EXHIBIT 2.9
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") is made as of
June 27, 1997, by and among Innovative Valve Technologies, Inc., a Delaware
corporation ("IVT"), IVT Acquisition, Inc., a Delaware corporation and a wholly
owned subsidiary of IVT ("IVT Sub"), and The Safe Seal Company, Inc., a Texas
corporation (the "Company").
PRELIMINARY STATEMENT
The parties to this Agreement have determined it is in their best
long-term interests to effect a business combination by means of a merger
pursuant to which IVT Sub will merge into the Company on the terms and subject
to the conditions set forth herein (the "Merger").
NOW, THEREFORE, in consideration of the premises and the mutual
agreements, representations and undertakings contained herein, the parties
hereto hereby agree as follows:
Paragraph 1. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms have the meanings assigned to them below in this
Paragraph 1.
"ACQUISITION CONSIDERATION" means for the Company Common Stock and
the Company Preferred Stock the consideration specified in Paragraph 2.
"CERTIFICATE OF MERGER" means the articles or certificate of merger
respecting the Merger and containing the information required by the laws
of Texas and Delaware to effect the Merger.
"CHARTER DOCUMENTS" of any specified corporation means the articles
or certificate of incorporation and bylaws of that corporation.
"CLOSING" has the meaning specified in Paragraph 3.
"COMPANY CAPITAL STOCK" means the Company Common Stock or the
Company Preferred Stock.
"COMPANY COMMON STOCK" means the Common Stock, par value $.01 per
share, of the Company.
"COMPANY PREFERRED STOCK" means the Preferred Stock, par value $.01
per share, Class A of the Company.
"DGCL" means the General Corporation Law of the State of Delaware.
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"EFFECTIVE TIME" has the meaning specified in Paragraph 2.
"ENTITY" means any sole proprietorship, corporation, partnership of
any kind having a separate legal status, limited liability company,
business trust, unincorporated organization or association, mutual
company, joint stock company or joint venture.
"FINAL PROSPECTUS" means the prospectus included in the Registration
Statement at the time it becomes effective, except that if the prospectus
first furnished to the Underwriter after the Registration Statement
becomes effective for use in connection with the IPO differs from the
prospectus included in the Registration Statement at the time it becomes
effective (whether or not that prospectus so furnished is required to be
filed with the SEC pursuant to Securities Act Rule 424(b)), the prospectus
so first furnished is the "Final Prospectus."
"IPO" means the first time a registration statement filed under the
Securities Act and respecting a primary offering by IVT to the public of
shares of IVT Common Stock is declared effective under the Securities Act
and the shares registered by that registration statement are issued and
sold by IVT (otherwise than pursuant to the exercise by the Underwriter of
any over-allotment option).
"IPO CLOSING DATE" means the date on which IVT first receives
payment for the shares of IVT Common Stock it sells to the Underwriter in
the IPO.
"IPO PRICE" means the price per share of IVT Common Stock which is
set forth as the "price to public" on the cover page of the Final
Prospectus.
"IPO PRICING DATE" means the date, if any, on which IVT and the
Underwriter agree in the Underwriting Agreement to the price per share of
IVT Common Stock at which the Underwriter, subject to the terms and
conditions of the Underwriting Agreement, will purchase newly issued
shares of IVT Common Stock from IVT on the IPO Closing Date.
"IVT COMMON STOCK" means the common stock, par value $.001 per
share, of IVT.
"REGISTRATION STATEMENT" means the registration statement, including
(a) each preliminary prospectus included therein prior to the date on
which that registration statement is declared effective under the
Securities Act (including any prospectus filed with the SEC pursuant to
Securities Act Rule 424(b)), (b) the Final Prospectus and (c) any
amendments thereof and all supplements and exhibits thereto, filed by IVT
with the SEC to register shares of IVT Common Stock under the Securities
Act for public offering and sale in the IPO.
"SEC" means the Securities and Exchange Commission.
"SECURITIES ACT" means the Securities Act of 1933.
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"STOCKHOLDER" means any holder of Company Capital Stock issued and
outstanding immediately prior to the Effective Time.
"SURVIVING CORPORATION" means the Company, which is to be designated
in the Certificate of Merger as the surviving corporation of the Merger.
"TBCA" means the Texas Business Corporation Act.
"UNDERWRITER" means collectively (a) the investment banking firms
that prospectively may enter into the Underwriting Agreement and (b) from
and after the IPO Pricing Date, the investment banking firms parties to
the Underwriting Agreement.
"UNDERWRITING AGREEMENT" means the written agreement of the
Underwriter to purchase on a firm commitment basis shares of IVT Common
Stock from IVT for resale to the public initially at the IPO Price.
Paragraph 2. (A) CERTIFICATES OF MERGER. Subject to the terms and
conditions hereof, the Company will cause Certificates of Merger to be duly
executed and delivered on or promptly after the Closing Date and filed with the
Secretary of State of the State of Texas and the Secretary of State of the State
of Delaware.
(B) THE EFFECTIVE TIME. The effective time of the Merger (the
"Effective Time") will be the time on the IPO Closing Date which the
Certificates of Merger specify or, if the Certificates of Merger do not specify
another time, 8:00 a.m., New York City time, on the IPO Closing Date.
(C) CERTAIN EFFECTS OF THE MERGER. At and as of the Effective Time,
(1) IVT Sub will be merged with and into the Company in accordance with the
provisions of the TBCA and the DGCL, (2) IVT Sub will cease to exist as a
separate legal entity, (3) the articles of incorporation of the Company will be
amended to change the Company's authorized shares of capital stock to 1,000
shares, par value $1.00 per share, of Common Stock, (4) the Company will be the
Surviving Corporation and, as such, will, all with the effect provided by the
TBCA and the DGCL, (a) possess all the properties and rights, and be subject to
all the restrictions and duties, of the Company and IVT Sub and (b) be governed
by the laws of the State of Texas, (5) the Charter Documents of the Company then
in effect (after giving effect to the amendment to the Company's articles of
incorporation specified in clause (3) of this sentence) will become and
thereafter remain (until changed in accordance with (a) applicable law (in the
case of the articles of incorporation) or (b) their terms (in the case of the
bylaws)) the Charter Documents of the Surviving Corporation, (6) the initial
board of directors of the Surviving Corporation will be the persons named in
Schedule 2(C), and those persons will hold the office of director of the
Surviving Corporation, subject to the provisions of the applicable laws of the
State of Texas and the Charter Documents of the Surviving Corporation, and (7)
the initial officers of the Surviving Corporation will be as set forth in
Schedule 2(C), and each of those persons will serve in each office specified for
that person in Schedule 2(C),
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subject to the provisions of the Charter Documents of the Surviving Corporation,
until that person's successor is duly elected to, and, if necessary, qualified
for, that office.
(D) EFFECT OF THE MERGER ON CAPITAL STOCK. As of the Effective Time,
as a result of the Merger and without any action on the part of any holder
thereof:
(1) (a) each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time will be converted into the right
to receive, subject to the provisions of Paragraph 2(E), without interest,
on surrender of the certificate evidencing that share, one-half (1/2) of a
share of IVT Common Stock; (b) each share of Company Preferred Stock
issued and outstanding immediately prior to the Effective Time will be
converted into the right to receive, subject to the provisions of
Paragraph 2(E), without interest, on surrender of the certificate
evidencing that share, cash in the amount equal to $100 plus dividends
accrued through the day preceding the day on which the Effective Time
occurs at the rate of $9.50 per annum and which remain unpaid; and (c)
each share of Company Capital Stock issued and outstanding immediately
prior to the Effective Time will (i) cease to be outstanding and to exist
and (ii) be canceled and retired;
(2) each share of Company Capital Stock held in the treasury of the
Company or any Company Subsidiary will (a) cease to be outstanding and to
exist and (b) be canceled and retired;
(3) each option and warrant to purchase Company Common Stock which
is issued and outstanding immediately prior to the Effective Time will be
converted into an option to purchase such number of shares of IVT Common
Stock at such initial exercise prices as are specified in Schedule 2(D);
and
(4) each share of the common stock, par value $.01 per share, of IVT
Sub issued and outstanding immediately prior to the Effective Time will be
converted into one share of common stock, par value $.01 per share, of the
Surviving Corporation, and the shares of common stock of the Surviving
Corporation issued on that conversion will constitute all the issued and
outstanding shares of capital stock of the Surviving Corporation.
Each holder of a certificate representing shares of Company Capital Stock
immediately prior to the Effective Time will, as of the Effective Time and
thereafter, cease to have any rights respecting those shares other than the
right to receive, subject to the provisions of Paragraph 2(E), without interest,
the Acquisition Consideration and the additional cash, if any, owing with
respect to those shares as provided in Paragraph 2(F). Notwithstanding the
foregoing, the right to receive any Acquisition Consideration will not apply to
any shares of Company Capital Stock which shall have statutory appraisal rights
perfected with respect thereto ("Dissenting Shares") pursuant to the provisions
of Articles 5.11, 5.12 and 5.13 of the TBCA, it being intended and agreed that
any holder of Dissenting Shares shall have in consideration of the cancellation
thereof only the rights, if any, afforded to that holder under Articles 5.11,
5.12 and 5.13 of the TBCA.
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(E) DELIVERY, EXCHANGE AND PAYMENT. (1) At or after the Effective
Time: (a) the Stockholders, as holders of certificates representing shares of
Company Common Stock or Company Preferred Stock, will, on surrender of those
certificates to IVT (or any agent that may be appointed by IVT for purposes of
this Paragraph 2(E)), receive, subject to the provisions of this Paragraph 2(E)
and Paragraph 2(F), the Acquisition Consideration provided for those shares in
Paragraph 2(D); and (b) until any certificate representing Company Common Stock
has been surrendered and replaced pursuant to this Paragraph 2(E), that
certificate will, for all purposes, be deemed to evidence ownership of the
number of whole shares of IVT Common Stock included in the Acquisition
Consideration payable in respect of that certificate pursuant to Paragraph 2(D).
All shares of IVT Common Stock issuable in the Merger will be deemed for all
purposes to have been issued by IVT at the Effective Time.
(2) Each Stockholder will deliver to IVT (or any agent that may be
appointed by IVT for purposes of this Paragraph 2(E)) on or before the IPO
Closing Date the certificates representing all the Company Capital Stock owned
by that Stockholder, duly endorsed in blank, or accompanied by stock powers in
blank duly executed, by that Person, and with all necessary transfer tax and
other revenue stamps, acquired at that Person's expense, affixed and canceled.
Each Stockholder shall cure any deficiencies in the endorsement of the
certificates or other documents of conveyance respecting, or in the stock powers
accompanying, the certificates representing Company Capital Stock delivered by
that Person.
(3) No dividends (or interest) or other distributions declared or
earned after the Effective Time with respect to IVT Common Stock and payable to
the holders of record thereof after the Effective Time will be paid to the
holder of any unsurrendered certificates representing shares of Company Common
Stock for which shares of IVT Common Stock have been issued in the Merger until
those certificates are surrendered as provided herein, but (a) on that surrender
IVT will cause to be paid, to the Person in whose name the certificates
representing such shares of IVT Common Stock shall then be issued, the amount of
dividends or other distributions previously paid with respect to such whole
shares of IVT Common Stock with a record date, or which have accrued, subsequent
to the Effective Time, but prior to surrender, and the amount of any cash
payable to such Person for and in lieu of fractional shares pursuant to
Paragraph 2(F) and (b) at the appropriate payment date or as soon as practicable
thereafter, IVT will cause to be paid to that Person the amount of dividends or
other distributions with a record date, or which have been accrued, subsequent
to the Effective Time, but which are not payable until a date subsequent to
surrender, which are payable with respect to such whole shares of IVT Common
Stock, subject in all cases to any applicable escheat laws. No interest will be
payable with respect to the payment of such dividends or other distributions or
cash for and in lieu of fractional shares on surrender of outstanding
certificates.
(F) Notwithstanding any other provision herein, no fractional shares
of IVT Common Stock will be issued, and if any Stockholder would be entitled
hereunder to receive a fractional share of IVT Common Stock but for this
Paragraph 2(F), that Stockholder will be entitled hereunder to receive a cash
payment for and in lieu thereof in the amount (rounded upward to the
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nearest whole cent) equal to that Stockholder's fractional interest in a share
of IVT Common Stock multiplied by the IPO Price.
Paragraph 3. THE CLOSING. On or before the IPO Closing Date, the
parties hereto will take all actions necessary to (A) effect the Merger
(including, as permitted by the TBCA and the DGCL, (i) the execution of
Certificates of Merger (a) meeting the requirements of the TBCA and the DGCL and
(b) providing that the Merger will become effective on the Effective Date and
(ii) the filing of those Certificates of Merger with the Secretary of State of
the State of Texas and the Secretary of State of the State of Delaware) and (B)
verify the existence and ownership of the certificates evidencing the Company
Capital Stock to be exchanged for the Acquisition Consideration pursuant to
Paragraph 2(E) (all those actions collectively being the "Closing"). The Closing
will take place at the offices of Baker & Botts, L.L.P., 910 Louisiana, Houston,
Texas at 8:00 a.m., New York time, or at such later time on the IPO Pricing Date
as IVT shall specify.
Paragraph 4. MISCELLANEOUS. (A) ENTIRE AGREEMENT; AMENDMENT;
WAIVERS. This Agreement and the documents delivered pursuant hereto constitute
the entire agreement and understanding among the Company, IVT and IVT Sub and
supersede all prior agreements and understandings, both written and oral,
relating to the subject matter of this Agreement. This Agreement may be amended,
modified or supplemented, and any right hereunder may be waived, if, but only
if, that amendment, modification, supplement or waiver is in writing and signed
by the Company and IVT; provided, however, that no such amendment, modification,
supplement or waiver will be effective unless it is signed by each Stockholder
affected thereby to the extent that it (1) reduces the amount, or changes the
components, of the Acquisition Consideration that Stockholder is entitled to
receive pursuant to Paragraph 2 or (2) amends or waives this sentence. The
waiver of any of the terms and conditions hereof shall not be construed or
interpreted as, or deemed to be, a waiver of any other term or condition hereof.
(B) GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF
THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED AND ENFORCED IN ACCORDANCE
WITH THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO THE CONFLICTS
OF LAW PROVISIONS THEREOF.
(C) EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided
herein, no delay or omission in the exercise of any right, power or remedy
accruing to any party hereto as a result of any breach or default hereunder by
any other party hereto shall impair any such right, power or remedy, nor shall
it be construed, deemed or interpreted as a waiver of or acquiescence in any
such breach or default, or of any similar breach or default occurring later; nor
shall any waiver of any single breach or default be construed, deemed or
interpreted as a waiver of any other breach or default hereunder occurring
before or after that waiver.
(D) TIME. Time is of the essence in the performance of this
Agreement in all respects.
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(E) REFORMATION AND SEVERABILITY. If any provision of this Agreement
is invalid, illegal or unenforceable, that provision shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties hereto as expressed
herein, and if such a modification is not possible, that provision shall be
severed from this Agreement, and in either case the validity, legality and
enforceability of the remaining provisions of this Agreement shall not in any
way be affected or impaired thereby.
(F) REMEDIES CUMULATIVE. No right, remedy or election given by any
term of this Agreement shall be deemed exclusive, but each shall be cumulative
with all other rights, remedies and elections available at law or in equity.
Paragraph 5. TERMINATION. (A) TERMINATION OF THIS AGREEMENT.
(1) This Agreement may be terminated at any time prior to the Closing solely:
(a) by the mutual written consent of IVT and the Company; or
(b) unless the IPO has occurred, automatically on the first to occur
of (i) the Abandonment Date or (ii) January 1, 1998; provided, however,
that if January 1, 1998 is the first of those dates to occur, but IVT
theretofore has filed the Registration Statement and is then pursuing the
IPO, this Agreement will continue in full force and effect until the first
to occur of (i) the Abandonment Date, (ii) the date IVT withdraws the
Registration Statement pursuant to Rule 477 under the Securities Act,
(iii) the date the Registration Statement is abandoned pursuant to Rule
479 under the Securities Act or (iv) May 31, 1998 (as used herein,
"Abandonment Date" means the date The Roger L. Miller Family Trust and
Allwaste, Inc. jointly direct IVT to abandon the IPO).
(2) This Agreement may be terminated after the Closing solely:
(a) by IVT or the Company if the Underwriting Agreement is
terminated pursuant to its terms after the Closing and prior to the
consummation of the IPO; or
(b) automatically and without action on the part of any party hereto
if the IPO is not consummated within 15 New York City business days after
the date of the Closing.
(B) LIABILITIES IN EVENT OF TERMINATION. If this Agreement is
terminated pursuant to Paragraph 5(A), there shall be no liability or obligation
on the part of any party hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
INNOVATIVE VALVE TECHNOLOGIES, INC.
By: /s/ CHARLES F. SCHUGART
Charles F. Schugart
Senior Vice President
IVT ACQUISITION, INC.
By: /s/ CHARLES F. SCHUGART
Charles F. Schugart
Vice President
THE SAFE SEAL COMPANY, INC.
By: /s/ CHARLES F. SCHUGART
Charles F. Schugart
Senior Vice President
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SCHEDULE 2(C)
to the
Agreement and Plan of Merger
to which
Innovative Valve Technologies, Inc.
and
The Safe Seal Company, Inc.
are parties
A. Words and terms used in this Schedule which are defined in the
captioned Agreement are used herein as therein defined.
B. The directors of the Surviving Corporation immediately after the
Effective Time are as follows: William E. Haynes.
C. The officers of the Surviving Corporation immediately after the
Effective Time are as follows:
Chief Executive Officer........................... William E. Haynes
President......................................... Kevin M. Stern
Senior Vice President, Treasurer and Secretary.... Charles F. Schugart
Vice President and Corporate Controller........... Douglas R. Harrington, Jr.
End of Schedule
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SCHEDULE 2(D)
to the
Agreement and Plan of Merger
to which
Innovative Valve Technologies, Inc.
and
The Safe Seal Company, Inc.
are parties
A. Words and terms used in this Schedule which are defined in the
captioned Agreement are used herein as therein defined.
B. The following options and warrant to purchase Company Common
Stock from the Company at an exercise price of $5.00 per share which are
outstanding immediately prior to the Effective Time will be converted as a
result of the Merger into options to purchase shares of IVT Common Stock
following the Merger at an initial exercise price of $10.00 per share as
follows:
POST-MERGER
NO. OF SHARES OF NO. OF SHARES OF
OPTION OR WARRANT COMPANY COMMON STOCK IVT COMMON STOCK
HOLDER SUBJECT TO OPTION SUBJECT TO OPTION
- ----------------- -------------------- -----------------
Frank L. Lombard 76,000 38,000
T. Wayne Wren, Jr. 30,000 15,000
Kevin M. Stern 45,760 22,880
John Misitigh 8,078 4,039
Johnny Butler 6,000 3,000
Kevin Carmody 5,760 2,880
William Bigbee 5,040 2,520
Richard McDonald 5,040 2,520
Tom Hemker 4,640 2,320
C. All other options to purchase Company Common Stock from the
Company which are outstanding immediately prior to the Effective Time will be
converted as a result of the Merger into options to purchase the same number of
shares of IVT Common Stock at the same initial exercise prices.
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D. All options to purchase IVT Common Stock will be evidenced by
award agreements subject to the 1997 Incentive Plan of IVT.
End of Schedule
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AMENDMENT TO AGREEMENT AND PLAN OF MERGER
THIS AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this
"Amendment") is made as of August 15, 1997 by and among Innovative Valve
Technologies, Inc., a Delaware corporation ("IVT"), IVT Acquisition, Inc., a
Delaware corporation and a wholly owned subsidiary of IVT ("IVT Sub"), and The
Safe Seal Company, a Texas corporation (the "Company").
PRELIMINARY STATEMENT
IVT, IVT Sub and the Company are parties to that certain Agreement
and Plan of Merger dated as of June 27, 1997 (the "Agreement"). Words and terms
used in this Amendment which are defined in the Agreement are used herein as
therein defined.
With the consent of Allwaste Environmental Services, Inc., a
Delaware corporation and the owner of record of all the outstanding shares of
the Company Preferred Stock, the parties hereto hereby are amending this
Agreement to change the Acquisition Consideration for the Company Preferred
Stock.
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and undertakings contained herein, the parties hereto agree as
follows:
Paragraph 1. Clause (1)(b) of Paragraph 2(D) of the Agreement hereby
is amended to read in its entirety as follows:
(b) the shares of Company Preferred Stock issued and outstanding
immediately prior to the Effective Time will be converted collectively
into the right to receive, subject to the provisions of Paragraph 2(E),
without interest, on surrender of the certificate or certificates
representing those shares, such number of whole shares of IVT Common Stock
as shall most nearly equal, but not exceed, the quotient obtained by
dividing (i) the sum of $2,000,000 plus dividends accrued on the Company
Preferred Stock through the day preceding the day on which the Effective
Time occurs at the rate of $190,000 per annum and which remain unpaid
divided by (ii) the IPO Price;
Paragraph 2. This Amendment shall inure to the benefit of and be
binding upon the heirs, executors, administrators, successors and assigns of
each of the parties.
Paragraph 3. This Amendment may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
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Paragraph 4. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED WHOLLY WITHIN THAT STATE.
Paragraph 5. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions contained herein shall not be in any way impaired
thereby.
Paragraph 6. This Amendment is intended by the parties as a final
expression of their agreement and a complete and exclusive statement of the
agreement and understanding of the parties hereto in respect of the subject
matter contained herein.
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment
as of the date first above written.
INNOVATIVE VALVE TECHNOLOGIES, INC.
By: /s/ CHARLES F. SCHUGART
Charles F. Schugart
Senior Vice President
IVT ACQUISITION, INC.
By: /s/ CHARLES F. SCHUGART
Charles F. Schugart
Senior Vice President
THE SAFE SEAL COMPANY, INC.
By: /s/ CHARLES F. SCHUGART
Charles F. Schugart
Senior Vice President
The undersigned hereby consents to the amendment to the Agreement
being effected by this Amendment.
ALLWASTE ENVIRONMENTAL SERVICES, INC.
By: /s/ Robert M. Chiste
Name: Robert M. Chiste
Title:
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