim against Able or its
Subsidiaries; (f) no Site or any property to which Able or any of its
Subsidiaries has, directly or indirectly, transported or arranged for the
transportation of any Hazardous Material, is a current or proposed Environmental
Cleanup Site; (g) there are no Liens arising under or pursuant to any
Environmental Law on any Site and there are no facts, circumstances or
conditions that could restrict or encumber, or result in the imposition of use
restrictions under any Environmental Law with respect to the ownership,
occupancy, development, use or transferability of any Site currently owned or
operated by Able or its Subsidiaries; (h) there are no underground storage
tanks, active or abandoned, polychlorinated biphenyl containing equipment, or
asbestos or asbestos-containing materials at any Site; and (i) Able and its
Subsidiaries have provided Bracknell with all audits, assessments, reports,
reviews and investigations relating to Able and each of its Subsidiaries,
whether prepared internally or by external consultants, relating to the
existence or management of any issues or circumstances relevant to the
Environment, including without limitation any such documentation relating to any
Site.
SECTION 4.21 Intellectual Property. Able and its Subsidiaries
own sufficient right, title and interest in and to, or have valid licenses of
sufficient scope and duration for, all patents, patent rights, copyrights,
trademarks, service marks, trade names, software, trade secrets, confidential
information and other Intellectual Property material to the operation of the
Business as currently conducted or proposed to be conducted (the "Intellectual
Property Assets"). The Intellectual Property Assets are free and clear of all
Liens which would materially impair the ability of Able or its Subsidiaries to
use the Intellectual Property Assets in the Business currently conducted or
proposed to be conducted. Able has granted no third party any rights in and to
the Intellectual Property Assets except for rights which would not have an Able
Material Adverse
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Effect. Except as set forth on Schedule 4.21, none of the Intellectual Property
Assets owned or licensed by Able or its Subsidiaries infringes upon or conflicts
with, or to Able's Knowledge, is alleged to infringe upon or conflict with, the
Intellectual Property rights of any third party, which infringement or alleged
infringement could have an Able Material Adverse Effect.
SECTION 4.22 Employees. Schedule 4.22 sets forth each
collective bargaining or other labor union agreement applicable to any employees
of Able or any of its Subsidiaries ("Able Employees"). No material work stoppage
or material labor dispute against Able or any of its Subsidiaries in connection
with the Business is pending or, to Able's Knowledge, threatened and, to Able's
Knowledge, except as set forth on Schedule 4.22, there is no related
organizational activity by any Able Employees. Neither Able nor any of its
Subsidiaries has, except as set forth on Schedule 4.22, received any written
notice of any unfair labor practice in connection with the Business, and no such
complaints are pending before the National Labor Relations Board or other
similar Governmental Authority.
SECTION 4.23 Intercompany Agreements. Schedule 4.23 lists each
and every contract between Able and any of its stockholders or, to Able's
Knowledge, any Affiliate of Able and any of its stockholders which is currently
in effect.
SECTION 4.24 Certain Payments. Neither Able, nor any of its
Subsidiaries, directors, officers, agents, or employees, or any other Person
associated with or acting for or on behalf of Able or any of its Subsidiaries,
has directly or indirectly (i) made any contribution, gift, bribe, rebate,
payoff, influence payment, kickback, or other payment to any Person, private or
public, regardless of form, whether in money, property or services (A) to obtain
favorable treatment in securing business, (B) to pay for favorable treatment or
for business secured, or (C) to obtain special concessions or for special
concessions already obtained for or in respect of Able or any of its
Subsidiaries, or (ii) established or maintained any fund or asset that has not
been appropriately recorded in the books and records of Able or its
Subsidiaries, which in the case of either clause (i) or (ii) would be in
violation of Law.
SECTION 4.25 Customers and Suppliers. Since October 31, 1999,
there has been no termination (except by completion of performance) or
cancellation of, and no material modification or change in, any Material
Contract with (i) any customer or group of related customers which singly or, in
the aggregate, provided more than 2% of the consolidated gross revenues of Able
and its Subsidiaries for the fiscal year ended October 31, 1999, or (ii) any
suppliers to Able or its Subsidiaries which singly or in the aggregate
constituted more than 2% of the consolidated cost of services for such fiscal
year.
SECTION 4.26 Canadian Competition Act. The aggregate value of
the assets in Canada of Able and its Subsidiaries, determined in accordance with
the Competition Act (Canada), does not exceed $35 million Canadian Dollars. The
aggregate gross annual revenues from sales in or from Canada generated by those
assets, determined in accordance with the Competition Act (Canada), does not
exceed $35 million in Canadian Dollars.
SECTION 4.27 Rights Plan. To Able's Knowledge, none of Able's
stockholders are acting jointly or in concert with each other or have any
agreement, arrangement, commitment
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or understanding (whether formal or informal and whether or not in writing) with
any other Able stockholder or with any other Person acting jointly or in concert
with any other Able stockholder for the purpose of acquiring Bracknell Common
Stock pursuant to the Merger. For the purpose hereof, the phrase "jointly or in
concert" shall be interpreted consistent with Section 91 of the Securities Act
(Ontario).
SECTION 4.28 Compliance With Other Applicable Laws. Able and
its Subsidiaries have in effect all Permits necessary for them to own, lease or
operate the properties and assets of Able and its Subsidiaries and to carry on
the Business as now conducted, and there has not occurred any default under any
Permit, except for the absence of Permits and for defaults under Permits that
have not had an Able Material Adverse Effect. Able and its Subsidiaries are in
compliance with all Other Applicable Law, except where failure to so comply
would not reasonably be expected to have an Able Material Adverse Effect. Except
as set forth in Schedule 4.28, no investigation or review by any Governmental
Authority with respect to Able or any of its Subsidiaries is pending or to
Able's Knowledge, threatened.
SECTION 4.29 Insurance. Able and each of its Subsidiaries
maintains insurance with responsible and reputable insurers in such amounts and
covering such risks and with such deductibles as are generally maintained by
like businesses, the failure of which to maintain would or would have reasonably
be expected to have an Able Material Adverse Effect. The coverage under each
such policy is in full force and effect and Able and each of its Subsidiaries is
in good standing under such policies, unless the lack of such coverage or good
standing would not have or would not reasonably be expected to have an Able
Material Adverse Effect. Neither Able nor any of its Subsidiaries has received
notice of, or has any knowledge of, any fact, condition or circumstance which
might reasonably form the basis of any claim against Able or any of its
Subsidiaries which is not fully covered by insurance (subject to deductibles)
maintained by any of them unless such fact, condition or circumstance could not
reasonably be expected to have an Able Material Adverse Effect.
SECTION 4.30 Bonds. Schedule 4.30 lists all surety bonds
(including, without limitation, performance bonds, bid bonds, payment bonds,
labor and materials bonds, ▇▇▇▇ ▇▇▇▇▇, warranty bonds, maintenance bonds and any
replacement bonds) with respect to which Able or any of its Subsidiaries has
liability or indemnification obligations for an amount greater than $250,000.
SECTION 4.31. Bankruptcy and Insolvency Proceedings. No
proceeding (including a private proceeding) has been commenced by or against
Able or a Subsidiary of Able (i) seeking to adjudicate it bankrupt or insolvent;
(ii) seeking liquidation, dissolution, winding-up, reorganization, arrangement,
protection, relief or composition of it or any of its property or debt or making
a proposal with respect to it under any Law relating to bankruptcy, insolvency,
reorganization, or compromise of debts or other similar Laws (including, without
limitation, any case under Chapter 7 or Chapter 11 of the United States
Bankruptcy Code or any similar proceeding under applicable state Law); or (iii)
seeking appointment of a receiver, trustee, agent or custodian or other similar
official for it or for any substantial part of its properties and assets.
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SECTION 4.32 Broker's Fees. Except as disclosed on Schedule
4.32, there is no investment banker, broker, finder or other intermediary which
has been retained by or is authorized to act on behalf of Able, any of its
stockholders or any of its Subsidiaries who might be entitled to any fee or
commission in connection with the transactions contemplated by this Agreement.
SECTION 4.33 Vote Required. Except as contemplated by this
Agreement, the affirmative vote of the holders of a majority of the outstanding
Able Shares and Series E Shares, voting together as a single class, and the
affirmative vote of the holders of a majority of the outstanding Series C
Shares, voting as a separate class, at the Able Stockholder Meeting, are the
only votes of the holders of any classes or series of Able's capital stock
necessary to approve this Agreement and the transactions contemplated hereby.
SECTION 4.34 Opinion of Financial Advisor. Able has received
from a qualified financial advisor, a verbal opinion to the effect that, as of
the date hereof, the Conversion Number is fair to Able's Stockholders from a
financial point of view.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BRACKNELL AND SUBCO
Bracknell and Subco, jointly and severally, represent and
warrant to Able that:
SECTION 5.01 Corporate Existence and Power. Bracknell and each
of its Subsidiaries (including Subco) is a corporation duly organized, validly
existing and in good standing under the laws of its province or other
jurisdiction of incorporation or organization, has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted, and is duly qualified and in good standing to do
business in each jurisdiction in which the business it is conducting, or the
operation, ownership or leasing of its properties, makes such qualification
necessary, other than in such jurisdictions where the failure so to qualify
would not have a Bracknell Material Adverse Effect. For purposes of this
Agreement, a "Bracknell Material Adverse Change" or "Bracknell Material Adverse
Effect" means any change or effect, either individually or in the aggregate,
that is or may be reasonably expected to be materially adverse to the Business,
assets, liabilities, properties, financial condition or results of operations of
Bracknell and its Subsidiaries taken as a whole.
SECTION 5.02 Corporate Authorization. Bracknell and Subco have
all requisite corporate power and authority to enter into this Agreement and to
consummate the transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of Bracknell
and Subco, other than the approval of Bracknell's stockholders, if required by
regulatory authorities or under applicable Law. This Agreement has been duly
executed and delivered by Bracknell and Subco and constitutes a valid and
binding obligation of Bracknell and Subco enforceable in accordance with its
terms, subject to bankruptcy, insolvency, reorganization, fraudulent conveyance,
moratorium and similar Laws, now or hereafter in effect, affecting creditors'
rights and remedies and to general principles of equity.
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SECTION 5.03 Governmental Authorization. No consent, approval,
order or authorization of, or registration, declaration or filing with, or
Permit from any Governmental Authority is required by or with respect to
Bracknell or any of its Subsidiaries in connection with the execution, delivery
and performance of this Agreement by Bracknell or the consummation of the Merger
or the other transactions contemplated hereby, other than (i) compliance with
the applicable requirements of the HSR Act, the Exchange Act and the Securities
Act of 1933, (ii) the filing of the certificate of merger with the Secretary of
State of the State of Florida, and (iii) the filing with, and approval by, the
TSE of the conditional listing application and satisfaction of the conditions
contained therein, except where the failure of any action to be taken by any
Governmental Authority or any filing to be made would not have a Bracknell
Material Adverse Effect or prevent consummation of the Merger or the other
transactions contemplated hereby.
SECTION 5.04 Non-Contravention. The execution and delivery of
this Agreement by Bracknell and Subco does not, and the consummation of the
transactions contemplated hereby by Bracknell and Subco will not result in any
Violation pursuant to any provision of the certificate or articles of
incorporation or bylaws of Bracknell or any of its Subsidiaries or, except as
set forth on Schedule 5.04, or as to which requisite waivers or consents have
been obtained and assuming the consents, approvals, authorizations or permits
and filings or notifications referred to in this Section 5.04 are duly and
timely obtained or made, result in any Violation of any loan or credit
agreement, note, mortgage, indenture, Lease, Benefit Arrangement or other
agreement, obligation, instrument, Permit, concession, franchise, Order, or Law,
applicable to Bracknell or any of its Subsidiaries or their respective
properties or assets, except for any Violations which would not have a Bracknell
Material Adverse Effect.
SECTION 5.05 Capitalization.
(a) The entire authorized capital stock of Bracknell
consists of an unlimited number of common shares and an unlimited
number of preferred shares issuable in series (collectively the
"Authorized Bracknell Capital Stock"). Of the Authorized Bracknell
Capital Stock: 40,731,148 shares of Bracknell Common Stock and 0
preferred shares are validly issued and outstanding (as of November 14,
2000). Bracknell has granted options to purchase 4,185,594 shares of
Bracknell Common Stock within the reserves of Bracknell's stock option
plan at a weighted average exercise price of $5.36 in Canadian dollars
per share and has granted options to purchase 610,000 shares of
Bracknell Common Stock outside the reserves of Bracknell's stock option
plan (subject to the approval of Bracknell's stockholders to increase
the reserves under the plan) at a weighted average exercise price of
$7.52 in Canadian dollars per share (collectively, the "Bracknell Stock
Options"). Bracknell has also issued warrants to purchase 385,824
shares of Bracknell Common Stock at an exercise price of $4.25 per
share. Each of the aforesaid outstanding shares has been validly
issued, is fully paid and nonassessable, and has not been issued in
violation of any preemptive rights. Except as set forth on Schedule
5.05(a), no options, warrants or other rights to acquire, sell or issue
shares of capital stock of Bracknell are outstanding, and between the
date hereof and the Effective Time, (i) no shares of capital stock of
Bracknell and no such options, warrants or rights will be issued, and
(ii) none of such options shall vest or become exercisable as a result
of the Merger or
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change in ownership of Bracknell Common Stock or change in composition
of the Bracknell Board of Directors. At the Effective Time, the holders
of Able Shares and Series E Shares will receive good and valid title to
the shares of Bracknell Common Stock (constituting the "Merger
Consideration"), free and clear of all Liens and with no proxies or
restrictions on the voting or other rights pertaining thereto.
(b) No bonds, debentures, notes or other indebtedness
having the right to vote (or convertible into securities having the
right to vote) on any matters on which stockholders of Bracknell may
vote ("Bracknell Voting Debt") were issued or outstanding. Except as
set forth on Schedule 5.05(b), all outstanding shares of capital stock
or other ownership interests of the Subsidiaries of Bracknell are owned
by Bracknell or a direct or indirect wholly owned Subsidiary of
Bracknell, free and clear of all Liens. Except as set forth in this
Section 5.05, there are outstanding (i) no shares of capital stock,
Bracknell Voting Debt or other voting securities of Bracknell, (ii) no
securities of Bracknell or any Subsidiary of Bracknell convertible into
or exchangeable for shares of capital stock, Bracknell Voting Debt or
other voting securities of Bracknell or any Subsidiary of Bracknell, or
(iii) no options, warrants, calls, rights (including preemptive
rights), commitments or agreements to which Bracknell or any Subsidiary
of Bracknell is a party or by which it is bound obligating Bracknell or
any Subsidiary of Bracknell to issue, deliver, sell, purchase, redeem
or acquire, or cause to be issued, delivered, sold, purchased, redeemed
or acquired, additional shares of capital stock or any Bracknell Voting
Debt or other voting securities of Bracknell or any Subsidiary of
Bracknell or obligating Bracknell or any Subsidiary of Bracknell to
grant, extend or enter into any such option, warrant, call, right,
commitment or agreement. Except as set forth on Schedule 5.05(b), there
are no restrictions on the ability of Bracknell to vote the stock of
any of its Subsidiaries.
SECTION 5.06 Canadian Securities Law and Bracknell Financial
Statements
(a) Bracknell is a reporting issuer under the Securities
Act (Ontario), is not on the list of defaulting reporting issuers
maintained under such Act, and will deliver to Able after the date
hereof a true and complete copy of each quarterly, annual or other
form, report, filing or document filed by Bracknell with the
Governmental Authorities under the Securities Act (Ontario), or under
the rules, policies, listing agreements or other requirements of the
TSE or any other stock exchange on which any of Bracknell's securities
are listed and posted for trading ("Exchange Filing Requirements"),
since November 1, 1995, which are all the forms, reports, filings or
documents (other than preliminary material) that Bracknell was required
to file with the Governmental Authorities under the Securities Act
(Ontario), or pursuant to Exchange Filing Requirements, since November
1, 1995. Bracknell will deliver to Able after the date hereof, a true
and complete copy of each quarterly, annual or other report or filing
filed by Bracknell with the Governmental Authorities under the
Securities Act (Ontario), or Exchange Filing Requirements, subsequent
to the date of this Agreement and prior to the Closing Date. All of
such forms, reports, filings or documents filed prior to the date of
this Agreement are hereinafter referred to as the "Bracknell Disclosure
Documents." Bracknell has not filed any confidential material change
reports still maintained on a
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confidential basis. Bracknell is in compliance in all material respects
with applicable securities Laws of Ontario and other applicable
jurisdictions. Except with respect to the Merger, Bracknell is not
required to file any form, report, filing or other documents with the
SEC.
(b) As of their respective filing dates, the Bracknell
Disclosure Documents complied in all material respects with the
requirements of the Securities Act (Ontario), other applicable Law, and
Exchange Filing Requirements. As of their respective filing dates, none
of the Bracknell Disclosure Documents contained any untrue statement of
a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading.
(c) As of their respective filing dates, the financial
statements of Bracknell and its consolidated Subsidiaries included in
the Bracknell Disclosure Documents complied as to form in all material
respects with the Securities Act (Ontario) and the rules and
regulations of the Governmental Authorities under the Securities Act
(Ontario) with respect thereto, were prepared in accordance with
Canadian GAAP (except as disclosed in the notes to such financial
statements) and fairly present in accordance with applicable
requirements of Canadian GAAP (subject, in the case of the unaudited
financial statements, to normal year-end adjustments on a basis
comparable with past periods, the effect of which will not,
individually or in the aggregate, have a Bracknell Material Adverse
Effect) the consolidated financial position of Bracknell and its
consolidated Subsidiaries as of their respective dates and the
consolidated results of operations and the consolidated cash flows of
Bracknell and its consolidated Subsidiaries for the periods presented
therein.
SECTION 5.07 Proxy Statement/Prospectus; Registration
Statement. None of the information supplied by Bracknell for inclusion in (a)
the Proxy Statement/ Prospectus to be filed by Able and Bracknell with the SEC
and any amendments or supplements thereto or (b) the Registration Statement to
be filed by Bracknell with the SEC and any amendments or supplements thereto,
will, at the respective times when such documents are filed, and, in the case of
the Proxy Statement/Prospectus, at the time the Proxy Statement/Prospectus or
any amendment or supplement thereto is first mailed to stockholders of Able, at
the time of the Able Stockholder Meeting and at the Effective Time, and, in the
case of the Registration Statement, when it becomes effective under the
Securities Act of 1933, contain any untrue statement of a material fact or omit
to state any material fact necessary in order to make the statements made
therein, in the light of the circumstances under which they were made, not
misleading. All documents that Bracknell is responsible for filing with the SEC
in connection with the Merger will comply as to form in all material respects
with the applicable provisions of the Exchange Act, the Securities Act of 1933
and state securities Laws.
SECTION 5.08 No Undisclosed Material Liabilities. Except as
set forth in Schedule 5.08, there are no Liabilities of Bracknell or any of its
Subsidiaries and there is no existing condition, situation or set of
circumstances which, individually or in the aggregate, have or would reasonably
be expected to have a Bracknell Material Adverse Effect, other than:
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(a) Liabilities disclosed or provided for in Bracknell's
unaudited consolidated balance sheet contained in Bracknell's Second
Quarter Interim Report for the three months ended April 30, 2000;
(b) Liabilities incurred in the ordinary course of
business consistent with past practices since April 30, 2000, which in
the aggregate are not material to Bracknell or its Subsidiaries taken
as a whole; and
(c) Liabilities under this Agreement.
SECTION 5.09 Absence of Certain Changes. Except as set forth
on Schedule 5.09 or as described in any of the Bracknell Disclosure Documents,
since, April 30, 2000, Bracknell and its Subsidiaries have conducted their
business in all material respects in the ordinary course consistent with past
practices and there has not been:
(a) any event, occurrence or development or state of
circumstances or facts, which affects or relates to Bracknell, its
Subsidiaries or the industries in which any of them operate, which has
had or would reasonably be expected to have a Bracknell Material
Adverse Effect;
(b) any material amendment or termination of any material
contact or material Lease relating to the Business other than in the
ordinary course of business and which would, in the aggregate, not have
a Bracknell Material Adverse Effect;
(c) any material destruction, damage or other loss to any
of the assets of Bracknell or any of its Subsidiaries that is not
covered by insurance and which would not, in the aggregate, have a
Bracknell Material Adverse Effect;
(d) any material sale, lease or other disposition of any
of the assets of Bracknell or any of its Subsidiaries, other than
assets sold, leased or otherwise disposed of in the ordinary course of
business consistent with past practice and which would not, in the
aggregate, have a Bracknell Material Adverse Effect;
(e) any material purchase or lease of any assets by
Bracknell or any of its Subsidiaries, other than assets purchased or
leased in the ordinary course of business consistent with past practice
which would not, in the aggregate, have a Bracknell Material Adverse
Effect;
(f) any material increase in the compensation payable to
any of the employees of Bracknell or any of its Subsidiaries, except
for increases in the ordinary course of business and consistent with
past practice and which would, in the aggregate, not have a Bracknell
Material Adverse Effect; or
(g) any agreement or commitment by Bracknell or any of
its Subsidiaries to take any action described in this Section 5.09.
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SECTION 5.10 Litigation. Except as set forth on Schedule 5.10
there is no Action by any Person or by or before any Governmental Authority that
is pending or, to Bracknell's Knowledge, threatened by, against or affecting
Bracknell or its Subsidiaries or any of their respective assets that would have
a Bracknell Material Adverse Effect. Except as set forth on Schedule 5.10,
neither Bracknell nor any of its Subsidiaries is subject to any Order that would
have a Bracknell Material Adverse Effect.
SECTION 5.11 Taxes. Except as set forth on Schedule 5.11(i),
Bracknell and its Subsidiaries have timely filed all Returns required to be
filed by them on or before the date hereof, except where failure to timely file
would not have a Bracknell Material Adverse Effect. All such Returns are
complete and accurate except where the failure to be complete or accurate would
not have a Bracknell Material Adverse Effect. Bracknell and its Subsidiaries
have paid, or have set up an adequate reserve for the payment of, all Taxes
shown as due on such Returns, except where the failure to do so would not have a
Bracknell Material Adverse Effect. Bracknell's Second Quarter Interim Report for
the three months ended April 30, 2000 contains an adequate reserve for all Taxes
accrued by Bracknell and its Subsidiaries through April 30, 2000. Except as set
forth on Schedule 5.11(ii), no deficiencies for any Taxes have been asserted,
proposed or assessed against Bracknell or its Subsidiaries in writing that have
not been paid or otherwise settled or reserved against, except for deficiencies
the assertion, proposing or assessment of which would not have a Bracknell
Material Adverse Effect, and no waivers of the time to assess any such Taxes are
pending (other than for current Taxes not yet due and payable) on the assets of
Bracknell or any of its Subsidiaries.
SECTION 5.12 Tax Free Merger.
(a) Following the Merger, and as a result thereof, the
Surviving Corporation will hold at least 90 percent of the fair market
value of the net assets and at least 70 percent of the fair market
value of the gross assets held by Subco prior to the Merger (excluding
the Merger Consideration).
(b) Bracknell will acquire Able stock solely in exchange
for Bracknell voting stock, and in the Merger, shares of Able stock
representing control of Able, as defined in Section 368(c) of the Code,
will be exchanged solely for voting stock of Bracknell.
(c) Subco will have no liabilities assumed by the
Surviving Corporation, and will not transfer to the Surviving
Corporation in the Merger any assets subject to liabilities.
(d) There is no intercorporate indebtedness existing
between Bracknell and Able or between Subco and Able. Bracknell does
not own, directly or indirectly, nor has it owned during the past five
years, directly or indirectly, any stock of Able.
(e) Neither Bracknell nor Subco is an investment company
as defined in Section 368(a)(2)(F)(iii) and (iv) of the Code.
(f) Prior to the Merger, Bracknell will be in control of
Subco within the meaning of Section 368(c) of the Code.
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(g) Bracknell has no plan or intention as part of the plan of the
Merger to cause the Surviving Corporation to issue after the Effective Time
additional shares of stock that would result in Bracknell losing control of
the Surviving Corporation within the meaning of Section 368(c) of the Code,
or any warrants, options, convertible securities, or any other type of
right pursuant to which any person could acquire stock in the Surviving
Corporation that, if exercised or converted, would affect Bracknell's
acquisition or retention of control of the Surviving Corporation, as
defined in Section 368(c) of the Code.
(h) Bracknell has no plan or intention to reacquire any of the
Bracknell Common Stock issued in the Merger.
(i) Bracknell has no plan or intention to liquidate the Surviving
Corporation, to merge the Surviving Corporation with or into another
corporation or to sell or otherwise dispose of the Surviving Corporation
stock except for transfers of stock to a corporation controlled by
Bracknell.
(j) Bracknell will cause the Surviving Corporation to attach to a
timely filed U.S. income Tax Return for the taxable year in which the
Merger occurs the statement required by Section 1.367(a)-3(c)(6) of the
Treasury regulations issued under Section 367(a) of the Code.
(k) Following the Merger, the Surviving Corporation will continue
Able's historic business or use a significant portion of its historic
business assets in a business.
(l) Bracknell agrees to treat the Merger as a reorganization within the
meaning of Section 368(a) of the Code. This Agreement is intended to
constitute a "plan of reorganization" within the meaning of Section
1.368-2(g) of the income Tax regulations promulgated under the Code.
Neither Bracknell nor Subco has knowingly taken any action that would
jeopardize the qualification of the Merger as a reorganization within the
meaning of Section 368(a) of the Code. During the period from the date of
this Agreement through the Effective Time, unless all parties hereto shall
otherwise agree in writing, neither Bracknell nor Subco shall knowingly
take or fail to take any action which action or failure would jeopardize
the qualification of the Merger as a reorganization within the meaning of
Section 368(a) of the Code. Bracknell shall cause one or more of its
responsible officers to execute and deliver certificates to confirm the
accuracy of certain relevant facts as may be reasonably requested by
counsel in connection with the preparation and delivery of the tax opinion
described in Section 9.01(f).
(m) Following the Effective Time, Bracknell shall use its commercially
reasonable best efforts, and shall cause the Surviving Corporation to use
its commercially reasonable best efforts, to conduct its business and the
Surviving Corporation's business in a manner which would not jeopardize the
characterization of the Merger as a reorganization within the meaning of
Section 368(a) of the Code.
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SECTION 5.13 Compliance With Other Applicable Laws. Bracknell
and its Subsidiaries have in effect all Permits necessary for them to own, lease
or operate the properties and assets of Bracknell and its Subsidiaries and to
carry on the Business as now conducted, and there has not occurred any default
under any Permit, except for the absence of Permits and for defaults under
Permits that have not had a Bracknell Material Adverse Effect. Bracknell and its
Subsidiaries are in compliance with all Other Applicable Law, except where
failure to so comply would not have a Bracknell Material Adverse Effect. Except
as set forth in Schedule 5.13, no investigation or review by any Governmental
Authority with respect to Bracknell or any of its Subsidiaries is pending, or to
Bracknell's Knowledge, threatened.
SECTION 5.14 Brokers. Except as disclosed in Schedule 5.14, no
Person is or will become entitled to receive any brokerage or finder's fee,
advisory fee or other similar payment for the transactions contemplated by this
Agreement by virtue of having been engaged by or acted on behalf of Bracknell or
any of its Subsidiaries.
SECTION 5.15 Certain Payments. Excluding any matters that have
been resolved, to Bracknell's Knowledge, neither Bracknell, nor any of its
Subsidiaries, directors, officers, agents, employees, or any other Person
associated with or acting for or on behalf of Bracknell or any of its
Subsidiaries, has directly or indirectly (i) made any contribution, gift, bribe,
rebate, payoff, influence payment, kickback, or other payment to any Person,
private or public, regardless of form, whether in money, property, or services
(A) to obtain favorable treatment in securing business, (B) to pay for favorable
treatment in securing business, or (C) to obtain special concessions or for
special concessions already obtained, for or in respect of Bracknell or any of
its Subsidiaries, or (ii) established or maintained any fund or asset that has
not been appropriately recorded in the books or records of Bracknell or its
Subsidiaries, which in the case of either clause (i) or (ii) would be in
violation of Law.
SECTION 5.16 Interim Operations of Subco. Subco was formed
solely for the purpose of engaging in the transactions contemplated hereby, has
engaged in no other business activities and has conducted its operations only as
contemplated hereby.
SECTION 5.17 Authorization for Bracknell Common Stock. Prior
to the Closing Date, Bracknell will have taken all necessary action to permit it
to issue the number of shares of Bracknell Common Stock to be issued pursuant to
the terms of this Agreement. Shares of Bracknell Common Stock issued pursuant to
the terms of this Agreement will, when issued, be validly issued, fully paid and
nonassessable and no person will have any preemptive right of subscription or
purchase in respect thereof. Such shares of Bracknell Common Stock will be
conditionally listed on the TSE.
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ARTICLE VI
COVENANTS OF ABLE
Able agrees that:
SECTION 6.01 Conduct of Able. Except as expressly contemplated
by this Agreement or as disclosed in writing by Able prior to the date of this
Agreement, from the date hereof until the Effective Time, Able and its
Subsidiaries shall conduct their business in the ordinary course consistent with
past practice and shall use commercially reasonable efforts to preserve intact
their business organizations and relationships with third parties and to keep
available the services of their present officers and employees. Except as
otherwise approved in writing by Bracknell or as expressly contemplated by this
Agreement, and without limiting the generality of the foregoing, from the date
hereof until the Effective Time:
(a) Able will not adopt or propose any change in its articles
of incorporation or bylaws;
(b) Able will not, and will not permit any of its Subsidiaries
to, merge or consolidate with any other Person (other than another
wholly owned Subsidiary) or acquire a material amount of stock or
assets of any other Person;
(c) Able will not, and will not permit any of its Subsidiaries
to, sell, lease, license or otherwise dispose of any material assets or
property except (i) pursuant to existing contracts or commitments, (ii)
in the ordinary course consistent with past practice, or (iii)
transfers between Able and/or its Subsidiaries;
(d) Able will not declare or pay any dividends or make any
distributions on its issued and outstanding capital stock;
(e) except as set forth in Schedule 6.01(e), Able will not,
and will not permit any of its Subsidiaries to, (i) issue, deliver or
sell, or authorize or propose the issuance, delivery or sale of, any
Able Securities or Able Subsidiary Securities, (ii) split, combine or
reclassify any Able Securities or Able Subsidiary Securities or (iii)
except as required or permitted by this Agreement, repurchase, redeem
or otherwise acquire any Able Securities or, any Able Subsidiary
Securities;
(f) except as otherwise expressly permitted hereby, Able will
not make any commitment or enter into any contract or agreement
material to Able and its Significant Subsidiaries except in the
ordinary course of business consistent with past practice;
(g) Able will not, and will not permit any of its Subsidiaries
to, incur, assume or guarantee any further indebtedness (i) in an
amount equal to or less than $250,000 other than in the ordinary course
of business consistent with past practice and unless Able notifies
Bracknell promptly after any such obligation arises, or (ii) in an
amount greater than $250,000 (in any one transaction or a series of
related transactions);
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(h) Able will not, and will not permit any of its Subsidiaries
to, take or agree to or commit to take any action that would make any
representation and warranty of Able hereunder inaccurate in any
material respect at, or as of any time prior to, the Effective Time;
and
(i) Able will not, and will not permit any of its Subsidiaries
to, agree or commit to do any of the foregoing.
SECTION 6.02 Stockholder Meeting. Able shall cause a meeting
of its stockholders to be duly called and held as soon as reasonably
practicable, but in no event later than December 31, 2000 (the "Able Stockholder
Meeting"), for the purpose of voting on the approval and adoption of this
Agreement, the Merger and the other transactions contemplated hereby, and any
other item of business required by or consented to in writing by Bracknell
acting reasonably. The directors of Able shall, unless otherwise required in
accordance with their fiduciary duties as advised by counsel, recommend approval
and adoption of this Agreement and the Merger by Able's stockholders. In
connection with such meeting, Able will, subject to the foregoing and Section
6.04, use its commercially reasonable best efforts to obtain the necessary
approvals by its stockholders of the matters referred to above in this Section
6.02 and such other matters as are required by the Florida General Corporation
Law, and will otherwise comply with all legal requirements applicable to such
meetings.
SECTION 6.03 Access to Information. From the date hereof until
the Effective Time, Able will give Bracknell, its counsel, financial advisors,
environmental consultants, auditors and other authorized representatives access
to the offices, properties, books and records of Able and its Subsidiaries, will
furnish to Bracknell, its counsel, financial advisors, environmental
consultants, auditors and other authorized representatives such financial and
operating data and other information as such Persons may reasonably request and
will instruct Able's employees, counsel and financial advisors to cooperate with
Bracknell in its investigation of the business of Able and its Subsidiaries;
provided that no investigation pursuant to this Section shall affect any
representation or warranty given by Able to Bracknell hereunder; and further
provided that, such access is at normal business hours and does not materially
interfere with the conduct of Able's Business.
SECTION 6.04 Other Offers.
(a) Able will not, nor will it permit any of its Subsidiaries
to, nor will it authorize or permit any officer, director or employee
of, or any investment banker, attorney, accountant or other advisor or
representative of, Able or any of its Subsidiaries to, directly or
indirectly, (i) solicit, initiate or encourage the submission of any
Acquisition Proposal (as defined below) or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any
information in respect of, or take any other action to facilitate, any
Acquisition Proposal or any inquiries or the making of any proposal
that constitutes, or may reasonably be expected to lead to, any
Acquisition Proposal; provided, however, that nothing contained in this
Section 6.04(a) shall prohibit the Able Board of Directors from
furnishing any information to, or entering into discussions or
negotiations with, any person that makes an unsolicited bona fide
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Acquisition Proposal if, and only to the extent that (A) the Able
Stockholder Meeting shall not have occurred, (B) the Able Board of
Directors, after consultation with outside legal counsel, determines in
good faith that the failure to take such action would be inconsistent
with its fiduciary duties to Able's stockholders under applicable Law,
as such duties would exist in the absence of any limitation in this
Agreement, (C) the Able Board of Directors determines in good faith
that such Acquisition Proposal is reasonably likely to lead to a
transaction that, if accepted, is reasonably likely to be consummated
taking into account all legal, financial, regulatory and other aspects
of the proposal and the person making the proposal, and believes in
good faith, after consultation with its financial advisor and after
taking into account the strategic benefits to be derived from the
Merger and the long-term prospects of Bracknell and its Subsidiaries,
based on the information available to the Able Board of Directors at
the time, that such Acquisition Proposal would, if consummated, result
in a transaction more favorable to Able's stockholders than the Merger
(any such more favorable Acquisition Proposal being referred to herein
as a "Superior Proposal"), and (D) prior to taking such action, Able
(x) provides reasonable notice to Bracknell to the effect that it is
taking such action and (y) receives from the Person submitting such
Acquisition Proposal an executed confidentiality/standstill agreement
in reasonably customary form and in any event containing terms at least
as stringent as those contained in the Term Sheet between Bracknell and
WorldCom and Able. "Acquisition Proposal" means an inquiry, offer or
proposal regarding any of the following (other than the transactions
contemplated by this Agreement) involving Able or any of its
Subsidiaries: (w) any merger, consolidation, share exchange,
recapitalization, business combination or other similar transactions;
(x) any sale, lease, exchange, mortgage, pledge, transfer or other
disposition of all or substantially all the assets of Able and its
Subsidiaries, taken as a whole, in a single transaction or series of
related transactions; (y) any tender offer or exchange offer for 20% or
more of the outstanding Able Shares or the filing of a registration
statement under the Securities Act of 1933 in connection therewith; or
(z) any public announcement of a proposal, plan or intention to do any
of the foregoing or any agreement to engage in any of the foregoing.
(b) Able shall notify Bracknell of any Acquisition Proposal
(including, the material terms and conditions thereof and the identity
of the Person making it) as promptly as practicable (but in no case
later than 24 hours) after its receipt thereof, and shall thereafter
inform Bracknell on a prompt basis of the status of any discussions or
negotiations with such third party, and any material changes to the
terms and conditions of such Acquisition Proposal, and shall promptly
give Bracknell a copy of any information delivered to such Person which
has not previously been reviewed by Bracknell.
(c) Able has ceased and terminated, and has caused its
Subsidiaries and Affiliates, and their respective officers, directors,
employees, investment bankers, attorneys, accountants and other agents
and representatives to cease and terminate, any existing activities,
discussions or negotiations with any parties conducted heretofore in
respect of any possible Acquisition Proposal. Able shall take all
necessary steps to
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promptly inform the individuals or entities referred to in the first
sentence of Section 6.04(a) of the obligations undertaken in this
Section 6.04.
(d) The Able Board of Directors will not withdraw or modify,
or propose to withdraw or modify, in a manner adverse to Bracknell, its
approval or recommendation of the Merger unless the Able Board of
Directors, after consultation with outside legal counsel, determines in
good faith that the failure to take such action would be inconsistent
with its fiduciary duties to Able's stockholders under applicable Law;
provided, however, that the Able Board of Directors may not approve or
recommend an Acquisition Proposal (and in connection therewith,
withdraw or modify its approval or recommendation of the Merger) unless
such an Acquisition Proposal is a Superior Proposal (and Able shall
have first complied with its obligations set forth in Section 10.02 and
the time referred to in the last sentence of Section 10.02 has expired)
and unless it shall have first consulted with outside legal counsel,
and have determined that the failure to take such action would be
inconsistent with its fiduciary duties to Able's stockholders.
(e) Nothing contained in this Section 6.04 shall prohibit Able
from taking and disclosing to its stockholders a position contemplated
by Rule 14d-9 or Rule 14e-2(a) promulgated under the Exchange Act or
from making any disclosure to Able's stockholders which, in the good
faith reasonable judgment of the Able Board of Directors, after
consultation with outside legal counsel, is required under applicable
Law; provided, however, that except as otherwise permitted in this
Section 6.04, Able does not withdraw or modify, or propose to withdraw
or modify, its position in respect of the Merger or approve or
recommend, or propose to approve or recommend, an Acquisition Proposal.
(f) Notwithstanding anything contained in this Agreement to
the contrary, any action by the Able Board of Directors permitted by,
and taken in accordance with, this Section 6.04 shall not constitute a
breach of this Agreement by Able. Nothing in this Section 6.04 shall
(i) permit Able to terminate this Agreement (except as provided in
Article X hereof) or (ii) affect any other obligations of Able under
this Agreement.
SECTION 6.05 Notice of Certain Events. Able shall promptly
notify Bracknell in writing of:
(i) any notice or other communication from any Person
alleging that the consent of such Person (or another Person)
is or may be required in connection with the transactions
contemplated by this Agreement;
(ii) any notice or other communication from any
Governmental Authority or regulatory agency or authority in
connection with the transactions contemplated by this
Agreement; and
(iii) any Actions, suits, claims, investigations or
proceedings commenced or, to Able's Knowledge threatened
against, relating to or involving
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or otherwise affecting Able or any of its Subsidiaries which,
if pending on the date of this Agreement, would have been
required to have been disclosed pursuant to Section 4.16 or
Section 6.17 or which relate to the consummation of the
transactions contemplated by this Agreement.
SECTION 6.06 Affiliates. To ensure that the issuance of
Bracknell Common Stock in the Merger complies with the Securities Act of 1933,
prior to the Effective Time, Able shall cause to be delivered to Bracknell a
list identifying each Person who might at the time of the Able Stockholder
Meeting be deemed to be an "affiliate" of Able for purposes of Rule 145 under
the Securities Act of 1933 (each, a "Securities Act Affiliate"). Able shall use
its commercially reasonable best efforts to obtain from each Person who is
identified as a possible Securities Act Affiliate prior to the Effective Time an
agreement (a "Securities Act Affiliate Agreement") providing that such person
(i) has not made and will not make any disposition of Able Shares in the 30 day
period prior to the Effective Time and (ii) will not offer to sell, or otherwise
dispose of any Bracknell Common Stock issued to such person in the Merger in
violation of the Securities Act of 1933.
SECTION 6.07 Litigation. Able shall use its commercially
reasonable best efforts to resolve all Material Litigation as reasonably
directed by Bracknell.
SECTION 6.08 Officers. Able shall use its commercially
reasonable best efforts to cause the officers and employees of Able and its
Subsidiaries identified in writing by Bracknell after the date hereof to enter
into, as applicable, (i) severance agreements on economic terms which are
substantially similar to the severance entitlements those officers and employees
have under their existing employment contracts with Able or its Subsidiaries,
and (ii) retention agreements which are reasonably satisfactory to Bracknell.
SECTION 6.09 Certain Rights to Acquire Able Shares. Able shall
use its commercially reasonable best efforts to cause the holders of all
outstanding rights to acquire Able Shares set forth on Schedule 2.02(j), to
consent, if necessary, to the conversion of those rights in the manner set forth
in Section 2.02(j). Able shall use its commercially reasonable best efforts to
cause the former stockholders of GEC, SASCO and SES set forth in Schedule 6.09
to consent to accept Bracknell Common Stock in lieu of any rights they may have
had to receive Able Shares on terms and conditions reasonably satisfactory to
Bracknell.
SECTION 6.10 Bracknell Option. Able shall take all necessary
action to cause an increase in the authorized number of Able Shares and the
reservation of a sufficient number of authorized and unissued Able Shares to
permit the issuance to Bracknell of that number of Able Shares that Bracknell is
entitled to acquire at any time upon the exercise of the option in the form of
Exhibit B which was granted to Bracknell as of the date hereof (the "Bracknell
Option"). Able shall not take any action which would prevent the exercise of the
Bracknell Option or the issuance of the number of Able Shares that Bracknell is
entitled to acquire upon the exercise of the Bracknell Option at any time.
SECTION 6.11 Employee Stock Options. Able shall use its
commercially reasonable best efforts to cause the directors and officers of Able
and its Subsidiaries listed on
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Schedule 4.05(a)(i)(2) to consent to the conversion of the Able Stock Options as
provided for in Section 7.08.
SECTION 6.12 Support Agreements. Able shall use its
commercially reasonable best efforts to (i) cause the Series C Stockholders to
enter into support agreement in the form attached as Exhibit C and (ii) cause
▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ to enter into the support agreements in the
form attached as Exhibit E.
SECTION 6.13 Sale of Businesses. Able shall use its
commercially reasonable best efforts to cooperate with Bracknell to facilitate
transactions, if available, involving the sale, assignment, transfer or other
disposition of certain businesses conducted by Able or its Subsidiaries as
directed by Bracknell.
SECTION 6.14 WorldCom Series E Debt. Able shall use its
commercially reasonable best efforts to effect the conversion, on or prior to
the record date for the Able Stockholder Meeting, of $37,000,000 of indebtedness
owing from Able to WorldCom pursuant to an amended and restated Finance
Agreement between WorldCom and Able, dated as of April 1, 1999 (the "WorldCom
Series E Debt") into Series E Shares with an aggregate face value of
$37,000,000. The Series E Shares shall be issued only if the terms and
conditions of the Series E Shares are those which are set out in Exhibit I.
SECTION 6.15 Canadian Competition Act. Able shall notify
Bracknell promptly if (i) the aggregate value of the assets in Canada of Able
and its Subsidiaries, determined in accordance with the Competition Act
(Canada), exceeds $35 million Canadian dollars; or (ii) the aggregate gross
annual revenues from sales in or from Canada generated by those assets,
determined in accordance with the Competition Act (Canada), exceed $35 million
Canadian dollars.
SECTION 6.16 Opinion of Financial Advisor. Able shall obtain
from a qualified financial advisor, prior to the finalization of the Proxy
Statement/Prospectus, a written opinion of a type customary in transactions
similar to those contemplated hereby, regarding whether the Conversion Number is
fair to Able's stockholders from a financial point of view. Able shall provide a
copy of such opinion to Bracknell promptly after it becomes available.
SECTION 6.17 Bankruptcy and Insolvency Proceedings. Without
Bracknell's prior written consent, Able shall not, and shall not permit any of
its Subsidiaries to, institute any proceeding (i) seeking to adjudicate Able or
any of its Subsidiaries bankrupt or insolvent, or (ii) seeking liquidation,
dissolution, winding-up, reorganization, arrangement, protection, relief or
composition of its property or debt or making a proposal with respect to it
under any Law relating to bankruptcy, insolvency, reorganization or compromise
of debts or other similar Laws (including, without limitation, any case under
Chapter 7 or Chapter 11 of the United States Bankruptcy Code or any similar
proceeding under applicable state Law). Able shall promptly provide written
notice to Bracknell if any Person commences a proceeding against Able or any of
its Subsidiaries described under clause (i) or (ii) of this Section 6.20 or
seeks to appoint a receiver, trustee, agent, custodian or other similar official
for Able or any of its Subsidiaries or for any substantial part of their
properties and assets.
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ARTICLE VII
COVENANTS OF BRACKNELL AND SUBCO
Bracknell and Subco agree that:
SECTION 7.01 Conduct of Bracknell and Subco. Except as
expressly contemplated by this Agreement, from the date hereof until the
Effective Time, Bracknell and its Subsidiaries shall conduct their business in
the ordinary course consistent with past practice and shall use their
commercially reasonable best efforts to preserve intact their business
organizations and relationships with third parties and to keep available the
services of their present officers and employees. Except as otherwise approved
in writing by Able or as expressly contemplated by this Agreement, and without
limiting the generality of the foregoing, from the date hereof until the
Effective Time:
(a) Bracknell and Subco will not adopt or propose any change
in their certificates of incorporation or bylaws;
(b) Bracknell will not, and will not permit any of its
Subsidiaries to, take or agree or commit to take any action that would
make any representation and warranty of Bracknell or Subco hereunder
inaccurate in any material respect at, or as of any time prior to, the
Effective Time; and
(c) Bracknell will not, and will not permit any of its
Subsidiaries to, agree or commit to do any of the foregoing.
SECTION 7.02 Access to Information. From the date hereof until
the Effective Time, Bracknell will give Able, its counsel, financial advisors,
auditors and other authorized representatives access to the offices, properties,
books and records of Bracknell and its Subsidiaries, will furnish to Able, its
counsel, financial advisors, auditors and other authorized representatives such
financial and operating data and other information as such Persons may
reasonably request and will instruct Bracknell's employees, counsel and
financial advisors to cooperate with Able in its investigation of the business
of Bracknell and its Subsidiaries; provided that no investigation pursuant to
this Section shall affect any representation or warranty given by Bracknell to
Able hereunder; and provided further that, such access is at normal business
hours and does not materially interfere with the conduct of Bracknell's
Business.
SECTION 7.03 Obligations of Subco. Bracknell will take all
action necessary to cause Subco to perform its obligations under this Agreement
and to consummate the Merger on the terms and conditions set forth in this
Agreement.
SECTION 7.04 Stock Exchange Listing. Bracknell shall use its
commercially reasonable best efforts to cause the shares of Bracknell Common
Stock to be issued in the Merger and those to be issued upon the exercise of the
Replacement Options to be conditionally approved for listing on the TSE prior to
the Effective Time.
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SECTION 7.05 Notice of Certain Events. Each of Bracknell and
Subco shall promptly notify Able in writing of:
(a) any notice or other communication from any Person alleging
that the consent of such Person (or another Person) is or may be
required in connection with the transactions contemplated by this
Agreement;
(b) any notice or other communication from any Governmental
Authority or regulatory agency or authority in connection with the
transactions contemplated by this Agreement; and
(c) any Actions, suits, claims, investigations or proceedings
commenced or, to the best of its knowledge threatened against, relating
to or involving or otherwise affecting it or any of its Subsidiaries
which, if pending on the date of this Agreement, would have been
required to have been disclosed pursuant to Section 5.10 or which
relate to the consummation of the transactions contemplated by this
Agreement.
SECTION 7.06 Financing Relating to the Merger. Bracknell shall
use commercially reasonable best efforts to obtain the financing necessary to
complete the transactions contemplated by this Agreement on terms satisfactory
to it.
SECTION 7.07 Opinion of Financial Advisor. Bracknell shall use
commercially reasonable efforts to obtain from a qualified financial advisor, an
opinion of a type customary in transactions similar to those contemplated
hereby, regarding whether the Merger Consideration to be provided pursuant to
this Agreement is fair to Bracknell and its stockholders from a financial point
of view. Bracknell shall provide a copy of such opinion to Able promptly after
it becomes available.
SECTION 7.08 Replacement Options. Bracknell will use its
commercially reasonable best efforts to grant options to acquire Bracknell
Common Stock (the "Replacement Options"), in substitution or exchange for the
existing Able Stock Options, to the directors, officers and employees of Able
and its Subsidiaries listed on Schedule 4.05(a)(i)(1) and Schedule 4.05(a)(i)(2)
(the "Option Recipients") who hold Able Stock Options as of the date hereof. The
Replacement Options will be granted with the following terms and conditions: (i)
the Replacement Options shall be exercisable to purchase the number of shares of
Bracknell Common Stock that the corresponding Able Stock Options were
exercisable to purchase multiplied by 0.6; (ii) the exercise price of the
Replacement Options shall be the exercise price(s) of the corresponding Able
Stock Options multiplied by 1.67; and (iii) the unexpired term and vesting
schedule of the Replacement Options will be the same as that of the Able Stock
Options (as if the Merger had not taken place). The Replacement Options will be
granted subject to the approval of the Bracknell Board of Directors, the
approval of the Bracknell stockholders of an increase in the reserves under
Bracknell's existing stock option plan and the approval of the TSE. In the case
of the Able Stock Options issued pursuant to the Able stock option plan, the
Replacement Options will be issued pursuant to the terms and conditions of
Bracknell's existing stock option plan. In the case of the Able Stock Options
issued outside of the Able stock option
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plan, Bracknell may elect to grant the Replacement Options inside of Bracknell's
existing stock option plan or outside of that plan.
ARTICLE VIII
COVENANTS OF BRACKNELL, SUBCO AND ABLE
The parties hereto agree that:
SECTION 8.01 Commercially Reasonable Best Efforts. Subject to
the terms and conditions of this Agreement, each party will use its commercially
reasonable best efforts to take, or cause to be taken, all actions and to do, or
cause to be done, all things necessary, proper or advisable under applicable
Laws to consummate the transactions contemplated by this Agreement.
SECTION 8.02 Certain Filings. Bracknell and Able shall
cooperate with one another (a) in connection with the preparation of the
Registration Statement and Proxy Statement/Prospectus, and (b) in determining
whether any action by or in respect of, or filing with, any Governmental
Authority is required, or any actions, consents, approvals or waivers are
required to be obtained from parties to any Material Contracts, in connection
with the consummation of the transactions contemplated by this Agreement and (c)
in seeking any such actions, consents, approvals or waivers or making any such
filings, furnishing information required in connection therewith or with the
Registration Statement and Proxy Statement/Prospectus and seeking timely to
obtain any such actions, consents, approvals or waivers.
SECTION 8.03 Public Announcements. Bracknell and Able will
consult with each other before issuing any press release or making any public
statement with respect to this Agreement and the transactions contemplated
hereby and, except as may be required by applicable Law or any listing agreement
with any applicable securities exchange or interdealer quotation system, will
not issue any such press release or make any such public statement prior to such
consultation.
SECTION 8.04 Further Assurances. At and after the Effective
Time, the officers and directors of the Surviving Corporation will be authorized
to execute and deliver, in the name and on behalf of Able or Subco, any deeds,
bills of sale, assignments or assurances and to take and do, in the name and on
behalf of Able or Subco, any other actions and things to vest, perfect or
confirm of record or otherwise in the Surviving Corporation any and all right,
title and interest in, to and under any of the rights, properties or assets of
Able acquired or to be acquired by the Surviving Corporation as a result of, or
in connection with, the Merger.
SECTION 8.05 Preparation of the Proxy Statement/Prospectus and
Registration Statement. Bracknell and Able shall promptly prepare and file with
the SEC a preliminary version of the Proxy Statement/Prospectus and will use
their commercially reasonable best
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efforts to respond to the comments of the SEC in connection therewith and to
furnish all information required to prepare the definitive Proxy
Statement/Prospectus. After receiving comments from the SEC, Bracknell shall
promptly file with the SEC the Registration Statement containing the Proxy
Statement/Prospectus. Each of Bracknell and Able shall use its commercially
reasonable best efforts to have the Registration Statement declared effective
under the Securities Act of 1933 as promptly as practicable after such filing.
Bracknell shall also take any action (other than qualifying to do business in
any jurisdiction in which it is not now so qualified or filing a general consent
to service of process in any jurisdiction) required to be taken under any
applicable state securities Laws in connection with the issuance of Bracknell
Common Stock in the Merger and Able shall furnish all information concerning
Able and the holders of Able Shares as may be reasonably requested in connection
with any such action. Promptly after the effectiveness of the Registration
Statement, Able will cause the Proxy Statement/Prospectus to be mailed to its
stockholders, and if necessary, after the definitive Proxy Statement/Prospectus
shall have been mailed, promptly circulate amended, supplemented or supplemental
proxy materials and, if required in connection therewith, resolicit proxies.
ARTICLE IX
CONDITIONS TO THE MERGER
SECTION 9.01 Conditions to the Obligations of Each Party. The
obligations of Bracknell, Able and Subco to consummate the Merger are subject to
the satisfaction on or before the Closing Date of each of the following
conditions:
(a) this Agreement shall have been adopted by the requisite
vote of the stockholders of Able in accordance with the Florida General
Corporation Law;
(b) any applicable waiting period under the HSR Act relating
to the Merger shall have expired;
(c) no provision of any applicable Law and no Order of a court
of competent jurisdiction shall restrain or prohibit the consummation
of the Merger;
(d) the Registration Statement shall have been declared
effective and no stop order suspending the effectiveness of the
Registration Statement shall be in effect and no proceedings for such
purpose shall be pending before the SEC;
(e) the shares of Bracknell Common Stock to be issued in the
Merger and those to be issued on the exercise of the Replacement
Options shall have been conditionally approved for listing on the TSE;
(f) Bracknell and Able shall have received an opinion from
▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to Able, or other
recognized tax counsel, based upon certain assumptions and factual
representations of Able, Bracknell and Subco reasonably requested by
such counsel, dated the Closing Date, to the effect that the Merger
will be treated for U.S. federal income Tax purposes as a
reorganization within the meaning of
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Section 368(a) of the Code, in form and substance reasonably
satisfactory to Able and Bracknell; and
(g) this Agreement shall not have been terminated pursuant to
Article X.
SECTION 9.02 Additional Conditions Precedent to the
Obligations of Bracknell. The obligations of Bracknell to consummate the Merger
and complete the transactions contemplated hereby shall be also subject to the
fulfillment, or waiver by Bracknell, on or before the Closing Date, of each of
the following additional conditions:
(a) Able shall have performed in all material respects all of
its obligations hereunder required to be performed by it on or prior to
the Closing Date, the representations and warranties of Able contained
in this Agreement shall be true in all material respects at and as of
the Closing Date as if made on and as of such date, and Bracknell shall
have received a certificate signed by an executive officer of Able to
the foregoing effect;
(b) WorldCom shall not be in breach of any term of the
Commitment Agreement in the form attached as Exhibit D;
(c) ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ shall have entered into
support agreements in the form attached as Exhibit E and shall not be
in breach of those agreements;
(d) the Series C Stockholders shall have entered into support
agreements with Able in the form attached as Exhibit C and shall not be
in breach of those agreements;
(e) neither Able nor WorldCom Network Services, Inc. shall be
in breach of any term of the Amended and Restated Master Services
Agreement in the form attached as Exhibit F;
(f) Able shall not be in breach of the applicable terms of the
Sirit Settlement;
(g) Bracknell shall have obtained financing necessary to
complete the transactions contemplated by this Agreement on terms
reasonably satisfactory to it;
(h) except as agreed in writing by Bracknell, all outstanding
Material Litigation shall have been settled or otherwise resolved on
terms reasonably satisfactory to Bracknell;
(i) the officers and employees of Able and its Subsidiaries
identified by Bracknell pursuant to Section 6.08 shall have entered
into, as applicable, (i) severance agreements on economic terms which
are substantially similar to the severance entitlements those officers
and employees have under their existing employment contracts with Able
or its Subsidiaries, and (ii) retention agreements which are on terms
reasonably satisfactory to Bracknell;
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(j) all of the outstanding rights to acquire Able securities,
excluding the Able Warrants and the Bracknell Option, if any, shall
have been terminated or cancelled;
(k) the former stockholders of GEC, SASCO and SES set forth in
Schedule 6.09 shall have agreed in writing to accept Bracknell Common
Stock in lieu of any rights they may have had to receive Able Shares on
terms reasonably satisfactory to Bracknell;
(l) holders of no more than 5% of the Able Shares outstanding
immediately prior to the Closing Date shall have complied with all
requirements for perfecting stockholders' rights of appraisal as set
forth under the Florida General Corporation Law with respect to such
shares;
(m) notwithstanding any of the representations and warranties
of Able contained herein (and the information set out in any of the
corresponding schedules), as a result of Bracknell's due diligence
review of (a) each of the documents and materials required to be made
available pursuant to Article IV and Section 6.03, (b) any document or
material referenced in any Schedule, and (c) any report prepared by
Bracknell's environmental consultants, or any other events or
circumstances which Bracknell becomes aware of, Bracknell shall not
have learned prior to the Effective Time any information which, in the
reasonable judgement of Bracknell, individually, or in the aggregate,
constitutes or would reasonably be expected to constitute an Able
Material Adverse Effect or an Able Material Adverse Change;
(n) notwithstanding any of the representations and warranties
of Able contained herein (and the information set out in any of the
corresponding schedules), there shall not be, and there shall not have
occurred, any circumstance, event, condition, change or development or
any set of circumstances, events, conditions, changes or developments,
which, in the reasonable judgement of Bracknell, has or have or would
reasonably be expected to have, individually or in the aggregate, an
Able Material Adverse Effect or an Able Material Adverse Change;
(o) on or prior to the record date for the Able Stockholder
Meeting, the WorldCom Series E Debt shall have been converted into
Series E Shares with an aggregate face value of $37,000,000;
(p) Bracknell shall have obtained the requisite approval from
its stockholders to enter into this Agreement if such approval is
required by any regulatory authority or under applicable Law;
(q) Able shall have obtained from a qualified financial
advisor, a written opinion of a type customary in transactions similar
to those contemplated hereby, to the effect that the Conversion Number
is fair to Able's stockholders from a financial point of view, and Able
shall have provided a copy of such opinion to Bracknell;
(r) Bracknell shall have obtained from a qualified financial
advisor, an opinion of a type customary in transactions similar to
those contemplated hereby, to the
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effect that the Merger Consideration to be provided pursuant to this
Agreement is fair to Bracknell and its stockholders from a financial
point of view.
(s) Bracknell shall have received the necessary consents to
enter into the transactions contemplated hereby and by the Commitment
Agreement and the Amended and Restated Master Services Agreement
pursuant to the Second Amended and Restated Credit Agreement, dated as
of July 21, 2000 between Bracknell, Nationwide Electric, Inc. and The
State Group Limited as borrowers, certain financial institutions as
lenders and Royal Bank of Canada as administrative agent;
(t) no proceeding (including a private proceeding) shall have
been commenced by or against Able or an Able Significant Subsidiary (i)
seeking to adjudicate it bankrupt or insolvent; (ii) seeking
liquidation, dissolution, winding-up, reorganization, arrangement,
protection, relief or composition of it or any of its property or debt
or making a proposal with respect to it under any Law relating to
bankruptcy, insolvency, reorganization, or compromise of debts or other
similar Laws (including, without limitation, any case under Chapter 7
or Chapter 11 of the United States Bankruptcy Code or any similar
proceeding under state Law); or (iii) seeking appointment of a
receiver, trustee, agent or custodian or other similar official for it
or for any substantial part of its properties and assets;
(u) Bracknell shall have received the opinion of Paul,
Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP, counsel to Able, dated the Closing
Date, addressed to Bracknell, substantially in the form of Exhibit G,
and an opinion relating to the Subsidiaries of Able substantially in
the form of Exhibit G by counsel to Able reasonably satisfactory to
Bracknell;
(v) Bracknell shall have received a copy of the resolutions of
the Board of Directors of Able authorizing the Merger, the issuance of
the Bracknell Option and the other transactions contemplated hereby,
which copy shall be certified by an executive officer of Able.
SECTION 9.03 Additional Conditions Precedent to the
Obligations of Able. The obligations of Able to consummate the Merger and
complete the transactions contemplated hereby shall also be subject to the
fulfillment, or waiver by Able, on or before the Closing Date, of each of the
following additional conditions:
(a) Bracknell and Subco shall have performed in all material
respects all of their respective obligations hereunder required to be
performed by them at or prior to the Closing Date, the representations
and warranties of Bracknell and Subco contained in this Agreement shall
be true in all material respects at and as of the Closing Date as if
made on and as of such date, and Able shall have received a certificate
signed by an executive officer of each of Bracknell and Subco to the
foregoing effect;
(b) Able shall have received the opinion of Torys, counsel to
Bracknell, dated the Closing Date, addressed to Able, substantially in
the form of Exhibit H; and
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(c) Able shall have received copies of the resolutions of the
Board of Directors of Bracknell and the Board of Directors of Subco
authorizing the Merger, which copies shall be certified by an executive
officer of Bracknell and Subco, respectively.
ARTICLE X
TERMINATION
SECTION 10.01 Termination by Bracknell or Able. This Agreement
may be terminated and the Merger may be abandoned at any time prior to the
Closing (notwithstanding any approval of this Agreement by the stockholders of
Able):
(a) by mutual written consent of Bracknell and Able;
(b) by either Bracknell or Able in writing, if any one or
more of the conditions to its obligation to consummate the Merger has
not been fulfilled by February 1, 2001 (provided that the right to
terminate this Agreement under this clause shall not be available to
any party whose failure to fulfill any of its obligations under this
Agreement has been the cause of or resulted in the non-fulfillment of
one or more of the conditions referred to above by such date);
(c) by either Bracknell or Able, if there shall be any
applicable Law that makes consummation of the Merger illegal or
otherwise prohibited or if any Order of a court of competent
jurisdiction shall restrain or prohibit the consummation of the Merger,
and such Order shall become final and nonappealable;
(d) by either Bracknell or Able in writing, if the
stockholder approval referred to in Section 9.01(a) shall not have been
obtained by February 1, 2001, by reason of the failure to obtain the
requisite vote at the Able Stockholder Meeting or at any adjournment
thereof;
(e) (i) by Bracknell in writing, if (x) there has been a
breach by Able of any representation or warranty
of Able contained in this Agreement which, in the
reasonable judgement of Bracknell, would have or
would be reasonably likely to have an Able
Material Adverse Effect, or (y) there has been
any material breach of any of the covenants or
agreements of Able set forth in this Agreement,
which breach is not curable or, if curable is not
cured within 30 days after written notice of such
breach is given by Bracknell to Able; provided
that Able shall not have the right to cure any
such Breach after February 1, 2001; or
(ii) by Able in writing, if (x) there has been a
breach by Bracknell of any representation or
warranty of Bracknell contained in this Agreement
which would have or would be reasonably likely to
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have a Bracknell Material Adverse Effect, or (y)
there has been any material breach of any of the
covenants or agreements of Bracknell set forth in
this Agreement, which breach is not curable or,
if curable, is not cured within 30 days after
written notice of such breach is given by Able to
Bracknell; provided that Bracknell shall not have
the right to cure any such Breach after February
1, 2001; or
(f) (i) by Bracknell in writing, if there shall have been
after the date hereof (x) a change, event or
occurrence on or before the date of such
termination which, in the reasonable judgement of
Bracknell, would constitute an Able Material
Adverse Change, or (y) any change of Law on or
before the date of such termination shall have
occurred which, in the reasonable judgement of
Bracknell has or will have an Able Material
Adverse Effect, excluding however, any change,
condition, event or occurrence which affects the
industry of Able generally and also affects
Bracknell; or
(ii) by Able in writing, if there shall have been
after the date hereof (x) a change, event or
occurrence on or before the date of such
termination which would constitute a Bracknell
Material Adverse Change, or (y) any change of Law
on or before the date of such termination shall
have occurred which, in the reasonable judgement
of Able has or will have a Bracknell Material
Adverse Effect, excluding however, any change,
condition, event or occurrence which affects the
industry of Bracknell generally and also affects
Able.
SECTION 10.02 Termination by Able. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Closing by
action of the Able Board of Directors in writing, if (i) Able is not in breach
of Section 6.04, (ii) the Merger shall not have been approved by the Able
stockholders, (iii) the Able Board of Directors authorizes Able, subject to
complying with the terms of this Agreement, to enter into a binding written
agreement concerning a transaction that constitutes a Superior Proposal and Able
promptly notifies Bracknell in writing that it intends to enter into such an
agreement, attaching the most current version of such agreement to such notice,
and (iv) during the three business day period after Able's notice, (A) Able
shall have negotiated with, and shall have caused its respective financial and
legal advisors to negotiate with, Bracknell to attempt to make such commercially
reasonable adjustments in the terms and conditions of this Agreement as would
enable Able to proceed with the transactions contemplated hereby, and (B) the
Able Board of Directors shall have concluded, after considering the results of
such negotiations, that any Superior Proposal giving rise to Able's notice
continues to be a Superior Proposal. Able may not effect such termination unless
contemporaneously therewith Able pays to Bracknell in immediately available
funds the fees required to be paid pursuant to Section 10.04. Able agrees (x)
that it will not enter into a binding agreement referred to in clause (iii)
above until at least the day following the third business day after it has
provided the notice to Bracknell required thereby, and (y) to notify Bracknell
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promptly if its intention to enter into a written agreement referred to in its
notification shall change at any time after giving such notification.
SECTION 10.03 Termination by Bracknell. This Agreement may be
terminated and the Merger may be abandoned at any time prior to the Closing by
Bracknell in writing, if either (i) Able enters into a binding agreement for a
Superior Proposal, or (ii) the Able Board of Directors shall have withdrawn or
adversely modified its approval or recommendation of the Merger.
SECTION 10.04 Effect of Termination.
(a) If this Agreement is terminated pursuant to Sections
10.01, 10.02, or 10.03, this Agreement shall become void and of no
effect with no liability on the part of any party hereto, except that
(i) the agreements contained in Section 11.04 and Section 10.04 shall
survive the termination hereof, and (ii) the parties shall be liable
for any willful breaches hereof.
(b) In the event that (i) a bona fide Acquisition Proposal
shall have been made or any person shall have publicly announced an
intention (whether or not conditional) to make a bona fide Acquisition
Proposal in respect of Able or any of its Subsidiaries and thereafter
this Agreement is terminated by either Bracknell or Able pursuant to
Section 10.01(d) or by Bracknell pursuant to Section 10.01(e) as a
result of a material breach by Able of any of the covenants set forth
in Section 6.04 hereof, or (ii) this Agreement is terminated by Able
pursuant to Section 10.02, or (iii) this Agreement is terminated by
Bracknell pursuant to Section 10.03, then on the date of such
termination Able shall pay Bracknell a termination fee of $3,000,000 as
liquidated damages in immediately available funds and the Bracknell
Option shall become exercisable according to its terms.
(c) In the event that this Agreement is terminated by
Bracknell or Able pursuant to Section 10.01(d) or by Bracknell pursuant
to Section 10.01(e) (other than as described in clause 10.04(b)(i) and
other than as a result of a breach of Section 6.08 by Able), then Able
shall pay Bracknell a termination fee of $3,000,000 as liquidated
damages in immediately available funds on the date of such termination.
(d) Able acknowledges that the agreements contained in
Sections 10.04(b) and (c) are an integral part of the transactions
contemplated by this Agreement, and that, without these agreements,
Bracknell and Subco would not have entered into this Agreement;
accordingly, if Able fails to promptly pay the amount due pursuant to
Section 10.04(b) or (c), and, in order to obtain such payment,
Bracknell commences a suit which results in a judgment against Able for
the fee set forth in Section 10.04(b) or (c), Able shall pay to
Bracknell its costs and expenses (including attorneys' fees) in
connection with such suit, together with interest from the date of
termination of this Agreement on the amounts owed at the rate of 8.5%
per annum.
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ARTICLE XI
MISCELLANEOUS
SECTION 11.01 Notices. All notices, requests and other
communications to any party hereunder shall be in writing (including facsimile,
telex or similar writing) and shall be given, if to Bracknell or Subco, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
President and Chief Executive Officer
Bracknell Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
Corporate Counsel and Secretary
Bracknell Corporation
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Torys
Suite 3000 Maritime Life Tower
▇.▇. ▇▇▇ ▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇ ▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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if to Able, to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
Executive Vice President and General Counsel
Able Telcom Holding Corp.
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, Esq.
Paul, Hastings, ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, LLP
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to the other parties hereto. Each such notice, request
or other communication shall be effective (i) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section and
the appropriate confirmation is received or (ii) if given by any other means,
when delivered at the address specified in this Section.
SECTION 11.02 Survival of Representations and Warranties. The
representations and warranties and agreements contained herein and in any
certificate or other writing delivered pursuant hereto shall not survive the
Effective Time, except Section 6.04, Section 7.05, Section 7.08 and Article II.
SECTION 11.03 Amendments; No Waivers.
(a) Any provision of this Agreement may be amended or waived
prior to the Closing if, and only if, such amendment or waiver is in
writing and signed, in the case of an amendment, by Bracknell, Subco
and Able or, in the case of a waiver, by the party against whom the
waiver is to be effective; provided that (i) any waiver or amendment
shall be effective against a party only if the Board of Directors of
such party approves such waiver and (ii) after the adoption of this
Agreement by the stockholders of Able, no such amendment or waiver
shall, without the further approval of such stockholders and each
party's Board of Directors, alter or change (x) the amount or kind of
consideration to be received in exchange for any shares of capital
stock of Able, (y) any term of the certificate of incorporation of the
Surviving Corporation, or (z) any of the terms or conditions of this
Agreement if such alteration or change would adversely affect the
holders of any shares of capital stock of Able.
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(b) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor
shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or
privilege. The rights and remedies herein provided shall be cumulative
and not exclusive of any rights or remedies provided by law.
SECTION 11.04 Fees and Expenses.
(a) Except as otherwise provided in this Section, all costs
and expenses incurred in connection with this Agreement shall be paid
by the party incurring such cost or expense.
(b) Bracknell agrees promptly to reimburse Able in immediately
available funds for all of Able's reasonable documented out-of-pocket
expenses (up to a maximum of $250,000), but in no event later than
three business days after the termination of this Agreement, in the
event that Bracknell does not consummate the transactions contemplated
by this Agreement other than as a result of a condition to Bracknell's
obligation to consummate the Merger not being satisfied.
(c) Able and Bracknell shall each pay one-half of all costs
and expenses related to compliance with the requirements of the HSR
Act, printing, filing and mailing the Registration Statement and the
Proxy Statement/Prospectus and all SEC and other regulatory filing
fees.
SECTION 11.05 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns, provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
Agreement without the consent of the other parties hereto.
SECTION 11.06 Governing Law. This Agreement shall be construed
in accordance with and governed by the Law of the State of Florida.
SECTION 11.07 Counterparts; Effectiveness. This Agreement may
be signed in any number of counterparts, each of which shall be an original,
with the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
SECTION 11.08 Entire Agreement. This Agreement and the Term
Sheet Agreement dated July 7, 2000 between Bracknell, Able and WorldCom
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all prior agreements, understandings and
negotiations, both written and oral, between the parties with respect to the
subject matter of this Agreement. No representation, inducement, promise,
understanding, condition or warranty not set forth herein has been made or
relied upon by either party hereto. Neither this Agreement nor any provision
hereof is intended to confer upon any Person other than the parties hereto any
rights or remedies hereunder except for the provisions of Article I, which are
intended for the benefit of Able's stockholders.
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SECTION 11.09 Exhibits and Schedules. The Exhibits and
Schedules are a part of this Agreement as if fully set forth herein. All
references herein to Sections, Exhibits and Schedules shall be deemed references
to such parts of this Agreement, unless the context shall otherwise require.
SECTION 11.10 Headings. The headings in this Agreement are for
reference only, and shall not affect the interpretation of this Agreement.
SECTION 11.11 Severability of Provisions. If any provision or
any portion of any provision of this Agreement shall be held invalid or
unenforceable, the remaining portion of such provisions and the remaining
provisions of this Agreement shall not be affected thereby. If the application
of any provision or any portion of any provision of this Agreement to any Person
or circumstance shall be held invalid or unenforceable, the application of such
provision or portion of such provision to Persons or circumstances other than
those as to which it is held invalid or unenforceable shall not be affected
thereby.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
BRACKNELL CORPORATION
By:
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Title:
ABLE TELCOM HOLDING CORP.
By:
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Title:
BRACKNELL ACQUISITION CORPORATION
By:
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Title:
64
