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Exhibit 99(C)(1)
AGREEMENT AND PLAN OF MERGER
BY AND AMONG
GPU, INC.,
MYR GROUP INC. AND
GPX ACQUISITION CORP.
DATED AS OF DECEMBER 21, 1999
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TABLE OF CONTENTS
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1. The Offer and the Merger 1
1.1 The Offer 1
1.2 MYR Actions 3
1.3 Directors; Section 14(f) 4
1.4 The Merger 5
1.5 Certificate of Incorporation 5
1.3 Bylaws 5
1.7 Directors and Officers 5
1.8 Effective Time 5
1.9 Effects of the Merger 6
2. Effect of the Merger on the Capital Stock of the Constituent Corporations 6
2.1 Effect on Capital Stock 6
2.2 Payment of Merger Consideration and Exchange of Certificates 8
2.3 Dissenting Shares 9
3. Closing 10
3.1 Closing 10
4. Representations and Warranties of MYR 10
4.1 Organization, Power and Authority of MYR and its Subsidiaries 10
4.2 Capital Stock of MYR 11
4.3 Due Authorization; Binding Obligation; Noncontravention 12
4.4 SEC Reports 12
4.5 Financial Statements 12
4.6 Liabilities 13
4.7 Tax Matters 13
4.8 Real Estate 14
4.9 Title to and Condition of Assets 16
4.10 Licenses and Permits 16
4.11 Proprietary Rights 16
4.12 Adequacy of Assets; Relationships with its Customers and Suppliers;
Related Party Transactions; Restrictive Covenants 16
4.13 Certain Documents and Information 17
4.14 Insurance 17
4.15 Litigation 18
4.16 Records 18
4.17 No Material Adverse Change 18
4.18 Absence of Certain Acts or Events 18
4.19 Compliance with Laws 19
4.20 Environmental Matters 19
4.21 Labor Relations 20
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4.22 Employee Benefits 21
4.23 Contract Revenue 22
4.24 Accuracy of Schedule 14D-9, Proxy Statement 23
4.25 Investment Bankers' and Brokers' Fees 23
4.26 Takeover Laws 23
4.27 Fairness Opinion 23
4.28 Year 2000 23
4.29 Vote Required 24
5. Representations and Warranties of GPU and Merger Subsidiary 24
5.1 Organization, Power and Authority of GPU and Merger Subsidiary 24
5.2 Due Authorization; Binding Obligation; Noncontravention 24
5.3 No Prior Activities; Assets of Merger Subsidiary 25
5.4 Accuracy of Offer Documents, Proxy Statement 25
5.5 Investment Bankers' and Brokers' Fees 25
5.6 Availability of Funds 25
6. Actions Prior to the Effective Time 25
6.1 Approval of MYR Stockholders; Securities Law Matters; Merger
Without Meeting of Stockholders; Acquisition Proposals 25
6.2 Access to Information; Due Diligence Investigations 28
6.3 Disclosure Schedule Supplement;Notice of Material Developments;
Furnishing of Certain Information 28
6.4 Maintenance of MYR as Going Concern 29
6.5 Absence of Material Changes 29
6.6 Reasonable Best Efforts 30
6.7 Publicity 30
6.8 Nonsolicitation 30
6.9 ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇.▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇
▇. Conditions to the Obligations of GPU and Merger Subsidiary 31
7.1 Receipt of Necessary Consents 31
7.2 HSR Act Waiting Period 31
7.3 No Restraint 31
7.4 Corporate Action 31
7.5 Purchase of Shares in Offer 32
8. Conditions to Obligation of MYR 32
8.1 Receipt of Necessary Consents 32
8.2 HSR Act Waiting Period 32
8.3 No Restraint 32
8.4 Corporate Action 32
8.5 Purchase of Shares in Offer 32
9. Certain Additional Agreements 33
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9.1 Indemnification of Directors and Officers 33
9.2 Benefit Plans 33
10. Miscellaneous 34
10.1 Amendment and Modification 34
10.2 Expenses 34
10.3 Certain Definitions 35
10.4 Termination 35
10.5 Binding Effect; Third Party Beneficiaries 36
10.6 Entire Agreement 37
10.7 Headings 37
10.8 Execution in Counterpart 37
10.9 Notices 37
10.10 Governing Law 38
10.11 Further Assurances 38
10.12 No Individual Liability 38
10.13 Nonsurvival of Representations and Warranties 39
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AGREEMENT AND PLAN OF MERGER
This Agreement and Plan of Merger (the "Agreement") is made and entered
into as of this 21st day of December, 1999, by and among GPU, Inc., a
Pennsylvania corporation ("GPU"), MYR Group Inc., a Delaware corporation
("MYR"), and GPX Acquisition Corp., a Delaware corporation ("Merger
Subsidiary").
RECITALS
This Agreement provides for the acquisition of MYR by GPU pursuant to
the Offer (as defined in Section 1.1) by GPU to acquire for cash all the
outstanding shares of common stock of MYR and the subsequent merger of Merger
Subsidiary, a newly-created wholly-owned subsidiary of GPU, with and into MYR,
with MYR being the surviving corporation in the merger. In the merger the
outstanding shares of common stock of MYR will be converted into cash on the
basis provided for herein.
This Agreement sets forth the representations and warranties made by
GPU, MYR and Merger Subsidiary, sets forth certain covenants and agreements of
the parties, provides conditions to the obligations of the parties and sets
forth other provisions relating to the Offer and the merger.
The Board of Directors of each of GPU, MYR and Merger Subsidiary have
approved and adopted the merger upon the terms and subject to the conditions set
forth in this Agreement.
COVENANTS
In consideration of the mutual representations, warranties and
covenants and subject to the conditions contained herein, the parties hereto
agree as follows:
1. THE OFFER AND THE MERGER
1.1 THE OFFER.
1.1.1 As promptly as practicable (but in no event later than
five business days after the date of this Agreement), GPU shall cause
Merger Subsidiary to commence (within the meaning of Rule 14d-2 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act"))
an offer (the "Offer") to purchase all the outstanding shares of common
stock, par value $.01 per share (the "MYR Common Stock"), of MYR at a
price of $30.10 per share, net to the seller in cash (the "Offer
Price"), and, subject to the conditions of the Offer, shall use all
reasonable efforts to consummate the Offer as promptly as permitted by
law. The obligation of GPU and Merger Subsidiary to consummate the
Offer and to accept for payment and to pay for any shares of MYR Common
Stock tendered pursuant to the Offer (i) shall be subject to the
condition that such number of shares of MYR Common Stock shall have
been validly tendered and not withdrawn prior to the expiration date of
the Offer that, together with the shares of MYR Common Stock
beneficially owned by GPU and any affiliate of GPU on that date,
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constitute more than 50.1% of the MYR Common Stock, assuming exercise
and conversion of all outstanding options and convertible securities of
MYR (the "Minimum Condition") and (ii) shall be subject to the other
conditions set forth in Annex A to this Agreement. The Offer shall be
further subject to all of the applicable terms and conditions of Rule
51 under the Public Utility Holding Company Act of 1935, as amended
("PUHCA").
1.1.2 Neither GPU nor Merger Subsidiary shall, without the
consent of MYR, waive the Minimum Condition. Otherwise, the conditions
of the Offer are for the sole benefit of Merger Subsidiary and GPU
regardless of the circumstances giving rise to the non-fulfillment of
any such conditions and may be waived by Merger Subsidiary and GPU in
whole or in part. MYR agrees that no shares of the MYR Common Stock
held by MYR shall be tendered pursuant to the Offer. GPU and Merger
Subsidiary may modify the terms of the Offer, except that, without the
consent of MYR, they shall not (i) reduce the number of shares of MYR
Common Stock to be purchased in the Offer, (ii) reduce the Offer Price,
(iii) modify or add to the conditions set forth in Annex A, (iv) except
as provided in the next sentence, extend the Offer, (v) change the form
of consideration payable in the Offer, or (vi) amend any other term of
the Offer in a manner adverse to the holders of MYR Common Stock.
Notwithstanding the foregoing, GPU and Merger Subsidiary may, without
the consent of MYR, (i) extend the Offer, from time to time, beyond any
scheduled expiration date (the initial scheduled expiration date being
February 29, 2000) for a period not to exceed 20 business days, if at
any scheduled expiration date of the Offer, any of the conditions to
Merger Subsidiary's obligation to accept for payment, and pay for,
shares of MYR Common Stock shall not be satisfied or waived, until such
time within such 20 business day period as Merger Subsidiary shall
reasonably conclude is necessary after all such conditions are
satisfied or waived, (ii) extend the Offer for any period required by
any rule, regulation, interpretation or position of the Securities and
Exchange Commission (the "SEC") or the staff thereof applicable to the
Offer, and (iii) extend the Offer for an aggregate period of not more
than 15 business days beyond the latest expiration date that would
otherwise be permitted under clause (i) or (ii) of this sentence if
there shall not have been tendered sufficient shares of MYR Common
Stock so that the Merger could be effected as provided in Section
6.1.2(b). In addition to the foregoing, GPU may provide for a
"subsequent offering period," to the extent provided in Rule 14d-11
under the Exchange Act, as in effect as of January 24, 2000, after the
purchase of shares of MYR Common Stock pursuant to the Offer. Subject
to the terms and conditions of the Offer and this Agreement, Merger
Subsidiary shall, and GPU shall cause Merger Subsidiary to accept for
payment, and pay for, all shares of MYR Common Stock validly tendered
and not withdrawn pursuant to the Offer that Merger Subsidiary becomes
obligated to accept for payment, and pay for, pursuant to the Offer as
required by Regulation 14D under the Exchange Act.
1.1.3 As soon as practicable on the date of commencement of
the Offer, Merger Subsidiary shall file with the SEC a Tender Offer
Statement on Schedule 14D-1 with respect to the Offer, which will
contain the offer to purchase and form of the related letter of
transmittal (which, together with any supplements or amendments to
those documents, are collectively referred to as the "Offer
Documents"). The Merger Subsidiary and GPU
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shall cause the Offer Documents to comply in all material respects with
the provisions of applicable federal securities laws and, on the date
filed with the SEC and on the date first published, sent or given to
MYR's stockholders, not to contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they are made, not misleading (except that
neither GPU nor Merger Subsidiary shall be responsible with respect to
information supplied by MYR in writing for inclusion in the Offer
Documents). Each of GPU, Merger Subsidiary and MYR shall promptly
correct any information provided by it for use or used in the Offer
Documents, if and to the extent such information shall have become
false or misleading in any material respect, and Merger Subsidiary and
GPU shall take all steps necessary to cause the Offer Documents as so
corrected to be filed with the SEC and to be disseminated to holders of
shares of MYR Common Stock, in each case as and to the extent required
by applicable federal securities laws. MYR and its counsel shall be
given a reasonable opportunity to review and comment upon the Offer
Documents and all amendments and supplements thereto prior to their
filing with the SEC or dissemination to stockholders of MYR. GPU and
Merger Subsidiary agree to provide MYR and its counsel any comments
GPU, Merger Subsidiary or their counsel may receive from the SEC or its
staff with respect to the Offer Documents promptly after the receipt of
such comments and copies of any written responses and telephone
notification of any verbal responses by GPU, Merger Subsidiary and
their counsel.
1.1.4 As soon as practicable following the execution of this
Agreement, GPU and Merger Subsidiary shall file with the SEC an
Application on Form U-1 under PUHCA, seeking authorization thereunder
to acquire the MYR Common Stock and to consummate the Merger and the
other transactions contemplated hereby (the "1935 Act Order").
1.1.5 GPU shall provide or cause to be provided to Merger
Subsidiary on a timely basis the funds necessary to accept for payment,
and pay for, any shares of MYR Common Stock that Merger Subsidiary
accepts for payment, and becomes obligated to pay for, pursuant to the
Offer.
1.2 MYR ACTIONS. MYR hereby consents to the Offer and represents and
warrants to GPU and Merger Subsidiary that its board of directors (at a meeting
duly called and held) has unanimously (i) determined that as of the date of such
meeting the Offer and the Merger (as defined in Section 1.4) are fair to, and in
the best interests of, MYR's stockholders, (ii) approved this Agreement and the
transactions contemplated by this Agreement, including the Offer, and the
Merger, and (iii) resolved, subject to Section 6.1.3 and its fiduciary duties
under applicable law, to recommend acceptance of the Offer and approval and
adoption of this Agreement and the Merger by the stockholders of MYR. MYR shall
file with the SEC contemporaneously with the commencement of the Offer a
Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9")
containing that recommendation in favor of the Offer and the Merger. MYR shall
cause the Schedule 14D-9 to comply in all material respects with the provisions
of applicable federal securities laws. MYR shall cause the Schedule 14D-9, on
the date filed with the SEC and on the date first published, sent or given to
MYR's stockholders, not to contain any untrue statement of a material fact or to
omit to state any material fact required to be stated therein or
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necessary in order to make the statements therein, in light of the circumstances
under which they are made, not misleading (except that MYR shall not be
responsible with respect to information supplied by GPU or Merger Subsidiary in
writing for inclusion in the Schedule 14D-9). MYR shall take all steps necessary
to cause the Schedule 14D-9 to be filed with the SEC and mailed to MYR's
stockholders to the extent required by applicable federal securities laws. MYR
shall include in the Schedule 14D-9, on the date first published, sent or given
to MYR's stockholders, such information with respect to MYR's officers and
directors as is required under Section 14(f) of the Exchange Act and Rule 14f-1
thereunder in order to fulfill its obligations under Section 1.3. GPU and Merger
Subsidiary shall supply MYR with, and be solely responsible for, any information
with respect to themselves and their nominees, officers, directors and
affiliates required by Section 14(f) and Rule 14f-1. Each of MYR, GPU and Merger
Subsidiary agrees promptly to correct any information provided by it for use in
the Schedule 14D-9 if and to the extent that such information shall have become
false or misleading in any material respect, and MYR further agrees to take all
steps necessary to amend or supplement the Schedule 14D-9 and to cause the
Schedule 14D-9 as so amended or supplemented to be filed with the SEC and
disseminated to MYR's stockholders, in each case as and to the extent required
by applicable federal securities laws. GPU and its counsel shall be given a
reasonable opportunity to review and comment upon the Schedule 14D-9 and all
amendments and supplements thereto prior to their filing with the SEC or
dissemination to stockholders of MYR. MYR agrees to provide GPU and its counsel
with any comments MYR or its counsel may receive from the SEC or its staff with
respect to the Schedule 14D-9 promptly after the receipt of such comments with
copies of any written response and telephone notification of any verbal
responses by MYR and its counsel. In connection with the Offer, MYR shall
promptly furnish Merger Subsidiary with mailing labels, security position
listings and any available listing or computer file containing the names and
addresses of the record holders of the MYR Common Stock as of a recent date, and
shall furnish Merger Subsidiary with such information and assistance as Merger
Subsidiary or its agents may reasonably request in communicating the Offer to
the stockholders of MYR. Subject to the requirements of law, and except for such
steps as are necessary to disseminate the documents constituting the Offer and
any other documents necessary to consummate the Merger, GPU and Merger
Subsidiary shall, and shall cause each of their affiliates and associates to,
hold in confidence the information contained in any such labels, lists and other
documents, to use such information only in connection with the Offer and the
Merger, and, if this Agreement is terminated, to deliver to MYR all copies of
such information then in their possession.
1.3 DIRECTORS; SECTION 14(f). Promptly upon the purchase by GPU or
Merger Subsidiary of at least a majority of the outstanding shares of MYR Common
Stock and from time to time thereafter, GPU and Merger Subsidiary shall be
entitled to designate such number of directors, rounded up to the next whole
number but in no event more than one less than the total number of directors of
the board of directors of MYR, as will give GPU and Merger Subsidiary, subject
to compliance with Section 14(f) of the Exchange Act, representation on the
board of directors of MYR equal to the product of the number of directors on the
board of directors of MYR and the percentage that such number of shares of MYR
Common Stock so purchased bears to the number of shares of MYR Common Stock
outstanding, and MYR shall, upon request by GPU and Merger Subsidiary, promptly
increase the size of the board of directors of MYR or exercise all reasonable
efforts to secure the resignations of such number of directors as is
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necessary to enable GPU's and Merger Subsidiary's designees to be elected to the
board of directors of MYR and shall cause such designees to be so elected. At
the request of GPU and Merger Subsidiary, MYR shall take, at its expense, all
action necessary to effect any such election, including mailing to its
stockholders the information required by Section 14(f) of the Exchange Act and
Rule 14f-1 thereunder. From and after the date that such designees to the board
of directors of MYR constitute a majority of the board of directors of MYR, any
action taken by MYR under this Agreement shall require the approval of a
majority of the members of the board of directors, if any, who are not designees
or affiliates of GPU and Merger Subsidiary provided, that if there shall be no
such directors, this Agreement shall not be amended to reduce the Merger
Consideration to be less than the Offer Price or otherwise amended in a manner
materially adverse to the holders of shares of MYR Common Stock other than GPU
and Merger Subsidiary or amended to permit the Merger to occur prior to March
23, 2000.
1.4 THE MERGER. Upon the terms and subject to the conditions hereof,
and in accordance with the Delaware General Corporation Law (the "DGCL"), Merger
Subsidiary shall be merged with and into MYR (the "Merger"), at the Effective
Time (as hereinafter defined). Following the Merger, MYR shall continue as the
surviving corporation and the separate existence of Merger Subsidiary shall
cease.
1.5 CERTIFICATE OF INCORPORATION. The certificate of incorporation of
MYR shall be the certificate of incorporation of the surviving corporation of
the Merger, except that it shall be amended effective at the Effective Time as
provided in Exhibit 1.5 hereto.
1.6 BYLAWS. The bylaws of Merger Subsidiary shall be the bylaws of the
surviving corporation of the Merger.
1.7 DIRECTORS AND OFFICERS. The directors and officers of the surviving
corporation shall be as determined by GPU, and they shall hold office from the
Effective Time until their respective successors are duly elected or appointed
in the manner provided in the bylaws of the surviving corporation or as
otherwise provided by law and GPU as the sole stockholder of the surviving
corporation at and after the Effective Time shall take such action and shall
cause the Board of Directors of the surviving corporation to take such action as
may be necessary or appropriate to elect such persons as directors and officers
of the surviving corporation at the Effective Time.
1.8 EFFECTIVE TIME. The Merger shall become effective at the time set
forth in the certificate of merger, substantially in the form set forth in
Exhibit 1.8, in accordance with the provisions of the DGCL (the "Certificate of
Merger"), which time shall be on the date (which shall not be earlier than March
23, 2000) but after the filing of the Certificate of Merger. The time when the
Merger shall become effective is herein referred to as the "Effective Time." The
Effective Time shall occur on the Closing Date (as defined in Section 3.1).
1.9 EFFECTS OF THE MERGER. The Merger shall have the effects set forth
in the DGCL.
2. EFFECT OF THE MERGER ON THE CAPITAL STOCK OF THE CONSTITUENT CORPORATIONS
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2.1 EFFECT ON CAPITAL STOCK. As of the Effective Time, by virtue of the
Merger and without any action on the part of any holder of shares of MYR Common
Stock or shares of common stock of Merger Subsidiary (the "Merger Subsidiary
Stock"):
2.1.1 Each share of Merger Subsidiary Stock issued and
outstanding immediately prior to the Effective Time shall be converted
into one share of common stock, $0.01 par value, of MYR.
2.1.2 Each issued and outstanding share of MYR Common Stock
immediately before the Effective Time shall be converted into the right
to receive, and shall be exchangeable for, the highest price paid
pursuant to the Offer, subject to applicable withholding or back-up
withholding taxes, if any, payable to the holder thereof, without any
interest thereon (the "Merger Consideration"), upon surrender of the
certificates representing such shares of MYR Common Stock.
2.1.3 STOCK OPTIONS. As of the Effective Time, each
outstanding stock option to purchase shares of MYR Common Stock (each,
an "MYR Stock Option") shall, by virtue of the Merger and without any
action on the part of the holder thereof, entitle the holder thereof to
receive in settlement of the exercisable portion thereof a cash payment
from MYR in an amount (the "Option Cash-Out Amount"), if any, equal to
the product of (i) the excess of the Merger Consideration over the per
share exercise price of such MYR Stock Option, and (ii) the total
number of shares of MYR Common Stock which the holder of such MYR Stock
Option is entitled to purchase under such portion of the MYR Stock
Option (whereupon such portion of the MYR Stock Option shall be
canceled). Each MYR Stock Option, or portion thereof, that is not
exercisable at the Effective Time, shall be canceled as of such time
and the holder thereof shall become entitled to receive on the date
such MYR Stock Option, or portion thereof, otherwise would have become
exercisable a cash payment from MYR in an amount equal to the Option
Cash-Out Amount. GPU agrees to make cash in an amount equal to the
aggregate Option Cash-Out Amount available to MYR as required to enable
MYR to honor its obligations under this Section 2.1.3. Notwithstanding
the foregoing, subject to the receipt of any required regulatory
approvals, within 20 business days after the Effective Time each holder
of an MYR Stock Option may elect in writing, in lieu of the cash
settlement set forth in the first two sentences of this Section 2.1.3,
to have any of such outstanding MYR Stock Options assumed by GPU, which
assumed MYR Stock Options shall continue to have, and be subject to,
the same terms and conditions set forth in the stock option plans and
agreements pursuant to which the MYR Stock Options were issued as in
effect immediately prior to the Effective Time, except that (a) such
assumed MYR Stock Options shall be exercisable for that number of whole
shares of GPU Common Stock equal to the product of the number of shares
of MYR Common Stock covered by the assumed MYR Stock Option immediately
prior to the Effective Time multiplied by the number (the "Exchange
Ratio") determined by dividing the Merger Consideration by the average
closing price of GPU Common Stock for the five (5) trading days
immediately preceding the Effective Time, rounded up to the nearest
whole number of shares of GPU Common Stock, (b) the per share exercise
price for the GPU Common Stock issuable upon the exercise of such
assumed MYR Stock Option shall be equal to the quotient
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determined by dividing the exercise price per share specified for such
MYR Stock Option under the applicable MYR Stock Option plan or
agreement immediately prior to the Effective time by the Exchange
Ratio, rounding the resulting exercise price down to the nearest whole
cent, and (c) such assumed MYR Stock Options shall not be entitled to
receive any amounts with respect to dividends paid on the shares of GPU
Common Stock covered by such Stock Options. The date of grant of any
MYR option so assumed shall be the date on which the MYR Stock Option
was originally granted. GPU shall (i) reserve for issuance the number
of shares of GPU Common Stock that will become issuable upon the
exercise of such assumed MYR Stock Options pursuant to this Section
2.1.3 and (ii) at the Effective Time, execute a document evidencing the
assumption by GPU of MYR's obligations with respect thereto under this
Section 2.1.3. Except as set forth in the Disclosure Schedule, nothing
in this Section 2.1.3 shall affect the schedule of vesting (or the
acceleration thereof) of the MYR Stock Options, assumed or not assumed
by GPU pursuant to the terms of this Section 2.1.3 in accordance with
the terms thereof. As soon as practicable after the Effective Time, GPU
shall file a registration statement on Form S-8 (or any successor
form), or another appropriate form, with respect to the shares of GPU
Common Stock subject to such assumed MYR Stock Options and shall use
its best efforts to maintain the effectiveness of such registration
statement or registration statements (and maintain the current status
of the prospectus or prospectuses contained therein) for so long as
such options remain outstanding.
SECTION 2.1.4 RESTRICTED STOCK. As of the Effective Time, each
outstanding award of MYR restricted stock ("MYR Restricted Stock")
shall, by virtue of the Merger and without any action on the part of
the holder thereof, entitle the holder thereof to receive in settlement
of the vested portion thereof a cash payment from MYR in an amount, if
any (the "Restricted Stock Cash-Out Amount"), equal to the product of
(i) the Merger Consideration and (ii) the total number of vested shares
of MYR Restricted Stock to which the holder is entitled, upon the
surrender of the certificates representing such shares of MYR
Restricted Stock. With respect to any shares of MYR Restricted Stock
that are not vested at the Effective Time, each holder thereof shall
become entitled to receive on the date such shares of MYR Restricted
Stock become vested a cash payment from MYR in an amount equal to the
Restricted Stock Cash-Out Amount, upon the surrender of the certificate
representing such shares of MYR Restricted Stock. GPU agrees to make
cash in an amount equal to the aggregate Restricted Stock Cash-Out
Amount available to MYR as required to enable MYR to honor its
obligations under this Section 2.1.4. Notwithstanding the foregoing, if
the approval of GPU's board of directors and any required regulatory
approvals are obtained, within 20 business days after the Effective
Time each holder of MYR Restricted Stock, whether or not vested, may
elect in writing, in lieu of the cash settlement set forth in the first
two sentences of this Section 2.1.4, to have all or any part of such
outstanding MYR Restricted Stock converted into GPU Restricted Stock,
subject to the same terms and conditions set forth in the plans and
agreements pursuant to which the MYR Restricted Stock was issued as in
effect immediately prior to the Effective Time, except that the number
of shares of such GPU Restricted Stock shall be that number of whole
shares of GPU Common Stock equal to the product of the number of shares
of converted MYR Restricted Stock multiplied by the
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number (the "Conversion Ratio") determined by dividing the Merger
Consideration by the average closing price of GPU Common Stock for the
five (5) trading days immediately preceding the Effective Time, rounded
up to the nearest whole number of shares of GPU Common Stock. GPU
shall, promptly after the Effective Time, issue stock certificates
evidencing such GPU Restricted Stock. Nothing in this Section 2.1.4
shall affect the schedule of vesting (or the acceleration thereof) of
the MYR Restricted Stock, converted or not converted by GPU pursuant to
the terms of this Section 2.1.4 in accordance with the terms thereof.
As soon as practicable after the Effective Time, GPU shall file a
registration statement on Form S-8 (or any successor form), or another
appropriate form, with respect to the shares of GPU Restricted Stock
issued pursuant to this Section 2.1.4 and shall use its best efforts to
maintain the effectiveness of such registration statement or
registration statements (and maintain the current status of the
prospectus or prospectuses contained therein) for so long as such
shares of restricted stock remain outstanding.
2.2 PAYMENT OF MERGER CONSIDERATION AND EXCHANGE OF CERTIFICATES.
2.2.1 Prior to the Effective Time, GPU shall appoint a bank or
trust company designated by GPU and reasonably acceptable to MYR to act
as exchange agent (the "Exchange Agent") for the payment of the Merger
Consideration.
2.2.2 At or as soon as practicable after the Effective Time,
GPU shall deposit the Merger Consideration with respect to all shares
of MYR Common Stock submitted by holders thereof for exchange in
accordance with this Section 2.2, with the Exchange Agent, for the
benefit of such holders.
2.2.3 At the Effective Time, each holder of an outstanding
certificate or certificates which prior thereto represented shares of
MYR Common Stock shall, upon surrender to the Exchange Agent of such
certificate or certificates and acceptance thereof by the Exchange
Agent, be entitled to the Merger Consideration into which such holder's
shares of MYR Common Stock have been converted pursuant to Section
2.1.2. If any Merger Consideration is to be remitted to a name other
than that in which the certificate for MYR Common Stock surrendered for
exchange is registered, it shall be a condition of such exchange that
the certificate so surrendered shall be properly endorsed or
accompanied by a properly executed assignment with signature guaranteed
by a qualified member in a Medallion Guarantee Program approved by the
Securities Transfer Association, Inc., and that the person requesting
such exchange shall pay to GPU or the Exchange Agent any transfer or
other taxes required by reason of the payment of Merger Consideration
to a name other than that of the registered holder of the certificate
surrendered. Until surrendered as contemplated by this Section 2.2.3,
each certificate for shares of MYR Common Stock shall be deemed at any
time after the Effective Time to represent the right to receive upon
such surrender the Merger Consideration contemplated by this Agreement.
No interest will be paid or will accrue on any Merger Consideration.
2.2.4 The Merger Consideration shall be deemed to have been
issued (and paid) in full satisfaction of all rights pertaining to the
shares of MYR Common Stock theretofore represented by such
certificates.
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2.2.5 Any portion of the Merger Consideration deposited with
the Exchange Agent pursuant to this Section 2.2 (the "Exchange Fund")
which remains undistributed nine months after the Effective Time shall
be delivered to GPU, upon demand, and any holders of shares of MYR
Common Stock who have not theretofore complied with this Section 2.2
shall thereafter look only to GPU and only as general creditors thereof
for payment of their claim for the Merger Consideration.
2.2.6 None of GPU, Merger Subsidiary, MYR or the Exchange
Agent shall be liable to any person in respect of any of the Merger
Consideration delivered from the Exchange Fund to a public official
pursuant to any applicable abandoned property, escheat or similar law.
2.2.7 The Exchange Agent shall invest any cash included in the
Exchange Fund, as directed by GPU. Any interest and other income
resulting from such investments shall be paid to GPU.
2.2.8 In the event any certificate representing shares of MYR
Common Stock shall have been lost, stolen or destroyed, upon the making
of an affidavit of that fact by the person claiming such certificate to
be lost, stolen or destroyed and, if required by GPU, the provision of
reasonable indemnity against any claim that may be made against it with
respect to such certificate, the Exchange Agent shall issue in exchange
for such lost, stolen or destroyed certificate the Merger Consideration
payable in respect thereof pursuant to this Agreement.
2.3 DISSENTING SHARES. Notwithstanding anything in this Agreement to
the contrary, none of the shares of MYR Common Stock that are outstanding
immediately prior to the Effective Time and that are held by stockholders (other
than GPU or the Merger Subsidiary or any corporate affiliate of either of them)
who shall not have voted those shares of MYR Common Stock in favor of the Merger
and who are entitled by applicable Delaware law to appraisal rights, and who
shall have delivered a written demand for appraisal of those shares of MYR
Common Stock in the manner provided in Section 262 of the DGCL ("Dissenting
Shares") shall be converted into the right to receive, or be exchangeable for,
the Merger Consideration; however, (a) if any holder of Dissenting Shares shall
subsequently deliver a written withdrawal of his demand for appraisal of those
shares of MYR Common Stock (with the written approval of MYR, if such withdrawal
is not tendered within 60 days after the Effective Time), or (b) if any holder
fails to establish his entitlement to appraisal rights as provided in Section
262 of the DGCL or (c) if neither any holder of Dissenting Shares nor the
surviving corporation has filed a petition demanding a determination of the
value of all Dissenting Shares within the time provided in Section 262 of the
DGCL, such holder or holders shall forfeit the right to appraisal of those
shares of MYR Common Stock and each such share shall thereupon be deemed to have
been converted into the right to receive, and to have become exchangeable for,
as of the Effective Time, the Merger Consideration.
3. CLOSING
3.1 CLOSING. The closing of the transactions contemplated by this
Agreement (the
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"Closing") shall take place at the offices of Berlack, Israels & ▇▇▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ as soon as practicable after the
approval and adoption of this Agreement by the MYR stockholders as contemplated
in Section 6.1 (if required by law) and the satisfaction or waiver of the other
conditions of the parties set forth in Articles 7 and 8 hereof. At the Closing
the parties shall cause the Certificate of Merger to be filed in accordance with
the applicable provisions of the DGCL. The date on which the Closing occurs is
sometimes referred to herein as the "Closing Date."
4. REPRESENTATIONS AND WARRANTIES OF MYR
In order to induce GPU and Merger Subsidiary to enter into this
Agreement and to consummate the transactions contemplated hereunder, MYR makes
the following representations and warranties:
4.1 ORGANIZATION, POWER AND AUTHORITY OF MYR AND ITS SUBSIDIARIES.
4.1.1 MYR is a corporation duly organized and validly existing
in good standing under the laws of the State of Delaware and has full
corporate power and authority and all licenses and permits necessary to
own or lease its properties and to carry on its business as it is now
being conducted. MYR is duly qualified to transact business as a
foreign corporation, and is in good standing, in the State of Illinois,
that being the only jurisdiction in which its business or property is
such as to require that it be thus qualified except for jurisdictions
where the failure to be so qualified would not have a Material Adverse
Effect.
4.1.2 The Disclosure Schedule sets forth, with respect to each
subsidiary of MYR: (i) its name; (ii) its state of incorporation; (iii)
the states in which it is legally qualified to transact business as a
foreign corporation; (iv) a brief description of its business and
properties; (v) the number of authorized shares of its capital stock;
(vi) the number of shares of its capital stock which are issued and
outstanding and the number of such shares which are issued and held in
its treasury; and (vii) the number of shares of its capital stock which
are owned by MYR or any of its subsidiaries, all of which are owned by
MYR (or such subsidiaries, as shown) free and clear of all liens,
pledges, encumbrances, claims and equities of every kind, except as
disclosed in the Disclosure Schedule.
4.1.3 Each of the active subsidiaries of MYR is a corporation
duly organized and validly existing in good standing under the laws of
its state of incorporation and has full corporate power and authority
and all licenses and permits necessary to own or lease its properties
and to carry on its business as it is now being conducted. Each of such
subsidiaries is duly qualified to transact business as a foreign
corporation, and is in good standing, in each of the jurisdictions in
which its business or property is such as to require that it be thus
qualified, except for jurisdictions where the failure to be so
qualified would not have a Material Adverse Effect.
4.1.4 All voting rights in each of the subsidiaries of MYR are
vested exclusively in its shares of common stock. All of the issued and
outstanding shares of common stock of each of such subsidiaries are
validly authorized and issued and are fully paid and non-
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assessable. There are no outstanding warrants, options or rights of any
kind to acquire from any of such subsidiaries any shares of its common
stock or securities of any kind, except as set forth in the Disclosure
Schedule. None of such subsidiaries has any obligation to acquire any
of its issued and outstanding shares of common stock or any other
security issued by it from any holder thereof.
4.1.5 Except as set forth in the Disclosure Schedule, MYR does
not have any direct or indirect equity interest in any other person or
entity.
4.2 CAPITAL STOCK OF MYR. The authorized capital stock of MYR consists
solely of 25,000,000 shares of MYR Common Stock, of which 6,429,135 shares are
issued and outstanding on the date hereof (including 335,927 shares of
restricted stock issued under MYR's stock option and restricted stock plans
which are subject to forfeiture) and none are held in treasury, and 1,000,000
shares of preferred stock, none of which are issued. All voting rights in MYR
are vested exclusively in the issued and outstanding shares of MYR Common Stock,
and there are no voting trusts, proxies or other agreements or understandings
with respect to the voting of the capital stock of MYR to which MYR is a party.
All of the issued and outstanding shares of MYR Common Stock are validly
authorized and issued, fully paid and non-assessable. Except for the right to
acquire up to 756,650 shares of common stock upon exercise of stock options
granted under MYR's stock option plans, and the right to acquire up to 882,086
shares of common stock upon conversion of outstanding convertible notes of MYR
(with MYR having the right to repurchase 600,183 of such shares at $5.67954 per
share if issued upon conversion), there are no outstanding warrants, options or
rights of any kind to acquire from MYR any shares of MYR Common Stock or
securities of any kind, except as set forth in the Disclosure Schedule, and
there are no pre-emptive rights with respect to the issuance or sale of shares
of capital stock of MYR. MYR has no obligation to acquire any of the issued and
outstanding shares of MYR Common Stock or any other security issued by it from
any holder thereof.
4.3 DUE AUTHORIZATION; BINDING OBLIGATION; NONCONTRAVENTION. The
execution, delivery and performance of this Agreement and the consummation of
the transactions contemplated hereby have been duly authorized by all necessary
corporate action of MYR, except that this Agreement has not been approved by the
stockholders of MYR. This Agreement has been duly executed and delivered by MYR
and is a legal, valid and binding obligation of MYR, enforceable in accordance
with its terms except as enforceability may be affected by bankruptcy,
insolvency, moratorium and similar laws affecting creditors' rights generally
and by general principles of equity (whether brought in an action at law or in
equity). Except as disclosed in the Disclosure Schedule, neither the execution
and delivery of this Agreement by MYR nor the consummation of the transactions
contemplated hereby will: (i) conflict with or violate any provision of (a) the
certificate of incorporation or bylaws of MYR or (b) any decree or order of any
court or administrative or other governmental body which is either applicable
to, binding upon or enforceable against MYR; or (ii) result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify or cancel, or require any notice
under, any mortgage, contract, agreement, indenture or other instrument which is
either binding upon or enforceable against MYR, except in each case set forth in
(i)(b) and (ii) above, as would not, individually or in the aggregate, have a
Material Adverse Effect. No permit, consent, approval or authorization of, or
declaration to or filing with, any regulatory or other
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government authority is required in connection with the execution and delivery
of this Agreement by MYR and the consummation of the transactions contemplated
hereby, except for the filing of the Certificate of Merger, the filing required
by the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the
"HSR Act") and any filings required by federal and state securities laws.
4.4 SEC REPORTS. Since January 1, 1996, MYR has filed all forms,
reports and documents with the SEC required to be filed by it pursuant to the
Federal securities laws and the rules and regulations of the SEC thereunder, all
of which complied in all material respects with all applicable requirements of
the Securities Act of 1933, as amended (the "Securities Act") and the Exchange
Act and the rules and regulations of the SEC thereunder. The above referenced
forms, reports and documents of MYR are sometimes collectively referred to
herein as the "MYR SEC Reports." None of the MYR SEC Reports, including without
limitation any financial statements or schedules included therein, at the time
filed contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading.
4.5 FINANCIAL STATEMENTS. The consolidated balance sheets and the
related consolidated statements of income, stockholders' equity and cash flows
(including the related notes thereto) of MYR and its subsidiaries included in
the MYR SEC Reports complied as to form in all material respects with the
applicable accounting requirements and published rules and regulations of the
SEC with respect thereto, have been prepared in accordance with generally
accepted accounting principles ("GAAP") applied on a basis consistent with prior
periods except as otherwise noted therein, present fairly the consolidated
financial position of MYR and its subsidiaries as of their respective dates, and
the consolidated results of their operations and their cash flows for the
periods presented therein, and reflect all adjustments necessary for the fair
presentation of results for the periods presented. The balance sheet of MYR as
of September 30, 1999 and the related notes thereto included in the MYR SEC
Reports is herein sometimes referred to as the "MYR Balance Sheet."
4.6 LIABILITIES. MYR and its subsidiaries have no material liabilities
or obligations, either accrued, absolute, contingent or otherwise, except: (i)
to the extent reflected or taken into account in determining stockholders'
equity on the MYR Balance Sheet; (ii) to the extent disclosed in the MYR SEC
Reports or the Disclosure Schedule; and (iii) normal liabilities incurred in the
ordinary course of business, consistent with prior practice, since the date of
the MYR Balance Sheet.
4.7 TAX MATTERS.
4.7.1 All federal, state, local and foreign Tax Returns (as
hereinafter defined) required to be filed by or on behalf of MYR, each
of its subsidiaries, and each affiliated, combined, consolidated or
unitary group of which MYR or any of its subsidiaries (i) is a member
(a "Current MYR Group") or (ii) was a member during any years not
closed with the Internal Revenue Service for U.S. federal income tax
purposes but is not currently a member, but only insofar as any such
Tax Return relates to a taxable period or portion thereof ending on a
date within the last six years during which MYR or such subsidiary
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was a member of such affiliated, combined, consolidated or unitary
group for purposes of the relevant Tax (a "Past MYR Group," and
together with Current MYR Groups, an "MYR Affiliated Group") have been
timely filed or requests for extensions have been timely filed and any
such extension has been granted and has not expired, and all such filed
Tax Returns are complete and accurate except to the extent any failure
to file or any inaccuracies in filed Tax Returns would not have a
Material Adverse Effect on MYR (it being understood that the
representations made in this Section 4.7. to the extent that they
relate to Past MYR Groups, are made to the best knowledge of MYR and
only with respect to taxable periods or portions thereof ending on a
date within the last six years during which MYR or any of its
subsidiaries was a member of such affiliated, combined, consolidated or
unitary group for purposes of the relevant Tax). All Taxes due and
owing by MYR, any subsidiary of MYR or any MYR Affiliated Group) have
been paid, or adequately reserved for, except to the extent any failure
to pay or reserve would not have a Material Adverse Effect on MYR.
There is no audit, examination, deficiency, refund litigation, proposed
adjustment or matter in controversy with respect to any Taxes due and
owing by MYR, any subsidiary of MYR or any MYR Affiliated Group which
if determined adversely would have a Material Adverse Effect on MYR.
All assessments for Taxes due and owing by MYR, any subsidiary of MYR
or any MYR Affiliated Group with respect to completed and settled
examinations or concluded litigation have been paid. The Disclosure
Schedule sets forth (i) the taxable years of MYR for which the statutes
of limitations with respect to U.S. federal income Taxes have not
expired and (ii) with respect to federal income Taxes for such years,
those years for which examinations have been completed, those years for
which examinations are presently being conducted, and those years for
which examinations have not yet been initiated. Neither MYR nor any of
its subsidiaries has any liability under Treasury Regulation Section
1.1502-6 for U.S. federal income Taxes of any person other than MYR and
its subsidiaries. MYR and each of its subsidiaries have complied in all
material respects with all rules and regulations relating to the
withholding of Taxes, except to the extent any such failure to comply
would not have a Material Adverse Effect on MYR.
4.7.2 Except as set forth in the Disclosure Schedule, neither
MYR nor any subsidiary of MYR has (i) entered into a closing agreement
or other similar agreement with a taxing authority relating to Taxes of
MYR or any subsidiary of MYR with respect to a taxable period for which
the statute of limitations is still open, or (ii) with respect to U.S.
federal income Taxes, granted any waiver of any statute of limitations
with respect to, or any extension of a period for the assessment of,
any income Tax, in either case, that is still outstanding. There are no
liens relating to Taxes upon the assets of MYR or any subsidiary other
than liens relating to Taxes not yet due. Neither MYR nor any
subsidiary is a party to any agreement relating to allocating or
sharing of Taxes which has not been disclosed in its Tax Returns.
Except as set forth in the Disclosure Schedule, neither MYR nor any
subsidiary will be required, as a result of (A) a change in method of
accounting for a period beginning on or before the Closing Date, to
include any adjustment under Section 481(c) of the Internal Revenue
Code of 1986, as amended (the "Code") (or any corresponding provision
of state, local or foreign Tax law), or (B) any "closing agreement," as
that term is used in Section 7121 of the Code or any corresponding
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provision of state, local or foreign Tax law, to include any item of
income in, or to exclude any item of deduction from, Taxable income for
any Taxable period ending on or after the Closing Date except in each
case to the extent that such inclusion or exclusion will not have a
Material Adverse Effect on MYR. MYR has not been a United States real
property holding corporation within the meaning of Section 897(c)(2) of
the Code (or any corresponding provision of state, local or foreign Tax
law) during the applicable period specified in Section 897(c)(1)(A)(ii)
of the Code (or any corresponding provision of state, local or foreign
Tax law). No consent under Section 341(f) of the Code has been filed
with respect to MYR or any subsidiary.
4.7.3 For purposes of this Agreement: (i) "Taxes" means any
and all federal, state, local, foreign or other taxes of any kind
(together with any and all interest, penalties, additions to tax and
additional amounts imposed with respect thereto) imposed by any taxing
authority, including, without limitation, taxes or other charges on or
with respect to income, franchises, windfall or other profits, gross
receipts, property, sales, use, capital stock, payroll, employment,
social security, workers' compensation, unemployment compensation or
net worth, and taxes or other charges in the nature of excise,
withholding, ad valorem or value added, and (ii) "Tax Return" means any
return, report or similar statement (including the attached schedules)
required to be filed with respect to any Tax, including, without
limitation, any information return, claim for refund, amended return or
declaration of estimated Tax.
4.8 REAL ESTATE.
4.8.1 The Disclosure Schedule accurately and completely sets
forth, with respect to every parcel of real estate owned by MYR or any
of its subsidiaries other than rental sites for periods less than one
year: (i) the owner; (ii) the location, including address, thereof;
(iii) the legal description and approximate size thereof; (iv) a brief
description of the principal improvements and buildings thereon, all of
which are within the property, set-back and building lines; (v) the
approximate year acquired; and (vi) the nature and amount of any
mortgages, tax liens or other liens thereon (including without
limitation any environmental liens).
4.8.2 The Disclosure Schedule accurately and completely sets
forth, with respect to every parcel of real estate leased by MYR or any
of its subsidiaries other than rental sites for periods less than one
year: (i) the lessor and lessee thereof and the date and term of the
lease governing such property; (ii) the location, including address,
thereof; (iii) a brief description of the principal improvements and
buildings thereon, all of which are within the property, set-back and
building lines thereof; and (iv) the nature and amount of any
mortgages, tax liens or other liens thereon (including without
limitation any environmental liens). MYR has previously delivered to
GPU accurate and complete copies of each of the leases covering real
estate leased by MYR and its subsidiaries, and none of such leases has
been amended or modified except to the extent that such amendments or
modifications are disclosed in such copies or in the Disclosure
Schedule. All of the leases covering the real estate leased by MYR and
its subsidiaries are in full force and effect. Neither MYR nor any of
its subsidiaries is in material default or material
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breach under any such lease. No event has occurred which with the
passage of time or the giving of notice or both would cause a material
breach of or default under any such lease. MYR has no knowledge of any
breach by the other parties to such lease.
4.8.3 Except as otherwise disclosed in the MYR SEC Reports or
the Disclosure Schedule, MYR and its subsidiaries have good and
marketable title to each parcel of the real estate owned by them and a
valid leasehold interest in each parcel of real estate leased by them,
in each case other than rental sites for periods less than one year,
free and clear of all liens, mortgages, pledges, charges, encumbrances,
assessments, restrictions, covenants and easements or title defects of
any nature whatsoever, except for liens for real estate taxes not yet
due and payable, and such imperfections of title and encumbrances, if
any, as are not substantial in character, amount or extent and do not
materially detract from the value, or materially interfere with the
present use, of such properties or otherwise impair business operations
in any material respect.
4.8.4 All of the leases covering real estate leased by MYR and
its subsidiaries, other than rental sites for periods less than one
year, are in full force and effect. Neither MYR nor any of its
subsidiaries is in material default or material breach under any such
lease. No event has occurred which with the passage of time or the
giving of notice or both would cause a material breach of or default
under any such lease. MYR has no knowledge of any breach by the other
parties to such lease.
4.8.5 Neither MYR nor any of its subsidiaries has received any
notice of (i) any condemnation proceeding with respect to any portion
of real estate owned or leased by them, and, to MYR's knowledge, no
proceeding is contemplated by any governmental authority; or (ii) any
special assessment which may affect the real estate owned or leased by
them, and, to MYR's knowledge, no such special assessment is
contemplated by any governmental authority.
4.9 TITLE TO AND CONDITION OF ASSETS. MYR and its subsidiaries have
good title to all of their respective assets and properties other than real
estate owned or leased by them, free and clear of all liens, mortgages, pledges,
encumbrances or charges of every kind, nature, and description whatsoever,
except (i) any assets or properties that have been disposed of since the date of
the most recent MYR SEC Report, (ii) as disclosed in the MYR SEC Reports or the
Disclosure Schedule, (iii) as provided in agreements of indemnity with the
sureties that issue bonds on behalf of MYR, and (iv) such imperfections of title
and encumbrances, if any, as are not substantial in character, amount or extent
and do not materially detract from the value, or materially interfere with MYR's
present or intended use, of such assets or properties or otherwise impair
business operations in any material respect. To the best of MYR's knowledge, the
fixed assets of MYR and its subsidiaries are in operating condition consistent
with industry practice.
4.10 LICENSES AND PERMITS. MYR and its subsidiaries possess all
required governmental or official approvals, permits, licenses or
authorizations, the failure to possess any of which would have a Material
Adverse Effect ("Material MYR Licenses"). All Material MYR Licenses are in full
force and effect, MYR and its subsidiaries are in compliance with their
requirements in all material respects, and no proceeding is pending or, to the
best of MYR's
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knowledge, threatened to revoke or amend or impose any fines or penalties under
any of them. None of the Material MYR Licenses is or will be impaired or in any
way affected by the execution and delivery of this Agreement or the consummation
of the transactions contemplated hereby.
4.11 PROPRIETARY RIGHTS. MYR or its subsidiaries possess (either
through license, ownership or otherwise) all proprietary rights including,
without limitation, with respect to intellectual property, computer software,
patents, trademarks, copyrights and the like, the failure to possess which would
have a Material Adverse Effect. Neither MYR nor any of its subsidiaries has
received a notice of the conflict of their respective businesses with
proprietary rights of others within the last five years, and, to MYR's
knowledge, the conduct of business of MYR and its subsidiaries has not infringed
any such rights of others.
4.12 ADEQUACY OF ASSETS; RELATIONSHIPS WITH ITS CUSTOMERS AND
SUPPLIERS; RELATED PARTY TRANSACTIONS; RESTRICTIVE COVENANTS. The assets and
properties of MYR and its subsidiaries (including their leased assets and
properties) constitute, in the aggregate, all of the property necessary for the
conduct of their business in the manner in which and to the extent to which it
is currently being conducted or is contemplated to be conducted by MYR. Except
for and subject to terms and conditions contained in MYR's contracts, and the
rights of any customer or supplier thereunder, MYR knows of no written or oral
communication, fact, event or action which exists or has occurred within 90 days
prior to the date of this Agreement, which indicates that: any current customer
of MYR or its subsidiaries which accounted for over 5% of the total consolidated
net sales of MYR and its subsidiaries for the year ended December 31, 1998, or
any current supplier to MYR or any of its subsidiaries of items material to the
conduct of their business, which items cannot be replaced by them at comparable
cost to them and the loss of which would have a Material Adverse Effect, will
seek to terminate its business relationship with any of them. Set forth in the
Disclosure Schedule is a list of the twenty largest customers of MYR for each of
the two consecutive years ended December 31, 1998. The MYR SEC Reports set forth
any transactions required to be set forth therein under Item 404 of Regulation
S-K under the 1933 Act. Except as set forth in the MYR SEC Reports, neither MYR
nor any of its subsidiaries is restricted by agreement from carrying on its
business anywhere in the world. There is not any default outstanding in any
material obligation to be performed by MYR or any of its subsidiaries under any
material contract or agreement by which any of them is bound or, to the
knowledge of MYR, any other party thereto.
4.13 CERTAIN DOCUMENTS AND INFORMATION. The Disclosure Schedule
accurately and completely lists the following: (i) each loan, credit agreement,
security agreement or other agreement or instrument with respect to indebtedness
(other than guarantees not related to the borrowing of money) to which MYR or
any of its subsidiaries is a party or by which it is bound; (ii) each material
lease of personal property to which MYR or any of its subsidiaries is a party or
by which it is bound; (iii) the name and annual salary rates, from January 1,
1996 to the present, of each salaried employee of MYR or any of its subsidiaries
whose current annual salary is in excess of $100,000, the aggregate estimated
bonus compensation that will be payable by MYR or any of its subsidiaries to or
for the benefit of their employees for the year ending December 31, 1999, and
any employment or other agreement, arrangement or understanding (whether oral or
written) of MYR or any of its subsidiaries with any of their respective officers
or employees; and (iv) the name of each of the officers and directors of MYR and
each of its subsidiaries. MYR has
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previously furnished GPU with an accurate and complete copy of each such
agreement, contract or commitment described in clause (i) of this Section 4.13
and listed in the Disclosure Schedule. There is not any default outstanding in
any material obligation to be performed by MYR or any of its subsidiaries under
any such instrument.
4.14 INSURANCE. All premiums and other payments which have become due
under the policies of insurance of MYR have been paid in full, all of such
policies are now in full force and effect and neither MYR nor any of its
subsidiaries has received notice from any insurer, agent or broker of the
cancellation of, or any material increase in premium with respect to, any of
such policies or bonds. Except as set forth in the MYR SEC Reports or the
Disclosure Schedule, neither MYR nor any of its subsidiaries has received any
notification from any insurer, agent or broker denying or disputing any material
claim made by any of them or denying or disputing any coverage for any such
material claim or the amount of any such claim or right with respect to the
foregoing. Except as set forth in the MYR SEC Reports or the Disclosure
Schedule, neither MYR nor any of its subsidiaries has any claim against any of
its insurers under any of such policies pending or anticipated and, to the best
of MYR's knowledge, there has been no occurrence of any kind which would give
rise to any such claim. The Disclosure Schedule includes a list of MYR's
material insurance policies.
4.15 LITIGATION. Except as set forth in the MYR SEC Reports, the
Disclosure Schedule, or in insurance loss runs previously provided to GPU by
MYR, there are no actions, suits, claims, governmental investigations or
arbitration proceedings pending or, to the best of the MYR's knowledge,
threatened against or affecting MYR or any of its subsidiaries or any of their
assets or properties which could have a Material Adverse Effect. Except as set
forth in the MYR SEC Reports or the Disclosure Schedule, there are no
outstanding orders, decrees or stipulations issued by any federal, state, local
or foreign judicial or administrative authority in any proceeding to which MYR
or any of its subsidiaries is or was a party.
4.16 RECORDS. MYR has previously furnished GPU with copies of the
certificate of incorporation and bylaws and all amendments thereto to date of
MYR and each of its active subsidiaries (certified in each case by the secretary
of such company), and such copies are correct and complete in all respects. To
the best of MYR's knowledge, all of the operating data and records of MYR and
its subsidiaries, including without limitation customer lists and financial,
accounting and credit records, are accurate and complete in all material
respects and there are no material matters as to which appropriate entries have
not been made therein. A record of all action taken by the stockholders and the
board of directors of MYR and each of its active subsidiaries all minutes of
their meetings are contained in the minute books of MYR and are accurate and
complete in all material respects. The record books and stock ledgers of MYR and
each of its active subsidiaries contain an accurate and complete record of all
issuances and cancellations of shares of their capital stock.
4.17 NO MATERIAL ADVERSE CHANGE. Since the date of the MYR Balance
Sheet, except as set forth in the Disclosure Schedule, there have not been any
changes in the business, assets, properties, condition (financial or otherwise)
or results of operations, of MYR or any of its subsidiaries, other than changes
occurring in the ordinary course of business which in the aggregate have not had
a Material Adverse Effect. There is not, to the best of MYR's
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knowledge, any threatened or prospective event or condition of any character
whatsoever which could reasonably be expected to have a Material Adverse Effect.
4.18 ABSENCE OF CERTAIN ACTS OR EVENTS. Except as disclosed in the
Disclosure Schedule, from the date of the MYR Balance Sheet through the date
hereof, neither MYR nor any of its subsidiaries has: (i) authorized or issued
any of its shares of capital stock (including any held in its treasury) or any
other securities other than issuances of MYR Common Stock upon exercise of
outstanding stock options or conversion of outstanding convertible notes; (ii)
declared or paid any dividend or made any other distribution of or with respect
to its shares of capital stock or other securities or purchased or redeemed any
shares of its capital stock or other securities or authorized the same; (iii)
sold, leased, transferred or assigned any of its assets other than in the
ordinary course of business; (iv) incurred any material obligations or
liabilities (including any indebtedness) or entered into any material
transaction, except for this Agreement and the transactions contemplated hereby,
or in the ordinary course of business; (v) suffered any uninsured theft, damage,
destruction or casualty loss in excess of $250,000; or (vi) taken any action
which if taken after the date hereof would constitute a breach of Section 6.5.
4.19 COMPLIANCE WITH LAWS. Except as set forth in the MYR SEC Reports
or the Disclosure Schedule, MYR and its subsidiaries are in compliance with all
laws, regulations and orders applicable to them or their assets, properties and
business, except where the failure so to comply would not have a Material
Adverse Effect. Neither MYR nor any of its subsidiaries has received
notification of any failure to comply with any laws, and, to the best of MYR's
knowledge, no proceeding with respect to any such violation is contemplated.
Neither MYR nor any of its subsidiaries nor, to the best of MYR's knowledge, any
employee of any of them, has knowingly made any payment of funds in connection
with their business prohibited by law, and no funds have been knowingly set
aside to be used in connection with their business for any payment prohibited by
law.
4.20 ENVIRONMENTAL MATTERS. Except as disclosed in the MYR SEC Reports
or in the Disclosure Schedule, and except for matters which are not, or would
not be, required to be disclosed in the MYR SEC Reports:
4.20.1 Neither MYR nor any of its subsidiaries (or, to the
knowledge of MYR, any predecessor or any of its subsidiaries) has
transported, stored, treated or disposed, nor has any of them allowed
or arranged for any third parties to transport, store, treat or dispose
of Hazardous Substances (as hereinafter defined) to or at any location
other than a site lawfully permitted to receive such Hazardous
Substances for such purposes, nor has it performed, arranged for or
allowed by any method or procedure such transportation, storage,
treatment or disposal in contravention of any laws or regulations,
except for any of the foregoing which would not have a Material Adverse
Effect. Neither MYR nor any of its subsidiaries (or, to the knowledge
of MYR, any predecessor or any of its subsidiaries) has disposed, or
allowed or arranged for any third parties to dispose, of material
amounts of Hazardous Substances upon property currently or, to the
knowledge of MYR, formerly owned, leased or operated by them, except as
permitted by law. For purposes of this Section 4.20, the term
"Hazardous Substances" means any pollutants, contaminants, toxic or
hazardous or extremely hazardous substances, wastes (including,
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without limitation, petroleum or any by-products or fractions thereof,
any form of natural gas, ▇▇▇▇▇▇ Amendment materials, lead, asbestos and
asbestos-containing materials ("ACM"), building construction materials
and debris, polychlorinated biphenyls ("PCBs") and PCB-containing
equipment, radon and other radioactive elements, ionizing radiation,
electromagnetic field radiation and other non-ionizing radiation,
infectious, carcinogenic, mutagenic, or etiologic agents, pesticides,
defoliants, explosives, flammables, corrosives and urea formaldehyde
foam insulation) that are regulated by any law, statute, ordinance,
rule or regulation governing pollution, contamination, protection of
the environment, human health or safety, health or safety of employees,
or sanitation.
4.20.2 There has not occurred, nor is there presently
occurring, a Release of a material amount of any Hazardous Substance
on, into or beneath the surface of any parcel of the real estate
currently or, to the knowledge of MYR, formerly owned, leased or
operated by MYR or any of its subsidiaries (or, to the knowledge of
MYR, any predecessor or any of its subsidiaries). For purposes of this
Section 4.20, the term "Release" shall mean releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, disposing or dumping in violation of law or
regulation.
4.20.3 Neither MYR nor any of its subsidiaries (or, to the
knowledge of MYR, any predecessor or any of its subsidiaries) has
transported or disposed, nor has any of them allowed or arranged for
any third parties to transport or dispose, any Hazardous Substance to
or at a site which, pursuant to CERCLA or any similar state law, (i)
has been placed on the National Priorities List or its state
equivalent, or (ii) the Environmental Protection Agency or the relevant
state agency has proposed or is proposing to place on the National
Priorities List or its state equivalent. Neither MYR nor any of its
subsidiaries has received any notice, and MYR has no knowledge of any
facts which could give rise to any notice, that MYR or any of its
subsidiaries is a potentially responsible party for a federal or state
environmental cleanup site or for corrective action under CERCLA or any
other applicable law or regulation. Neither MYR nor any of its
subsidiaries has submitted nor was it required to submit any notice
pursuant to Section 103(c) of CERCLA with respect to the real estate
currently or, to the knowledge of MYR, formerly owned, leased or
operated by MYR or any of its subsidiaries (or, to the knowledge of
MYR, any predecessor or any of its subsidiaries). Neither MYR nor any
of its subsidiaries (or, to the knowledge of MYR, any predecessor or
any of its subsidiaries) has received any written or oral request for
information in connection with any federal or state environmental
cleanup site. Neither MYR nor any of its subsidiaries (or, to the
knowledge of MYR, any predecessor or any of its subsidiaries) has
undertaken (or been requested to undertake) any response or remedial
actions or clean-up actions of any kind at the request of any federal,
state or local governmental entity, or at the request of any other
person or entity.
4.20.4 There are no laws, regulations, ordinances, licenses,
permits or orders relating to environmental or worker safety matters
requiring any work, repairs, construction or capital expenditures with
respect to the assets or properties of MYR or any of its subsidiaries.
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4.20.5 MYR has delivered or made available to GPU true and
complete copies of any material reports, studies, analyses, tests, or
monitoring possessed by MYR or any of its subsidiaries relating to
material compliance with any environmental law and Hazardous Substances
at, on, under, within or migrating to or from any facility or real
property currently owned by MYR or any of its subsidiaries.
4.21 LABOR RELATIONS. Except as set forth in the Disclosure Schedule,
neither MYR nor any of its subsidiaries is a party to or bound by any collective
bargaining agreement or any other agreement with a labor union, and to the best
of MYR's knowledge, there has been no effort by any labor union to organize any
employees of MYR or any of its subsidiaries into one or more collective
bargaining units during the last two fiscal years. There are no pending or, to
the best of MYR's knowledge, threatened labor disputes, strikes or work
stoppages which could have a Material Adverse Effect. Except as disclosed in the
MYR SEC Reports or the Disclosure Schedule, and except for matters which are
not, or would not be, required to be disclosed in the MYR SEC Reports, there is
not now pending or, to the best of MYR's knowledge, threatened any charge or
complaint against MYR or any of its subsidiaries by or with the National Labor
Relations Board or any representative thereof.
4.22 EMPLOYEE BENEFITS.
4.22.1 Neither MYR nor any of its subsidiaries, nor any
corporation or business which is now or at the relevant time was a
member of a controlled group of corporations or trades or businesses
including MYR or any of its subsidiaries, within the meaning of Section
414 of the Code, maintains or contributes to, or is required to
contribute to, or at any time since January 1, 1997 maintained,
contributed to or was required to contribute to, or otherwise has any
liability with respect to: (i) any non-qualified deferred compensation
or retirement plans or arrangements; (ii) any qualified defined
contribution retirement plans or arrangements; (iii) any qualified
defined benefit pension plan; (iv) any other plan, program, agreement
or arrangement under which former employees of MYR or any of its
subsidiaries or their beneficiaries are entitled, or current employees
of MYR or any of its subsidiaries will be entitled following
termination of employment, to medical, health, life insurance or other
benefits other than pursuant to benefit continuation rights granted by
state or federal law; or (v) any other health, welfare, medical,
disability, life insurance, stock, stock purchase or stock option plan,
or any other program, agreement, arrangement or policy providing
employee benefits, except in each case as described in the Disclosure
Schedule and except for any benefits provided under collective
bargaining agreements. The plans described in the Disclosure Schedule
are referred to herein as the "Plans."
4.22.2 The administration of the Plans complies in all
material respects with the requirements of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA") and all other
applicable laws, and the Plans meet any applicable requirements for
favorable tax treatment under the Code in both form and operation. To
the knowledge of MYR, there have been no prohibited transactions as
defined in Section 406 of ERISA or Section 4975 of the Code with
respect to any of the Plans or any parties in interest or disqualified
persons with respect to the Plans or any reduction or curtailment of
accrued
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benefits with respect to any of the Plans. There are no pending or, to
the best knowledge of MYR, threatened, claims, lawsuits, or
arbitrations which have been asserted or instituted against the Plans,
any fiduciaries thereof with respect to their duties to the Plans or
the assets of any of the trusts under any of the Plans. No Plan is
under audit or investigation by the IRS, the Department of Labor or the
PBGC, and to the best knowledge of MYR and its subsidiaries no such
audit or investigation is threatened.
Except for any failure to comply or liability which
would not have a Material Adverse Effect, MYR and each of its
subsidiaries (i) is in compliance with all applicable laws respecting
employment, employment practices, labor, terms and conditions of
employment, wages and hours and withholding requirements, (ii) is not
liable for any arrears of wages or any taxes or any penalty for failure
to comply with any of the foregoing; and (iii) is not liable for any
payment to any trust or other fund or to any governmental or
administrative authority, with respect to unemployment compensation
benefits, social security or other benefits.
4.22.3 All required contributions for all completed Plan years
have been made or properly accrued and adequate accruals for
contributions with respect to all current Plan years are reflected in
the MYR Balance Sheet to the extent required under GAAP. The cost of
providing all retirement and post-termination benefits has been
properly accrued and is reflected in the MYR Balance Sheet in
accordance with GAAP, including Statements of Financial Accounting
Standards 87, 106 and 112. If any of the Plans is a multi-employer plan
as defined in Section 3(37) of ERISA, neither MYR nor any of its
subsidiaries would be liable for any withdrawal liability under
Subtitle E of Title IV of ERISA if a complete withdrawal occurred
immediately prior to the Effective Time.
4.22.4 MYR has furnished GPU with true and complete copies of:
(i) the Plans and any related trusts or funding vehicles, policies or
contracts and the related summary plan descriptions with respect to
each Plan; (ii) the most recent determination letters received from the
Internal Revenue Service regarding the tax qualified plans and copies
of any pending applications, filings or notices with respect to any of
the Plans with the Internal Revenue Service, the Pension Benefit
Guaranty Corporation, the Department of Labor or any other governmental
agency; and (iii) the latest financial statements and annual reports
for each of the Plans and related trusts or funding vehicles, policies
or contracts as of the end of the most recent plan year with respect to
which the filing date for such information has passed.
4.22.5 Except pursuant to agreements set forth in the
Disclosure Schedule, the execution of, and performance of the
transactions contemplated in, this Agreement will not (either alone or
upon the occurrence of any additional or subsequent events) constitute
an event under any Plan, trust or loan that will or may result in any
payment (whether severance pay or otherwise), acceleration, forgiveness
of indebtedness, vesting, increase in benefits or obligation to fund
benefits with respect to any employee of MYR or any of its
subsidiaries.
4.22.6 Except as provided on the Disclosure Schedule or
pursuant to collective
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bargaining agreements, (i) neither MYR nor any entity controlled by or
under common control with MYR within the meaning of Section 4001 of
ERISA maintains or has maintained a defined benefit plan within the
five (5) years preceding the date of this Agreement; and (ii) no
employer securities, employer real property or other employer property
is included in the assets of any Plan.
4.23 CONTRACT REVENUE. On or prior to the date of this Agreement, MYR
has provided to GPU, with respect to each uncompleted contract of MYR and its
subsidiaries having a total contract price in excess of $100,000, in each case
as of September 30, 1999, each of the following: (i) the current cumulative
contract amount (consisting of the original price and the price for all
owner-approved change orders), (ii) estimated contract profit, (iii) costs
incurred to date, (iv) estimated cost to complete, (v) revenue recognized to
date, (vi) profit recognized to date, (vii) ▇▇▇▇▇▇▇▇ to date, (viii) cost and
estimated earnings in excess of ▇▇▇▇▇▇▇▇, (ix) ▇▇▇▇▇▇▇▇ in excess of costs and
estimated earnings, (x) retainage and (xi) backlog. To the best of MYR's
knowledge, as of such date the estimated contract profit and estimated cost to
complete for each such contract accurately reflected the actual contract profit
that was expected to be realized and the actual cost to complete that was
expected to be incurred, respectively, for such contract. As described in the
Disclosure Schedule, MYR and its subsidiaries have used the same methods for
determining the percentage of contract work completed at September 30, 1999 as
they used in determining such amounts at the date of each of the balance sheets
included in the MYR SEC Reports, for purposes of preparing their financial
statements included therein.
4.24 ACCURACY OF SCHEDULE 14D-9, PROXY STATEMENT. None of the Schedule
14D-9, any other document required to be filed by MYR with the SEC in connection
with the Offer, or the proxy statement to be submitted to the stockholders of
MYR in connection with the meeting at which the Merger is to be voted on, if
required by law (the "Proxy Statement"), will, when mailed to the stockholders
of MYR, at the time of the meeting of stockholders of MYR, if any, or at the
Effective Time include any untrue statement of a material fact or omit to state
a material fact necessary in order to make the statements therein not misleading
in light of the circumstances under which they were made, except that MYR makes
no representations as to statements or omissions made therein concerning any
matter other than the information with respect to MYR.
4.25 INVESTMENT BANKERS' AND BROKERS' FEES. MYR has no obligation to
pay any fees or commissions to any investment banker, broker, finder or agent
with respect to the transactions contemplated by this Agreement except for the
fees of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Company (the "MYR Financial Advisor") as set forth in
the agreement between MYR and MYR Financial Advisor previously delivered to GPU.
4.26 TAKEOVER LAWS. The approval of this Agreement and the Merger by
the MYR Board of Directors (i) constitutes approval of this Agreement, the
Merger, and the transactions contemplated hereby for purposes of Section 203 of
the DGCL and (ii) renders inapplicable Article Tenth and Article Eleventh of the
MYR Certificate of Incorporation to this Agreement, the Merger and the
transactions contemplated hereby. To the knowledge of MYR, except for Section
203 of the DGCL (which has been rendered inapplicable), no "moratorium,"
"control share," "fair price" or other antitakeover laws and regulations of any
state (collectively, "Takeover Laws") are applicable to the Merger or the other
transactions contemplated by this
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Agreement.
4.27 FAIRNESS OPINION. On or before the date hereof, the MYR Financial
Advisor has delivered its opinion to the MYR Board of Directors that the Merger
Consideration is fair, from a financial point of view, to the holders of MYR
Common Stock.
4.28 YEAR 2000. All internal computer systems that are material to the
business, finances or operations of MYR and its subsidiaries ("Material
Systems") are (i) able to receive, record, store, process, calculate, manipulate
and output dates prior to, on and after January 1, 2000, time periods that
include January 1, 2000 and information that is dependent on or relates to such
dates or time periods, in a manner necessary to determine the accuracy,
functionality, data integrity and performance expected when utilizing properly
performing data and (ii) able to store and output information in a manner that
is unambiguous as to century ("Year 2000 Compliant") or have been modified to be
made Year 2000 Compliant without breaching any third party license agreements or
otherwise infringing any intellectual property rights of any third party.
4.29 VOTE REQUIRED. The affirmative vote of the holders of a majority
of the shares of MYR Common Stock outstanding on the record date set for the MYR
Stockholders Meeting is the only vote of the holders of any of MYR's capital
stock necessary to approve this Agreement and the transactions contemplated
hereby.
5. REPRESENTATIONS AND WARRANTIES OF GPU AND MERGER SUBSIDIARY
In order to induce MYR to enter into this Agreement and to consummate
the transactions contemplated hereunder, GPU and Merger Subsidiary make the
following representations and warranties:
5.1 ORGANIZATION, POWER AND AUTHORITY OF GPU AND MERGER SUBSIDIARY.
Each of GPU and Merger Subsidiary is a corporation duly incorporated and validly
existing under the laws of the jurisdiction of its incorporation with full
corporate power and authority to enter into this Agreement and to carry out the
transactions and agreements contemplated hereby. GPU is duly qualified to
transact business as a foreign corporation, and is in good standing, in each
jurisdiction in which its business or property is such as to require that it be
thus qualified except for jurisdictions where the failure to be so qualified
would not have a Material Adverse Effect.
5.2 DUE AUTHORIZATION; BINDING OBLIGATION; NONCONTRAVENTION. The
execution, delivery and performance of this Agreement, and the consummation of
the other transactions contemplated hereby and thereby have been duly authorized
by all necessary corporate action of GPU and Merger Subsidiary. This Agreement
has been duly executed and delivered by GPU and Merger Subsidiary and subject to
receipt of the 1935 Act Order, is a legal, valid and binding obligation of each
of them, enforceable in accordance with its terms except as enforceability may
be affected by bankruptcy, insolvency, moratorium and similar laws and by
general principles of equity (whether brought in an action at law or in equity).
Neither the execution and delivery of this Agreement by GPU and Merger
Subsidiary nor the consummation of the other transactions contemplated hereby or
thereby will: (i) conflict with or violate any provision of (a) the certificate
of incorporation or bylaws of GPU or Merger Subsidiary or (b) any decree or
order of any court
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or administrative or other governmental body which is either applicable to,
binding upon or enforceable against either of them; or (ii) result in a breach
of, constitute a default under, result in the acceleration of, create in any
party the right to accelerate, terminate, modify or cancel, or require any
notice under, any mortgage, contract, agreement, indenture or other instrument
which is either binding upon or enforceable against either of them except in
each case set forth in (i)(b) and (ii) above, as would not have a Material
Adverse Effect on the ability of GPU and Merger Subsidiary to consummate the
transactions contemplated hereby. No permit, consent, approval or authorization
of, or declaration to or filing with, any regulatory or other governmental
authority is required in connection with the execution and delivery of this
Agreement by GPU and Merger Subsidiary or the consummation of the other
transactions contemplated hereby or thereby except for the filing of the
Certificate of Merger, the filings required by the HSR Act, the 1935 Act Order
and any filings required by federal and state securities laws.
5.3 NO PRIOR ACTIVITIES; ASSETS OF MERGER SUBSIDIARY. Merger Subsidiary
is being utilized solely for the purpose of the Merger and engaging in the
transactions contemplated hereby. Merger Subsidiary has neither incurred any
obligations or liabilities nor engaged in any business or activities of any type
or kind whatsoever or entered into any agreement or arrangements with any person
or entity except in connection with its organization and this Agreement.
5.4 ACCURACY OF OFFER DOCUMENTS, PROXY STATEMENT. None of the Offer
Documents or the Proxy Statement, if any, will, when mailed to stockholders of
MYR, at the time of the meeting of stockholders of MYR, if any, or at the
Effective Time, include any untrue statement of a material fact or omit to state
a material fact required to be stated therein or necessary in order to make the
statements therein not misleading in the light of the circumstances under which
they were made, except that GPU makes no representations as to statements or
omissions made therein concerning any matter with respect to MYR.
5.5 INVESTMENT BANKERS' AND BROKERS' FEES. GPU has no obligation to pay
any fees or commissions to any investment banker, broker, finder or agent with
respect to the transactions contemplated by this Agreement.
5.6 AVAILABILITY OF FUNDS. GPU currently has and will continue to have
through the Effective Time sufficient funds (or access thereto) to pay all
amounts which may be payable to stockholders of MYR pursuant to the Offer and
the Merger and to pay all fees and expenses in connection therewith.
6. ACTIONS PRIOR TO THE EFFECTIVE TIME
The parties covenant to take the following actions between the date
hereof and the Effective Time:
6.1 APPROVAL OF MYR STOCKHOLDERS; SECURITIES LAW MATTERS; MERGER
WITHOUT MEETING OF STOCKHOLDERS; ACQUISITION PROPOSALS.
6.1.1 If required by applicable law in order to consummate the
Merger, MYR
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shall duly call and promptly hold a meeting of its stockholders as soon
as practicable following the expiration of the Offer for the purpose of
approving the Merger on the terms and conditions set forth in this
Agreement and in connection therewith will comply with the applicable
provisions of the DGCL relating to the calling and holding of a meeting
of stockholders for such purpose. Subject to Section 6.1.3, the Board
of Directors of MYR shall recommend the approval and adoption of this
Agreement by the stockholders of MYR, and MYR shall use its reasonable
best efforts to obtain such adoption and approval.
6.1.2 (a) If a meeting of stockholders is required, each of
GPU and MYR agrees to cooperate in the preparation of the Proxy
Statement and other proxy solicitation materials of MYR constituting a
part thereof and all related documents. The Proxy Statement shall
comply as to form in all materials respects with the applicable
provisions of the 1934 Act and the rules and regulations thereunder.
Provided the other party has cooperated as required above, MYR agrees
to file the Proxy Statement in preliminary form with the SEC as
promptly as reasonably practicable after the expiration of the Offer.
MYR shall, as promptly as practicable after receipt thereof, provide
copies of any written comments received from the SEC with respect to
the Proxy Statement to GPU, and advise GPU of any oral comments with
respect to the Proxy Statement received from the SEC. MYR shall use its
reasonable best efforts to respond promptly to any SEC comments and to
mail the Proxy Statement to stockholders as soon as practicable after
such comments are resolved. GPU and Merger Subsidiary shall cause all
the shares of MYR Common Stock acquired pursuant to the Offer or
otherwise by GPU, Merger Subsidiary or any other subsidiary of GPU to
be voted in favor of the Merger.
(b) Notwithstanding anything to the contrary in this
Agreement, in the event that the Merger Subsidiary, or any other direct
or indirect subsidiary of GPU, acquires at least 90% of the outstanding
shares of each class of capital stock of MYR, at the request of GPU or
the Merger Subsidiary, the parties shall take all necessary and
appropriate action to cause the Merger to become effective, as soon as
practicable after the expiration of the Offer, without a meeting of
stockholders of MYR in accordance with Section 253 of the DGCL.
6.1.3 (a) MYR shall immediately cease and cause to be
terminated any activities, discussions or negotiations conducted prior
to the date of this Agreement with any parties other than GPU with
respect to any Acquisition Proposal. MYR shall not, and shall cause its
subsidiaries and the officers, directors, agents, employees, and
advisors of MYR and its subsidiaries not to, initiate, solicit or
encourage inquiries or proposals with respect to, or engage in any
negotiations concerning, or provide any confidential information to, or
have any discussions with, any person relating to, any Acquisition
Proposal. Notwithstanding the foregoing, MYR shall be permitted to
engage in any discussions or negotiations with, or provide any
information to, any person in response to a bona fide written
Acquisition Proposal by any such person, if and only to the extent that
in each such case such proposal was not solicited in violation of this
Agreement and (A) shares of MYR Common Stock shall not have been
accepted for payment under the Offer; (B) the MYR Board of Directors
determines in good faith that such Acquisition Proposal would, if
consummated, constitute a Superior Proposal; (C) the MYR Board of
Directors determines, in good faith
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after consultation with outside counsel, that such action is legally
advisable for it to act in a manner consistent with its fiduciary
duties under applicable law; and (D) prior to providing any information
or data to any person or entering into discussions or negotiations with
any person, MYR receives from such person an executed confidentiality
agreement containing terms no less restrictive with respect to such
person than the terms of the Confidentiality Agreement with respect to
GPU. MYR shall notify GPU promptly, but in any event within 24 hours,
of such inquiries, proposals, or offers received by, any such
information requested from, or any such discussions or negotiations
sought to be initiated or continued with, any of its representatives
indicating, in connection with such notice, the name of such person and
the material terms and conditions of any proposals or offers. For the
purposes of this Agreement: (i) "Acquisition Proposal" shall mean (a) a
merger or consolidation, or any similar transaction, involving MYR
(other than mergers, consolidations or similar transactions involving
solely MYR and/or one or more wholly-owned subsidiaries of MYR), (b) a
purchase or other acquisition of greater than 10% of the consolidated
assets of MYR and its subsidiaries, (c) a purchase or other acquisition
(including by way of merger, consolidation, share exchange, tender or
exchange offer or otherwise) of beneficial ownership of securities of
MYR (other than (1) as a result of the exercise or conversion of
securities of MYR outstanding on the date hereof, or (2) in connection
with any transaction described in the Disclosure Schedule), (d) any
substantially similar transaction, or (e) any inquiry or indication of
interest with respect to any of the foregoing; in each case other than
the transactions contemplated by this Agreement; and (ii) "Superior
Proposal" shall mean any bona fide written proposal (a) made by a third
party to acquire, directly or indirectly, for consideration consisting
of cash and/or securities, all of the MYR Common Stock then outstanding
or all or substantially all of the consolidated assets of MYR and
otherwise on terms which the MYR Board of Directors determines in its
good faith judgment (based on the advice of the MYR Financial Advisor
or another financial advisor of nationally recognized reputation) to be
more favorable to the stockholders of MYR than the transactions
contemplated by this Agreement and (b) which the Board determines in
good faith is reasonably likely to be consummated on the terms set
forth in the proposal taking into account all legal, financial,
regulatory and other aspects of the proposal, including, without
limitation, the nature and sufficiency of financing for the proposal
and the person making the proposal. MYR shall advise GPU of any
material developments with respect to any proposal as to which MYR is
exercising its rights pursuant to the third sentence of this Section
6.1.3(a) promptly upon the occurrence thereof. Nothing in this Section
6.1.3(a) shall (w) permit MYR to terminate this Agreement (except as
specifically provided in Section 10.4 hereof), (x) permit MYR to enter
into any agreement with respect to an Acquisition Proposal during the
term of this Agreement, (y) affect any other obligation of MYR under
this Agreement, or (z) prohibit consultation by management of MYR with
employees of MYR in connection with the purchase or sale of MYR Common
Stock by employees in the open market.
(b) Except as set forth in this Section 6.1.3(b), neither the
MYR Board of Directors nor any committee thereof shall (i) withdraw or
modify, or propose to withdraw or modify, in a manner adverse to GPU,
the approval or recommendation by the MYR
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Board of Directors of the Offer and the "agreement of merger" (as such
term is used in Section 251 of the DGCL) contained in this Agreement,
(ii) approve or recommend, or propose to approve or recommend, any
Acquisition Proposal or (iii) cause MYR or any of its subsidiaries to
enter into any letter of intent, agreement in principle, acquisition
agreement, merger agreement or other similar agreement with respect to
any Acquisition Proposal. Notwithstanding the foregoing, in the event
that the MYR Board of Directors determines in good faith, after
consultation with outside counsel, that it is legally advisable to do
so in order to act in a manner consistent with its fiduciary duties
under applicable law, the MYR Board of Directors may withdraw or modify
its approval or recommendation of the Offer and the "agreement of
merger" contained in this Agreement, the Merger and this Agreement (or
not recommend it before the Proxy Statement is sent to stockholders) or
approve or recommend a Superior Proposal, but in each case only at a
time that is after the third business day following GPU's receipt of
written notice advising GPU that the MYR Board of Directors has
received a proposal which is a Superior Proposal, specifying the
material terms and conditions of such proposal and identifying the
Person making such proposal. Nothing in this Section 6.1.3 shall
prohibit MYR from complying, to the extent applicable, with Rules 14d-9
and 14e-2(a) promulgated under the 1934 Act with respect to an
Acquisition Proposal.
6.2 ACCESS TO INFORMATION; DUE DILIGENCE INVESTIGATIONS. Upon
reasonable notice, MYR shall afford to the officers, directors, employees and
authorized representatives (including without limitation accountants and
lawyers) of GPU access, during normal business hours during the period prior to
the Effective Time, to all its properties, books, contracts, commitments and
records (including without limitation work papers of independent public
accountants) and, during such period, MYR shall (and shall cause its
subsidiaries to) furnish promptly to GPU all information concerning its
business, properties and personnel as GPU may reasonably request, provided,
however, that any furnishing of such information and any such investigation
shall not affect the right of GPU to rely on the representations and warranties
made in or pursuant to this Agreement. GPU agrees that all information and
material received by it will be treated as confidential, and that it will not
disclose, divulge or communicate such information to any other person, except to
its directors, officers, employees, attorneys, accountants, representatives and
consultants and then only to the extent as may be necessary to evaluate the
information and any negotiations relating to the transactions contemplated
hereby and provided that GPU first advises such person of the confidential
nature of the information and the requirements of this Section 6.2 and Section
6.7. GPU further agrees that all such information will be used solely for the
purpose of evaluating the transactions contemplated hereby and that it will not
use or exploit any such information for any other purpose whatsoever. If the
Merger is not concluded for any reason such information will be returned to MYR.
The foregoing provisions shall also apply to any information previously
furnished by MYR to GPU. The foregoing provisions shall not apply to any
information which GPU is required by law to disclose to a third party or is
generally known to the public other than as a result of the breach of this
Section 6.2.
6.3 DISCLOSURE SCHEDULE SUPPLEMENT; NOTICE OF MATERIAL DEVELOPMENTS;
FURNISHING OF CERTAIN INFORMATION. GPU and MYR will each give prompt written
notice to the other of (i) any action, suit, claim or governmental investigation
that may be brought, asserted, commenced or threatened against the notifying
party or any of its officers, directors or
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stockholders, and that could affect any of the transactions contemplated hereby,
and (ii) any other material development affecting the assets, properties,
financial condition, results of operations or business prospects of the
notifying party, or (iii) any breach of any representation or warranty of such
party, or the occurrence of any event that could reasonably be expected to
result in any representation or warranty no longer being accurate, except that
neither party shall be obligated to notify the other of any development
affecting the line transmission and public utility industries generally.
6.4 MAINTENANCE OF MYR AS GOING CONCERN. Except as expressly
contemplated or permitted by this Agreement, or to the extent GPU shall consent
in writing, during the period from the date of this Merger Agreement to the
Effective Time, MYR shall conduct (and shall cause its subsidiaries to conduct)
its operations according to its ordinary and usual course of business, and shall
use its reasonable best efforts to preserve intact its business organization,
keep available the services of its officers and employees and maintain
satisfactory relationships with licensors, suppliers, distributors, customers
and others having business relationships with it. During the period from the
date of this Agreement to the Effective Time, representatives of each of GPU and
MYR shall confer on a regular and frequent basis with one or more designated
representatives of the other to report on operational matters and to report the
general status of ongoing operations. MYR shall provide GPU promptly with all
documents filed by it with the SEC.
6.5 ABSENCE OF MATERIAL CHANGES. Prior to the Effective Time, MYR and
each of its subsidiaries shall not, other than in the normal course of business
and in conformity with past practices, or as contemplated by this Agreement or
the Disclosure Schedule, without the consent of GPU (which consent will not be
unreasonably withheld), (i) make any material change in its business or
operations; (ii) make any material change in its accounting policies applied in
the preparation of the financial statements referred to in Section 4.5; (iii)
declare any dividends in cash on the issued and outstanding shares of its common
stock, or make any other distribution of any kind in respect thereof other than
regular quarterly dividends consistent with past practices; (iv) issue, sell or
otherwise distribute any authorized but unissued shares of its capital stock
(other than upon exercise of options outstanding on the date of this Agreement
or permitted to be granted hereby or upon conversion of outstanding convertible
notes) or effect any stock split, stock dividend or combination or
reclassification of any such shares or grant or commit to grant or amend or
modify any option, warrant or other right to subscribe for or purchase or
otherwise acquire any shares of its capital stock or any security convertible
into or exchangeable for any such shares (other than grants of options under
stock option plans); (v) purchase or redeem any of its capital stock (or permit
any of its subsidiaries to purchase any of its capital stock); (vi) adopt any
amendment to its charter or bylaws; or (vii) dispose, or permit any of its
subsidiaries to dispose, of any of its assets outside the ordinary course of
business. In addition, from and after the date of this Agreement and prior to
the Effective Time, except as contemplated by the Disclosure Schedule, neither
MYR nor any of its subsidiaries shall, without the consent of GPU (which consent
may be granted or withheld in GPU's sole discretion): (i) pay any bonus or
increase the rate of compensation of any of their employees, except for (A)
payment of bonus compensation for the year ending December 31, 1999 in an
aggregate amount not to exceed the amount set forth in the Disclosure Schedule,
(B) salary increases for officers of MYR or any of its subsidiaries approved by
GPU (which approval shall not be unreasonably withheld), and (C)
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regular annual salary increases for other salaried employees consistent with
past practice which do not exceed 5% in the aggregate of all employees' existing
salary rates, (ii) make or obligate itself to make capital expenditures in
excess of $500,000, provided that each individual expenditure in excess of
$100,000 shall be made only with GPU's approval (which approval shall not be
unreasonably withheld), (iii) voluntarily incur any material obligations or
liabilities (including any indebtedness) other than in the ordinary course of
business, (iv) make any change in the Plans described in the Disclosure Schedule
or adopt new employee benefit plans or enter into any employment or other
similar agreement, or (v) amend or waive any provision of, or grant any approval
under, any standstill agreement.
6.6 REASONABLE BEST EFFORTS. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use its reasonable best efforts
to take, or cause to be taken, all action and to do, or cause to be done, all
things necessary, proper or advisable under applicable laws and regulations to
consummate and make effective the transactions contemplated by this Agreement,
including using its reasonable best efforts to satisfy the conditions precedent
to the obligations of any of the parties hereto, to obtain all necessary
waivers, consents and approvals, to effect all necessary registrations and
filings and to lift any injunction or other legal bar to the transactions
contemplated hereby (and, in such case, to proceed with the transactions
contemplated hereby as expeditiously as possible).
6.7 PUBLICITY. GPU and MYR agree that they will consult with each other
concerning any proposed press release or public announcement pertaining to the
transactions contemplated hereby and shall use all reasonable efforts to agree
upon the text of any such press release or public announcement prior to the
publication of such press release or the making of such public announcement.
Except for any such mutually agreed press release or public announcement, and
except as and to the extent required by law or as contemplated in the following
sentence, neither GPU, without the prior written consent of MYR, nor MYR,
without the prior written consent of GPU, shall, and each shall direct its
representatives not to, directly or indirectly, make any public comment,
statement or communication with respect to the Merger or the terms of this
Agreement. The parties agree that each of them may make disclosures to any
lender to or other person in a business relationship with such party, including
employees of that company, to whom such disclosure is necessary or appropriate
in order to satisfy any of the conditions to the consummation of the Merger or
to assist in effectuating the Merger or to whom such disclosure otherwise is
determined in good faith by such party to be appropriate under the
circumstances, provided that the person or persons to whom such disclosure is
made has agreed, where appropriate, to restrictions on disclosure consistent
with those set forth herein.
6.8 NONSOLICITATION. Each of GPU and MYR agrees that, without the prior
consent of the other party, it will not, for a period commencing on the date
hereof and continuing until the earlier of (i) the Effective Time, or (ii)
December 31, 2001, directly or indirectly solicit for employment any person who
is now employed by the other party or any of its subsidiaries provided that any
advertisement in a newspaper or other media or general solicitation shall not
constitute a solicitation as used herein.
6.9 HSR ACT COMPLIANCE. GPU and MYR shall each prepare and file with
the Federal Trade Commission and the United States Department of Justice any
notification required
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to be filed with respect to the Merger under the HSR Act or any rules or
regulations promulgated thereunder. Each of GPU and MYR shall cause any such
filing it makes to be true and accurate in all material respects and responsive
to the requirements of the HSR Act and any such rules and regulations. Each of
GPU and MYR agrees to make available to the other such information relative to
its business, assets and property as may be required for the preparation of such
notifications.
6.10 PUHCA COMPLIANCE. As promptly as practicable after the execution
of this Agreement, GPU shall prepare and file with the SEC an Application on
Form U-1 seeking authorization under PUHCA for the acquisition by Merger
Subsidiary of the MYR Common Stock, the Merger and the transactions contemplated
hereby.
7. CONDITIONS TO THE OBLIGATIONS OF GPU AND MERGER SUBSIDIARY
The obligations of GPU and Merger Subsidiary to consummate the Merger
shall be subject to the fulfillment (or waiver by GPU and Merger Subsidiary) at
or prior to the Effective Time of each of the following conditions:
7.1 RECEIPT OF NECESSARY CONSENTS. All necessary consents or approvals
of any governmental body or agency or third parties necessary for the
consummation by GPU and MYR of the transactions contemplated hereby including,
without limitation, the 1935 Act Order, shall have been obtained and shall be in
full force and effect.
7.2 HSR ACT WAITING PERIOD. The waiting period imposed by the HSR Act
with respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
7.3 NO RESTRAINT. No court or governmental regulatory authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, judgment, decree, injunction or other
order (whether temporary, preliminary or permanent) or taken any action which
prohibits the consummation of the transactions contemplated by this Agreement,
and each party agrees to use all reasonable efforts to remove any such
prohibition on the consummation of the transactions contemplated by this
Agreement.
7.4 CORPORATE ACTION. The stockholders of MYR shall have taken all
corporate action (if required under applicable law) necessary to effect the
Merger. MYR shall have furnished GPU with certified copies of resolutions duly
adopted by its directors and stockholders in connection with the Merger.
7.5 PURCHASE OF SHARES IN OFFER. The Merger Subsidiary shall have
accepted for payment and paid for shares of MYR Common Stock tendered pursuant
to the Offer.
8. CONDITIONS TO OBLIGATION OF MYR
The obligation of MYR to consummate the Merger shall be subject to the
fulfillment (or waiver by MYR) at or prior to the Effective Time of each of the
following conditions:
8.1 RECEIPT OF NECESSARY CONSENTS. All consents or approvals of any
governmental
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body or agency or third parties necessary for the consummation by GPU and Merger
Subsidiary of the transactions contemplated hereby including, without
limitation, the 1935 Act Order , shall have been obtained and shall be in full
force and effect.
8.2 HSR ACT WAITING PERIOD. The waiting period imposed by the HSR Act
with respect to the transactions contemplated by this Agreement shall have
expired or been terminated.
8.3 NO RESTRAINT. No court or governmental or regulatory authority of
competent jurisdiction shall have enacted, issued, promulgated, enforced or
entered any statute, rule, regulation, judgment, decree, injunction or other
order (whether temporary, preliminary or permanent) or taken any action which
prohibits the consummation of the transactions contemplated by this Merger
Agreement, and each party agrees to use all reasonable efforts to remove any
such prohibition on the consummation of the transactions contemplated by this
Agreement.
8.4 CORPORATE ACTION. The stockholders of MYR shall have taken all
corporate action (if required under applicable law) necessary to effect the
Merger. GPU and Merger Subsidiary shall have furnished MYR with certified copies
of resolutions duly adopted by the directors of GPU and Merger Subsidiary and
the stockholder of Merger Subsidiary in connection with the Merger.
8.5 PURCHASE OF SHARES IN OFFER. The Merger Subsidiary shall have
accepted for payment and paid for shares of MYR Common Stock tendered pursuant
to the Offer; however, this condition shall be deemed satisfied if the Merger
Subsidiary fails to accept for payment and pay for shares of MYR Common Stock
pursuant to the Offer in violation of the terms of the Offer.
9. CERTAIN ADDITIONAL AGREEMENTS
9.1 INDEMNIFICATION OF DIRECTORS AND OFFICERS.
9.1.1 GPU shall indemnify and provide advancement of expenses
to all present and former directors and officers of MYR and its
subsidiaries for acts or omissions occurring prior to the Effective
Time to the fullest extent now provided or made available to them by
MYR and its subsidiaries under applicable law, under their respective
articles of incorporation or bylaws and under existing indemnification
agreements (which GPU agrees shall continue in full force and effect
after the Effective Time). The provisions of this Section 9.1 shall be
in addition to the rights any officer or director may have under
applicable law, the articles of incorporation or bylaws of MYR or any
subsidiary, existing indemnification agreements, or otherwise.
9.1.2 For a period of six years after the Effective Time, GPU,
shall, or shall cause the surviving corporation to, maintain in effect,
if available, directors' and officers' liability insurance covering
those persons who are currently covered by MYR's directors' and
officers' liability insurance policy (a copy of which has been made
available to GPU) to the extent that it provides coverage for events
occurring on or prior to the Effective Time, on
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terms (including the amounts of coverage and the amounts of
deductibles, if any) that are no less favorable to such persons than
the terms now applicable to them under MYR's current policies;
provided, however, that in no event shall GPU or the surviving
corporation be required to expend more than 200% of the annual premium
currently paid by MYR for such coverage; and provided, further, that,
if the premium for such coverage exceeds such amount, GPU or the
surviving corporation shall purchase a policy with the greatest
coverage available for such annual premium.
9.1.3 This Section 9.1 shall survive the consummation of the
Merger at the Effective Time, and shall be binding on all successors
and assigns of the surviving corporation.
9.2 BENEFIT PLANS.
9.2.1 Each Plan with respect to which any current or former
employee of MYR or any of its subsidiaries (each, an "MYR Employee")
participates immediately prior to the Effective Time shall become
obligations of the surviving corporation at the Effective Time and, for
at least one year thereafter, GPU shall, or shall cause the surviving
corporation to either maintain the Plans (including incentive
compensation arrangements) or provide benefits that are comparable, in
the aggregate, to the benefits provided to the MYR Employees,
considered as a group, under such Plans as in effect immediately prior
to the Effective Time. Nothing in this Section 9.2.1 shall require the
surviving corporation or GPU to continue the employment of any MYR
Employee.
9.2.2 With respect to any employee benefit plans covering
employees of GPU and its subsidiaries ("GPU Plans"), GPU shall, or
shall cause the surviving corporation to: (i) with respect to any
medical or health plan, waive any pre-existing condition or exclusion
in any GPU Plans in which any MYR Employee may be entitled to
participate that would result in a lack of coverage for any condition
for which an MYR Employee would have been entitled to coverage under
the corresponding Plan; (ii) provide each MYR Employee with credit for
any co-payments and deductibles paid prior to the Effective Time (to
the same extent such credit was given under the analogous Plan prior to
the Effective Time) in satisfying any applicable deductible or
out-of-pocket requirements under any GPU Plans in which such employees
may be eligible to participate after the Effective Time, and (iii)
recognize all service of the MYR Employees with MYR or any of its
subsidiaries for purposes of eligibility to participate and vesting
credit in any GPU Plan in which the MYR Employees may be eligible to
participate after the Effective Time; provided that the foregoing shall
not apply to the extent it would result in duplication of benefits. GPU
represents that there are no waiting periods under any of its current
medical or health plans.
10. MISCELLANEOUS
10.1 AMENDMENT AND MODIFICATION. The parties hereto may amend, modify
and supplement this Agreement in such manner as may be agreed upon by them in
writing, whether before or after approval of the stockholders of MYR, except
that after such approval is obtained,
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any amendment, modification or supplement which requires stockholder approval
under applicable law shall not be made without such required approval.
10.2 EXPENSES.
10.2.1 Except as otherwise provided in this Section 10.2, the
parties agree that whether or not the Merger is consummated, GPU will
pay and bear all of the expenses incurred by it and MYR will bear all
of the expenses incurred by MYR in connection with the Merger and this
Agreement.
10.2.2 The parties agree that: (i) if MYR shall terminate this
Agreement pursuant to Section 10.4.7, (ii) if GPU shall terminate this
Agreement pursuant to Section 10.4.4 due to the failure to satisfy the
condition set forth in paragraph (g) of Annex A hereto, (iii) if (a)
MYR or GPU shall terminate this Agreement pursuant to Section 10.4.4
due to the failure to satisfy the Minimum Condition, (b) at any time
after the date of this Agreement and at or before the time of the event
giving rise to such termination there shall exist an Acquisition
Proposal and (c) within 12 months of the termination of this Agreement,
MYR enters into a definitive agreement with any third party with
respect to an Acquisition Proposal or an Acquisition Proposal is
consummated, or (iv) if GPU shall terminate this Agreement pursuant to
Section 10.4.6, then MYR concurrent with such termination in the case
of a termination as set forth in clause (i), (ii) and (iv) and
concurrent with the occurrence of an event set forth in clause
(iii)(c), shall pay to GPU $7 million. The payment provided by this
Section 10.2.2 shall be GPU's exclusive remedy in the event of the
termination of this Agreement under circumstances where such payment is
or becomes payable.
10.3 CERTAIN DEFINITIONS. For purposes of this Agreement:
10.3.1 The "actual knowledge" or "knowledge" of a person shall
include anything which any of the executive officers or directors of
such person or directors of any of its subsidiaries actually knows and
"best of knowledge" of a person shall include anything which any of the
executive officers or directors of such person or directors of any of
its subsidiaries knows after reasonable inquiry.
10.3.2 "Disclosure Schedule" shall refer to the disclosure
schedule delivered by MYR to GPU concurrently with the execution and
delivery of this Agreement, which disclosure schedule shall form a part
of this Agreement.
10.3.3 "Material Adverse Effect" means, when used in
connection with GPU or MYR, any change or development that either
individually or in the aggregate with all other such changes or
developments is materially adverse to the business, assets, properties,
condition (financial or otherwise), or results of operations of such
party and its subsidiaries taken as a whole.
10.3.4 "Material" means, when used in connection with GPU or
MYR, material to the business, assets, properties, condition (financial
or otherwise), or results of
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operations of such party and its subsidiaries taken as a whole.
10.3.5 A "person" shall include an individual, corporation,
partnership, limited liability company, association, trust,
unincorporated organization or other entity.
10.3.6 A "subsidiary" of any person means another person, an
amount of the voting securities, other voting ownership or voting
partnership interests of which is sufficient to elect at least a
majority of its board of directors or other governing body (or, if
there are no such voting interests, 50% or more of the equity interests
of which) is owned directly or indirectly by such first person.
10.4 TERMINATION. Anything to the contrary herein notwithstanding, this
Agreement may be terminated and the Merger may be abandoned, whether before or
after approval of the stockholders of GPU and MYR:
10.4.1 by the mutual written consent of all of the parties
hereto at any time prior to the Effective Time;
10.4.2 by GPU and Merger Subsidiary (i) if due to an
occurrence that would result in a failure to satisfy any of the
conditions set forth in Annex A, the Merger Subsidiary shall have (A)
failed to commence the Offer within five business days following the
date of this Agreement, or (B) terminated the Offer; or (ii) if MYR
deliberately fails to perform in any material respect any of its
obligations under this Agreement, and, at the time of such failure,
GPU's and the Merger Subsidiary's designees on the board of directors
of MYR do not constitute a majority of the members of the board of
directors of MYR;
10.4.3 by MYR if the Merger Subsidiary shall have (A) failed
to commence the Offer within five business days following the date of
this Agreement, (B) terminated the Offer or (C) failed to pay (by
deposit with the depository for the Offer) for shares of MYR Common
Stock pursuant to the Offer within five business days following the
expiration of the Offer;
10.4.4 by any party giving written notice to the other parties
at any time after the expiration or termination of the Offer without
GPU or Merger Subsidiary purchasing any shares of MYR Common Stock
pursuant thereto, provided that a party may not terminate pursuant to
this Section 10.4.4 if it is in material breach of the terms of this
Agreement;
10.4.5 by any party hereto if the purchase of shares of MYR
Common Stock pursuant to the Offer shall not have taken place by June
30, 2000, provided that a party may not terminate pursuant to this
Section 10.4.5 if such party is in material breach of any of its
obligations specified herein;
10.4.6 by GPU if the Board of Directors of MYR, prior to the
purchase of shares of MYR Common Stock pursuant to the Offer (i) shall
withdraw or modify in any adverse manner its approval or recommendation
of this Agreement pursuant to Section 6.1.3, (ii)
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shall approve or recommend any Acquisition Proposal or Superior
Proposal or (iii) shall resolve to take any of the actions specified in
clauses (i) or (ii) above; or
10.4.7 by MYR at any time prior to the purchase of shares of
MYR Common Stock pursuant to the Offer, upon three business days' prior
notice to GPU, if the Board of Directors of MYR shall approve a
Superior Proposal; provided, however, that (i) MYR shall have complied
with Section 6.1.3, (ii) the Board of Directors of MYR shall have
concluded in good faith, after giving effect to all concessions which
may be offered by GPU pursuant to clause (iii) below, after
consultation with its financial advisors and outside counsel, that such
proposal continues to be a Superior Proposal and (iii) prior to any
such termination, MYR shall, and shall cause its financial and legal
advisors to, negotiate with GPU to make such adjustments in the terms
and conditions of this Agreement as would enable GPU to proceed with
the transactions contemplated hereby; provided, however, that it shall
be a condition to termination by MYR pursuant to this Section 10.4.7
that MYR shall have made the payment to GPU required by Section 10.2.2.
The liability of any party to this Agreement for any breach or
violation of this Agreement shall not be limited except as specifically set
forth in Section 10.2.2.
10.5 BINDING EFFECT; THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns. This Agreement shall not confer any rights or
remedies upon any person other than the parties hereto and their respective
successors and permitted assigns; provided, however, that the provisions of
Section 9.1 are intended for the benefit of the persons identified therein. No
person who is a party to this Agreement shall be permitted to assign this
Agreement or any of its rights hereunder without the consent of the other
parties hereto. No person for whose benefit this Agreement or any of its
provisions are intended shall be permitted to assign any of such party's rights
without the consent of GPU.
10.6 ENTIRE AGREEMENT. This instrument, the exhibits attached hereto
and the Disclosure Schedule contain the entire agreement of the parties hereto
with respect to the Merger and the other transactions contemplated herein, and
supersede all prior understandings and agreements of the parties with respect to
the subject matter hereof. Any reference herein to this Agreement shall be
deemed to include the exhibits attached hereto and the Disclosure Schedule.
10.7 HEADINGS. The descriptive headings in this Agreement are inserted
for convenience only and do not constitute a part of this Agreement.
10.8 EXECUTION IN COUNTERPART. This Agreement may be executed in any
number of counterparts, each of which shall be deemed an original.
10.9 NOTICES. Any notice, request, information or other document to be
given hereunder shall be in writing. Any notice, request, information or other
document shall be deemed duly given upon receipt after it is sent by registered
or certified mail, postage prepaid, to the intended recipient, addressed as
follows:
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If to MYR prior to the Closing Date, addressed to such party as
follows:
MYR Group, Inc.
Three Continental Towers
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Chairman and Chief Executive Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
If to GPU or Merger Subsidiary:
GPU, Inc.
c/o GPU Service, Inc.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Vice President - Strategic Initiatives
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with copies to:
Berlack, Israels & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Any party may send any notice, request, information or other document to be
given hereunder using any other means (including personal delivery, courier,
messenger service, facsimile transmission or ordinary mail), but no such notice,
request, information or other document shall be deemed duly given unless and
until it is actually received by the party for whom it is intended.
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Any party may change the address to which notices hereunder are to be sent to it
by giving written notice of such change of address in the manner herein provided
for giving notice.
10.10 GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware (without reference to its
conflicts of laws rules).
10.11 FURTHER ASSURANCES. In the event that at any time after the
Effective Time further action is necessary to carry out the purposes of this
Agreement, the parties shall take all such necessary action.
10.12 NO INDIVIDUAL LIABILITY. Whether or not the Effective Time shall
occur, no incorporator, director, officer, employee, or stockholder of MYR or
GPU shall have any liability under the terms of this Agreement or as a result of
the transactions contemplated hereby, and, no recourse shall be had against any
such incorporator, director, officer, employee, or stockholder of GPU or MYR,
whether by virtue of any constitutional provision or statute or rule of law, or
by enforcement of any assessment or penalty or in any other manner, all such
liability being expressly waived and released by the parties hereto as part of
the consideration in entering into this Agreement, in each case to the fullest
extent permitted by law.
10.13 NONSURVIVAL OF REPRESENTATIONS AND WARRANTIES. None of the
representations and warranties of this Agreement or in any schedule, instrument
or other document delivered pursuant to this Agreement shall survive the
Effective Time. This Section 10.13 shall not limit any covenant or agreement of
the parties hereto which by its terms contemplates performance after the
Effective Time.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
GPU, INC.
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇
Chairman and Chief Executive Officer
MYR GROUP INC.
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Chairman and Chief Executive Officer
GPX ACQUISITION CORP.
By /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
43
MYR DISCLOSURE SCHEDULES
Schedule 2.1.3 Option Disclosure
Schedule 4.1 Subsidiaries
Schedule 4.2 Capital Stock
Schedule 4.3 Consents
Schedule 4.6 Liabilities
Schedule 4.7 Taxes
Schedule 4.8 Real Estate
Schedule 4.9 Liens and Encumbrances
Schedule 4.12 Customers
Schedule 4.13 Certain Documents and Information
Schedule 4.14 Insurance
Schedule 4.15 Litigation
Schedule 4.17 Material Adverse Change
Schedule 4.18 Absence of Certain Acts or Events
Schedule 4.19 Compliance with Laws
Schedule 4.20 Environmental Matters
Schedule 4.21 Labor Relations
Schedule 4.22 Employee Benefits
Schedule 4.23 Contract Revenue
Schedule 6.5 Conduct of Business
44
EXHIBITS
Exhibit 1.5 Amended and Restated Certificate of Incorporation of
Surviving Corporation
Exhibit 1.8 Certificate of Merger
45
ANNEX A
TO
AGREEMENT AND PLAN OF MERGER
Conditions of the Offer. Notwithstanding any other provisions of the
Offer, and in addition to (and not in limitation of) the Merger Subsidiary's
right to amend the Offer at any time in its sole discretion, but nevertheless
subject to the provisions of the Agreement (capitalized terms used herein and
not otherwise defined herein having the meanings ascribed to such terms in the
Agreement) the Merger Subsidiary shall not be required to accept for payment, or
pay for, and may delay the acceptance for payment, or the payment, of, any
tendered shares of MYR Common Stock, if (i) the Minimum Condition shall not have
been satisfied, (ii) all waiting periods under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvement Act of 1976, as amended, applicable to the purchase of shares of MYR
Common Stock pursuant to the Offer shall not have expired or been terminated,
(iii) the SEC shall not have issued an order reasonably acceptable to GPU and
the Merger Subsidiary authorizing the acquisition of the MYR Common Stock, the
Merger and the other transactions contemplated by this Agreement under the
Public Utility Holding Company Act of 1935, as amended or (iv) at any time on or
after the date of the Agreement and at or before the time of payment for any
such shares of MYR Common Stock (whether or not any shares of MYR Common Stock
have theretofore been accepted for payment or paid for pursuant to the Offer),
any of the following events shall occur:
(a) any Material Adverse Effect with respect to MYR shall have occurred
or be threatened; or
(b) there shall have occurred (1) any general suspension of trading in,
or limitation on prices for, securities on the New York Stock Exchange or the
American Stock Exchange (excluding any coordinated trading halt triggered solely
as a result of a specified decrease in a market index), (2) a declaration of a
banking moratorium or any suspension of payments in respect of banks in the
United States (whether or not mandatory), (3) any material limitation (whether
or not mandatory) imposed by any governmental authority on the extension of
credit by banks or other lending institutions in the United States that
materially and adversely affects the ability of GPU and the Merger Subsidiary to
obtain extensions of credit, or (4) from the date of the Agreement through the
date of termination or expiration of the Offer, a decline of at least 33% in
either the Dow ▇▇▇▇▇ Average of Industrial Stocks or the Standard & Poor's 500
Index; or
(c) any of the representations and warranties made by MYR in the
Agreement that are qualified by materiality or Material Adverse Effect shall not
be true and correct in all respects, or any other representation or warranty
made by MYR in the Agreement shall not be true and correct in any material
respect, or MYR shall have breached any covenant contained in the Agreement or
the Agreement shall have been terminated in accordance with its terms; or
(d) there shall have been any action taken, or any statute, rule,
regulation, judgment, order or injunction promulgated, enacted, entered or
enforced, by any state, federal or foreign
46
government or governmental authority or by any court, domestic or foreign (a
"Governmental Entity), that could reasonably be expected to, or any Governmental
Entity shall have instituted or threatened litigation that seeks to, (i) make
the acceptance for payment of, or the payment for, some or all of the shares of
MYR Common Stock or consummation of the Merger illegal or otherwise prohibited
or impose any damages or fines in connection therewith that are material in
amount in relation to the transactions contemplated by the Agreement, (ii)
impose material limitations on the ability of GPU or the Merger Subsidiary to
acquire or hold or to exercise effectively all rights of ownership of MYR Common
Stock, including, without limitation, the right to vote any shares of MYR Common
Stock purchased by either of them on all matters properly presented to the
stockholders of MYR, (iii) require GPU and MYR or any of their respective
affiliates or subsidiaries to dispose or hold separate any material portion of
their assets or business of any of them, or (iv) prohibit or impose any material
limitation on GPU's or the Merger Subsidiary's ownership or operation of all or
a material portion of the assets or business of MYR or any of its subsidiaries
or affiliates; or
(e) MYR, GPU or the Merger Subsidiary shall have failed to receive any
or all governmental consents and approvals to consummation of the Offer, which,
if not received, could reasonably be expected to have a Material Adverse Effect;
or
(f) the board of directors of MYR shall have publicly (including by
amendment of its Schedule 14D-9) withdrawn or amended in any respect its
recommendation of the Offer or shall have resolved to do so, unless such
withdrawal or amendment results from a material breach by GPU or Merger
Subsidiary of any representations or warranties herein or a failure by GPU or
Merger Subsidiary to fulfill any material covenant herein; or
(g) any corporation, entity, "group" or "person" (as defined in the
Securities Exchange Act of 1934, as amended), other than GPU or any of its
affiliates, shall have acquired beneficial ownership of a majority of the
outstanding shares of MYR Common Stock.
The foregoing conditions are for the sole benefit of GPU and Merger
Subsidiary and may be asserted by GPU or Merger Subsidiary regardless of the
circumstance giving rise to such condition and, subject to the terms of the
Agreement, may be waived by GPU and Merger Subsidiary, in whole or in part at
any time and from time to time, in their sole discretion (except that the
Minimum Condition may not be waived by GPU without the consent of MYR). The
failure by GPU and Merger Subsidiary at any time to exercise any of the
foregoing rights shall not be deemed a waiver of any such right and each such
right shall be deemed an ongoing right, which may be asserted at any time and
from time to time. Any determination by GPU and Merger Subsidiary shall be final
and binding upon all parties, including tendering stockholders.
47
EXHIBIT 1.5
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
MYR GROUP INC.
-----------------
It is hereby certified that:
FIRST: The name of the corporation (hereinafter called the
"corporation") is MYR GROUP INC.
SECOND: The address, including street, number, city and county, of the
registered office of the corporation in the State of Delaware is ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ of New Castle; and the name of the registered
agent of the corporation in the State of Delaware at such address is Corporation
Service Company.
THIRD: The purpose of the corporation is to engage in any lawful act or
activity for which corporations may be organized under the General Corporation
Law of the State of Delaware.
FOURTH: The total number of shares of stock which the corporation shall
have authority to issue is one hundred (100) shares, all of which are without
par value. All such shares are of one class and are shares of Common Stock.
FIFTH: The corporation is to have perpetual existence.
SIXTH: The personal liability of the directors of the corporation is
hereby eliminated to the fullest extent permitted by paragraph (7) of subsection
(b) of Section 102 of the General Corporation Law of the State of Delaware, as
the same may be amended and supplemented from time to time.
SEVENTH: The board of directors of the corporation is expressly
authorized to adopt, amend or repeal bylaws of the corporation.
EIGHTH: Elections of directors need not be by written ballot except and
to the extent provided in the by-laws of the corporation.
IN WITNESS WHEREOF, I have hereunto set my hand this __th day of
December, 1999.
-------------------------
48
EXHIBIT 1.8
CERTIFICATE OF MERGER
OF
MYR GROUP INC.
AND
GPX ACQUISITION CORP.
It is hereby certified that:
1. The constituent business corporations participating in the
merger herein certified are:
(i) MYR GROUP INC., which is incorporated under the
laws of the State of Delaware; and
(ii) GPX ACQUISITION CORP., which is incorporated
under the laws of the State of Delaware.
2. An Agreement and Plan of Merger has been approved, adopted,
certified, executed, and acknowledged by each of the aforesaid constituent
corporations in accordance with the provisions of subsection (c) of Section 251
of the General Corporation Law of the State of Delaware.
3. The name of the surviving corporation in the merger herein
certified is MYR Group Inc., which will continue its existence as said surviving
corporation under its present name upon the effective date of said merger
pursuant to the provisions of the General Corporation law of the State of
Delaware.
4. The Amended and Restated Certificate of Incorporation of
MYR Group Inc. attached hereto shall be the Certificate of Incorporation of said
surviving corporation until amended and changed pursuant to the provisions of
the General Corporation Law of the State of Delaware.
5. The executed Agreement of Merger between the aforesaid
constituent corporations is on file at an office of the aforesaid surviving
corporation, the address of which is as follows:
[address]
6. A copy of the aforesaid Agreement and Plan of Merger will
be furnished by the aforesaid surviving corporation, on request, and without
cost, to any stockholder of each of
49
the aforesaid constituent corporations.
Dated: December ___, 1999 MYR GROUP INC.
By:
Name:
Title:
Dated: December ___, 1999 GPX ACQUISITION CORP.
By:
Name:
Title: