AGREEMENT AND PLAN OF MERGER
Among
UNIFAB INTERNATIONAL, INC.,
ATI ACQUISITION, L.L.C.
and
ALLEN TANK, INC., VINCENT J. CUEVAS,
WALTER L. HAMPTON, WILLIAM A. HINES,
ALLEN C. PORTER, JR., AND JOSEPH G. WEISBERGER
Dated as of July 24, 1998
TABLE OF CONTENTS
ARTICLE 1. DEFINITIONS 1
Section 1.1 DEFINITIONS 1
ARTICLE 2. THE CLOSING; THE MERGER; EFFECTS OF THE MERGER 6
Section 2.1 CLOSING 6
Section 2.2 THE MERGER 6
Section 2.3 EFFECTS OF THE MERGER; ARTICLES AND OPERATING AGREEMENT;
DIRECTORS AND OFFICERS 6
ARTICLE 3. MERGER CONSIDERATION; CONVERSION OF SHARES 7
Section 3.1 CONVERSION OF SHARES 7
Section 3.2 EXCHANGE OF STOCK CERTIFICATES 7
Section 3.3 NO FURTHER RIGHTS IN ALLEN COMMON STOCK 8
ARTICLE 4. REPRESENTATIONS AND WARRANTIES OF THEALLEN SHAREHOLDERS 8
Section 4.1 OWNERSHIP AND TRANSFER OF SHARES 8
Section 4.2 INVESTMENT REPRESENTATIONS 9
Section 4.3 REPRESENTATION; UNIFAB DISCLOSURE DOCUMENTS 9
Section 4.4 RESTRICTIVE LEGEND 9
Section 4.5 UNIFAB RELIANCE 10
Section 4.6 ORGANIZATION 10
Section 4.7 AFFILIATED ENTITIES 10
Section 4.8 CAPITALIZATION 10
Section 4.9 AUTHORITY; ENFORCEABLE AGREEMENTS 10
Section 4.10 NO CONFLICTS OR CONSENTS 11
Section 4.11 CORPORATE FORMALITIES; CORPORATE DOCUMENTS, SHAREHOLDER
AGREEMENTS AND BOARD OF DIRECTORS 11
Section 4.12 FINANCIAL STATEMENTS; LIABILITIES 12
Section 4.13 ABSENCE OF CERTAIN CHANGES OR EVENTS 12
Section 4.14 CONTRACTS 13
Section 4.15 PROPERTIES AND LEASES 14
Section 4.16 VOTING REQUIREMENTS 15
Section 4.17 SUPPLIERS AND CUSTOMERS 15
Section 4.18 EMPLOYEE MATTERS 15
Section 4.19 EMPLOYEE BENEFIT PLANS 16
Section 4.20 TAX MATTERS 18
Section 4.21 LITIGATION 20
Section 4.22 ENVIRONMENTAL COMPLIANCE 21
Section 4.23 COMPLIANCE WITH LAW; PERMITS 22
Section 4.24 SAFETY AND HEALTH 23
Section 4.25 TRANSACTIONS WITH RELATED PARTIES 23
Section 4.26 BROKER'S AND FINDER'S FEE 23
Section 4.27 MATERIALITY 23
Section 4.28 DISCLOSURE 23
ARTICLE 5. REPRESENTATIONS AND WARRANTIES OF UNIFAB AND SUB 24
Section 5.1 ORGANIZATION 24
Section 5.2 CAPITALIZATION 24
Section 5.3 AUTHORITY; ENFORCEABLE AGREEMENTS 24
Section 5.4 NO CONFLICTS OR CONSENTS 25
Section 5.5 SEC DOCUMENTS; FINANCIAL STATEMENTS; LIABILITIES 25
Section 5.6 LEGALITY OF UNIFAB COMMON STOCK 26
Section 5.7 TAX MATTERS 26
Section 5.8 LITIGATION 28
Section 5.9 COMPLIANCE WITH LAW; PERMITS 28
Section 5.10 BROKER'S AND FINDER'S FEE 28
Section 5.11 DISCLOSURE 29
ARTICLE 5A. REPRESENTATIONS AND WARRANTIES OF THEALLEN SHAREHOLDERS AND
UNIFAB 29
ARTICLE 6. PRE-CLOSING COVENANTS 29
Section 6.1 CONDUCT OF BUSINESS PRIOR TO THE CLOSING DATE 29
Section 6.2 NO SOLICITATIONS 29
Section 6.3 PRESS RELEASES 30
Section 6.4 ACCESS TO INFORMATION AND CONFIDENTIALITY 30
Section 6.5 CONSULTATION AND REPORTING 30
Section 6.6 NOTIFICATION OF CHANGES 31
Section 6.7 SUB MEMBER APPROVAL 31
Section 6.8 ENVIRONMENTAL DUE DILIGENCE 31
ARTICLE 7. POST-CLOSING COVENANTS 31
Section 7.1 RESTRICTIONS ON RESALE 31
Section 7.2 TAX-FREE REORGANIZATION 32
Section 7.3 RELEASE AND INDEMNIFICATION OF WILLIAM A. HINES 32
ARTICLE 8. CLOSING CONDITIONS 32
Section 8.1 CONDITIONS APPLICABLE TO ALL PARTIES 32
Section 8.2 CONDITIONS TO UNIFAB'S OBLIGATIONS 32
Section 8.3 CONDITIONS TO THE OBLIGATIONS OF ALLEN AND THE ALLEN
SHAREHOLDERS 33
Section 8.4 WAIVER OF CONDITIONS 34
ARTICLE 9. SURVIVAL OF REPRESENTATIONS; INDEMNITY 35
Section 9.1 POST-CLOSING REMEDIES 35
Section 9.2 INDEMNIFICATION BY ALLEN SHAREHOLDERS 35
Section 9.3 INDEMNIFICATION BY UNIFAB 35
Section 9.4 PROCEDURES 35
Section 9.5 ESCROW PROCEDURES 36
ARTICLE 10. TERMINATION 38
Section 10.1 TERMINATION 38
Section 10.2 EFFECT OF TERMINATION 38
ARTICLE 11. MISCELLANEOUS 38
Section 11.1 NOTICES 38
Section 11.2 GOVERNING LAW 39
Section 11.3 COUNTERPARTS 39
Section 11.4 INTERPRETATION; SCHEDULES 40
Section 11.5 ENTIRE AGREEMENT; SEVERABILITY 40
Section 11.6 AMENDMENT AND MODIFICATION 40
Section 11.7 EXTENSION; WAIVER 40
Section 11.8 BINDING EFFECT; BENEFITS 41
Section 11.9 ASSIGNABILITY 41
Section 11.10 EXPENSES 41
Section 11.11 GENDER AND CERTAIN DEFINITIONS 41
LIST OF SCHEDULES
LIST OF EXHIBITS
Exhibit 2.1(b) Certificate of Merger
Exhibit 3.2(b) Form of Porter Note
Exhibit 8.2(i) Form of employment agreement (Allen C. Porter, Jr.)
Exhibit 8.2(j) Form of noncompetition agreement
Exhibit 8.2(k) Form of lockup letter agreement
Exhibit 8.2(l) Form of opinion of Simon, Peragine, Smith & Redfearn, LLP
Exhibit 8.3(d) Form of Registration Rights Agreement
Exhibit 8.3(e) Form of opinion of Jones, Walker, Waechter, Poitevent,
Carrere & Denegre, L.L.P.
Exhibit 8.3(h) Form of promissory note
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (the "Agreement") dated as of July
24, 1998 is by and among UNIFAB International, Inc., a Louisiana
corporation ("UNIFAB"), ATI Acquisition, L.L.C., a wholly owned subsidiary
of UNIFAB and a Louisiana limited liability company ("Sub"), Allen Tank,
Inc., a Louisiana corporation ("Allen") and Vincent J. Cuevas, Walter L.
Hampton, William A. Hines, Joseph G. Weisberger (the "Assenting Allen
Shareholders") and Allen C. Porter, Jr. ("Porter") (each of the Assenting
Allen Shareholders and Porter is an "Allen Shareholder" and collectively
they are the "Allen Shareholders").
W I T N E S S E T H :
WHEREAS, the respective Boards of Directors of UNIFAB, Sub and Allen
deem it desirable to merge Allen with and into Sub (the "Merger") with the
result that the corporate existence of Allen shall cease and Sub shall be
the Surviving Entity;
NOW, THEREFORE, in consideration of the representations, warranties
and covenants contained herein, the parties agree as follows:
ARTICLE 1 DEFINITIONS
Section 1.b DEFINITIONS. As used in this Agreement, the following
terms when capitalized have the meanings indicated.
"Affiliate" has the meaning ascribed by Rule 12b-2 promulgated under
the Securities Exchange Act of 1934, as amended (the "Exchange Act").
"Agreement" means this Agreement and Plan of Merger, including the
Schedules and Exhibits hereto, all as amended or otherwise modified from
time to time.
"Allen Audited Financial Statements" means the audited balance sheets
and related statements of income, retained earnings and cash flow, and the
related notes thereto of Allen for the periods ended on the Saturdays
nearest December 31, 1996 and 1997, respectively.
"Allen Common Stock" means the shares of Allen common stock, no par
value per share.
"Allen Financial Statements" means the Allen Audited Financial
Statements and the Allen Interim Financial Statements, collectively.
"Allen Interim Financial Statements" means the unaudited balance
sheet, and the related unaudited statements of income, retained earnings
and cash flows of Allen for the six periods, ended June 13, 1998.
"Allen Latest Balance Sheet" means the latest balance sheet of Allen
included in the Allen Interim Financial Statements.
"Allen Shareholder" and "Allen Shareholders" have the meanings
assigned to them in the Preamble.
"Allen Shareholder Representative" has the meaning assigned to it in
Section 9.5(b).
"Allen Tax Year" means the taxable period beginning December 28, 1997
and ending on the Closing Date.
"Applicable Law" has the meaning assigned to it in Section 4.10(a).
"Assenting Allen Shareholders" has the meaning assigned to it in the
Preamble.
"Benefit Arrangement" means any employment, severance or similar
contract, or any other contract, plan, policy or arrangement (whether or
not written) providing for compensation, bonus, profit-sharing, stock
option or other stock related rights or other forms of incentive or
deferred compensation, vacation benefits, insurance coverage (including any
self-insured arrangement), health or medical benefits, disability benefits,
severance benefits and post-employment or retirement benefits (including
compensation, pension, health, medical or life insurance benefits) that
(a) is maintained, administered or contributed to by the employer or
(b) covers any employee or former employee of the employer.
"Business Day" means a day other than a Saturday, a Sunday or a day on
which national banks or the NASDAQ Stock Market are or is closed.
"Certificate of Merger" has the meaning assigned to it in Section
2.1(b).
"Closing" and "Closing Date" have the meanings assigned to them in
Section 2.1(a).
"Closing Shares" has the meaning assigned to it in Section 3.1(b)(i)
"Code" means the Internal Revenue Code of 1986, as amended.
"Effective Date" has the meaning assigned to it in Section 2.1(b)
hereof.
"Effective Time" has the meaning assigned to it in Section 2.1(b)
hereof.
"Employee Plan" means a plan or arrangement as defined in Section 3(3)
of ERISA, that (a) is subject to any provision of ERISA, (b) is maintained,
administered or contributed to by the employer and (c) covers any employee
or former employee of the employer.
"Environmental Claim" refers to any complaint, summons, citation,
notice, directive, order, claim, litigation, investigation, judicial or
administrative proceeding, judgment, letter or written communication from
any governmental agency, department, bureau, office or other authority, or
any third party arising out of, attributable to, which may accrue out of,
or which may result from (a) a violation or alleged violation of
Environmental Laws; or (b) the presence, Release, or threatened Release of
Hazardous Materials at or from (i) any current or formerly owned or leased
assets, properties, or businesses of any of the parties to this Agreement,
or their predecessors-in-interest; (ii) properties adjoining any current or
formerly owned or leased assets, properties, or businesses of the parties
to this Agreement, or their predecessors-in-interest; or (iii) any facility
to which any Hazardous Materials generated by the parties to this Agreement
or their predecessors-in-interest, have been taken for treatment, storage,
or disposal.
"Environmental Laws" has the meaning assigned to it in Section
4.22(a).
"Environmental Liabilities" means any monetary obligations, losses,
liabilities (including strict liability), damages, punitive damages,
consequential damages, treble damages, costs and expenses (including all
reasonable out-of-pocket fees, disbursements and expenses of counsel, out-
of-pocket expert and consulting fees and out-of-pocket costs for
environmental site assessments, remedial investigations and feasibility
studies), fines, penalties, sanctions and interest incurred as a result of
any Environmental Claim arising out of, attributable to, which may accrue
out of, or which may result from (a) a violation or the alleged violation
of Environmental Laws; (b) a Remedial Action; or (c) a Release or
threatened Release from or onto (i) any property owned or leased by the
respective parties to this Agreement, or their predecessors-in-interest; or
(ii) any facility which received Hazardous Materials generated by the
respective parties to this Agreement, or their predecessors-in-interest.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, and the rules and regulations promulgated thereunder.
"Escrow Cash" has the meaning assigned to it in Section 3.1(c).
"Escrow Shares" has the meaning assigned to it in Section 3.1(b)(ii).
"Escrow Termination Date" has the meaning assigned to it in Section
9.5(d).
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Extended Escrow Termination Date" has the meaning assigned to it in
Section 9.5(e).
"Governmental Entity" has the meaning assigned to it in Section
4.10(b).
"Hazardous Materials" means (a) any element, compound, or chemical
that is defined, listed or otherwise classified as a contaminant,
pollutant, toxic pollutant, toxic or hazardous substance, extremely
hazardous substance or chemical, hazardous waste, medical waste,
biohazardous or infectious waste, special waste, or solid waste under
Environmental Laws; (b) petroleum, petroleum-based or petroleum-derived
products; (c) polychlorinated biphenyls; (d) any substance exhibiting a
hazardous waste characteristic including but not limited to corrosivity,
ignitability, toxicity or reactivity as well as any radioactive or
explosive materials; and (e) any raw materials, building components,
including lead-based paint, asbestos-containing materials and manufactured
products containing Hazardous Materials.
"Indemnified Party" and "Indemnifying Party" have the meanings
assigned to them in Section 9.4(a).
"Indemnity Claim" has the meaning assigned to it in Section 9.4(a).
"Indemnity Value" has the meaning assigned to it in Section 9.3.
"Intellectual Property" has the meaning assigned to it in Section
4.15(e).
"LBCL" means the Louisiana Business Corporation Law, as amended.
"LLCL" means the Louisiana Limited Liability Company Law, as amended.
A "Material Adverse Effect" means a material adverse effect on the
business, financial position, or earnings of such Person or on its ability
to carry out the transactions contemplated hereby.
"Merger Consideration" has the meaning assigned to it in Section
3.1(b).
"Merger Value" has the meaning assigned to it in Section 3.1(c).
"Multiemployer Plan" means a plan or arrangement as defined in Section
4001(a)(3) and 3(37) of ERISA.
"Person" means an individual, firm, corporation, general or limited
partnership, limited liability company, limited liability partnership,
joint venture, trust, governmental authority or body, association,
unincorporated organization or other entity.
"Porter" means Allen C. Porter, Jr.
"Porter Note" has the meaning assigned to it in Section 3.2(b).
"Pre-Closing Period" means any Tax period ending at or before the
Effective Time and, with respect to any Tax period that includes but does
not end at the Effective Time, the portion of such period that ends at and
includes the Effective Time.
"Release" means any release, spill, leak, emission, discharge, pump,
empty, injection, escape, leaching, migration, dumping or disposal of
Hazardous Materials (including the abandonment or discarding of barrels,
containers or other closed receptacles containing Hazardous Materials) into
the environment, or any other means by which a Hazardous Material may be
introduced into the environment.
"Remedial Action" means all actions taken to (i) clean up, remove,
remediate, contain, treat, monitor, assess, evaluate or in any other way
address Hazardous Materials in the indoor or outdoor environment, (ii)
prevent or minimize a Release or threatened Release of Hazardous Materials
so they do not migrate or endanger or threaten to endanger public health or
welfare or the indoor or outdoor environment, (iii) perform post-remedial
operation and maintenance activities, or (iv) any other actions including
any removal, remedial, or other response actions defined in 42 U.S.C.
<section>9601.
"Returns" means all returns, reports, estimates, declarations and
statements of any nature regarding Taxes for any Pre-Closing Period
required to be filed by the taxpayer relating to its income, properties or
operations.
"SEC" means the Securities and Exchange Commission of the United
States.
"Securities Act" means the Securities Act of 1933, as amended.
A "Subsidiary" of any person means another person, an amount of the
voting securities, other voting ownership or voting partnership interests
that is sufficient to elect at least a majority of its Board of Directors
or other governing body of which (or, if there are no such voting
interests, 25% or more of the equity interests of which) is owned directly
or indirectly by such first person.
"Surviving Entity" means Sub following the Effective Time.
"Tax" or "Taxes" means any federal, state, local, foreign or other
taxes (including, without limitation, income, alternative minimum,
franchise, property, sales, use, lease, excise, premium, payroll, wage,
employment or withholding taxes), fees, duties, assessments, withholdings
or governmental charges of any kind whatsoever (including interest,
penalties and additions to tax).
"Tax Deficiencies" is defined in Section 4.20(h).
"Title IV Plan" means an Employee Plan, other than any Multiemployer
Plan, subject to Title IV of ERISA.
"UNIFAB Affiliated Group" means UNIFAB and its Subsidiaries.
"UNIFAB Audited Financial Statements" means the audited balance
sheets, and the related statements of operations, shareholder's equity and
cash flow, and the related notes thereto of UNIFAB for the years ended
March 31, 1996, 1997 and 1998.
"UNIFAB Common Stock" means shares of UNIFAB Common Stock, $.01 par
value.
"UNIFAB Disclosure Documents" has the meaning assigned to it in
Section 4.3.
"UNIFAB Financial Statements" means the UNIFAB Audited Financial
Statements and the UNIFAB Interim Financial Statements.
"UNIFAB Latest Balance Sheet" means the latest balance sheet included
in the UNIFAB Audited Financial Statements.
"UNIFAB Share Issuance" means the issuance of UNIFAB Common Stock to
the Allen shareholders upon consummation of the Merger.
ARTICLE 2 THE CLOSING; THE MERGER; EFFECTS OF THE MERGER
Section 1.b CLOSING. (a) The closing of the transactions
contemplated herein (the "Closing") will take place, assuming satisfaction
or waiver of each of the conditions set forth in Article 8 hereof, at the
offices of Jones, Walker, Waechter, Poitevent, Carr<e`>re & Den<e`>gre,
L.L.P., 201 St. Charles Avenue, New Orleans, Louisiana, at 10:00 A.M.
(Central Time) on July 24, 1998 or such other date as may be mutually
agreed upon between the parties following satisfaction of the latest to
occur of the conditions set forth in Section 8.1, provided, in either case,
that the other conditions set forth in Article 8 shall have been satisfied
or waived as provided in Article 8 at or prior to the Closing (the date of
the Closing being referred to herein as the "Closing Date").
(b) At the Closing, the parties shall (i) deliver the documents,
certificates and opinions required to be delivered by Article 8 hereof,
(ii) provide proof or indication of the satisfaction or waiver of each of
the conditions set forth in Article 8 hereof, (iii) cause the appropriate
merger of Sub to execute and deliver the Certificate of Merger (the
"Certificate of Merger") in accordance with the provisions of the LBCL and
the LLCL and substantially in the form attached as EXHIBIT 2.1(B) hereto,
and (iv) consummate the Merger by causing to be filed such properly
executed Certificate of Merger with the Secretary of State of the State of
Louisiana in accordance with the provisions of the LBCL and the LLCL. The
Merger shall be effective as of the date and time specified in the
Certificate of Merger (such date and time being hereinafter referred to
respectively as the "Effective Date" and the "Effective Time").
Section 2.b THE MERGER. Subject to the terms and conditions of this
Agreement, Allen shall be merged with and into Sub at the Effective Time.
Following the Merger, the separate corporate existence of Allen shall cease
and Sub shall be the Surviving Entity and shall succeed to and assume all
the rights and obligations of Allen in accordance with the LBCL and the
LLCL.
Section 3.b EFFECTS OF THE MERGER; ARTICLES AND OPERATING AGREEMENT;
DIRECTORS AND OFFICERS. (a) The Merger shall have the effects specified
in Sections 115 and 117(G) of the LBCL and Section 1361 of the LLCL.
(b) The articles of Sub in effect at the Effective Time, as
amended in the Certificate of Merger to change the name of Sub to Allen
Tank, L.L.C., shall be the articles of organization of the Surviving Entity
thereafter unless and until amended in accordance with their terms and as
provided by law.
(c) The operating agreement of Sub as in effect at the Effective
Time shall be the operating agreement of the Surviving Entity thereafter
unless and until amended in accordance with its terms, the terms of the
articles of organization of the Surviving Entity and as provided by law.
(d) The managers and officers of Sub at the Effective Time shall
be the managers and officers of the Surviving Entity thereafter, each to
hold office in accordance with the articles of organization and operating
agreement of the Surviving Entity until their respective successors are
duly elected and qualified.
ARTICLE 3 MERGER CONSIDERATION; CONVERSION OF SHARES
Section 1.d CONVERSION OF SHARES. (a) At the Effective Time, by
virtue of the Merger and without any further action on the part of UNIFAB,
Sub, Allen or the Surviving Entity, or any holder of any of the following
securities:
(i) each share of Allen Common Stock issued and outstanding
at the Effective Time (A) held by each Assenting Allen
Shareholder shall be converted into the right to
receive 900 fully paid and nonassessable shares of
UNIFAB Common Stock in the manner described in Section
3.1(b) below (B) held by Porter shall be converted into
the right to receive cash in the manner described in
Section 3.1(c) below; provided that there shall be no
more than 1,000 shares of Allen Common Stock issued and
outstanding immediately prior to the Effective Time;
and
(ii) each issued share of Allen that is held in treasury by
Allen or held by any subsidiary of Allen shall be
canceled and no stock of UNIFAB or other consideration
shall be delivered in exchange therefor.
(b) Upon conversion of his shares of Allen Common Stock into
rights to receive shares of UNIFAB Common Stock in the manner described in
paragraph 3.1(a)(i)(A) above, each Assenting Allen Shareholder shall have
the right (i) to receive a certificate representing the whole number of
shares of UNIFAB Common Stock (the "Closing Shares") equal to 90% of the
product of (A) 900 times (B) the number of issued and outstanding shares
of Allen Common Stock of which he is the record holder immediately prior to
the Effective Time (the product of (A) and (B) being the "Merger
Consideration"), and (ii) to have UNIFAB hold in escrow for the benefit of
such Assenting Allen Shareholder such whole number of UNIFAB Common Stock
(the "Escrow Shares") that is 10% of the Merger Consideration subject to
the terms and conditions set forth in Article 9.
(c) Upon conversion of his Allen Common Stock into the right to
receive cash in the manner described in Section 3.1(a)(i)(B), Porter shall
have the right to receive (i) $1,080,00 at the Closing and (ii) to have
UNIFAB hold $120,000 in escrow for Porter (the "Escrow Cash").
Section 2.b EXCHANGE OF STOCK CERTIFICATES. (a) On the Closing Date,
each Assenting Allen Shareholder whose shares were converted into the
Merger Consideration pursuant to Section 3.1(b) hereof shall surrender such
certificates for cancellation to UNIFAB, together with a duly executed
letter of transmittal in form and substance satisfactory to UNIFAB. Upon
such surrender, (i) UNIFAB shall (A) issue to such Assenting Allen
Shareholder a certificate representing the whole number of Closing Shares
that such Assenting Allen Shareholder has the right to receive pursuant to
the provisions of Section 3.1(b)(i) and (B) hold the Escrow Shares that
such Assenting Allen Shareholder has the right to receive in escrow subject
to the provisions of Section 3.1(b)(ii) in an escrow account pursuant to
the provisions of Article 9 hereof, and (ii) the certificates representing
shares of Allen Common Stock so surrendered shall forthwith be canceled.
(b) On the Closing Date, Porter shall surrender his certificates
of Allen Common Stock to UNIFAB for cancellation, together with a duly
executed letter of transmittal in form and substance satisfactory to
UNIFAB. Upon such surrender, (i) UNIFAB shall (A) remit to Porter
$360,000.00 in cash, (B) execute and deliver two nonnegotiable promissory
notes, each payable to Porter in the principal amount of $360,000.00,
bearing interest at the rate of 9.5% per annum, compounded annually on the
unpaid principal from the Closing Date until paid in full, to be paid in
lump sums, plus accrued interest, on each of the first and second
anniversary of the Closing Date (the "Porter Notes"), and (C) hold the
Escrow Cash in escrow subject to the provisions of Section 3.1(c)(ii) in an
escrow account that bears interest on the balance of Escrow Cash in the
escrow account at the rate of 9.5% per annum, said interest to accrue from
the date hereof, to be calculated as of the last Business Day of every
month until the later of the Escrow Termination Date or the Extended Escrow
Termination Date, and to be credited to and held in the escrow account as
Escrow Cash, pursuant to the provisions of Article 9 hereof, and (ii) the
certificates representing Porter's shares of Allen Common Stock so
surrendered shall forthwith be canceled. The Porter Note shall be
unsecured, and shall be substantially in the form of note attached hereto
as EXHIBIT 3.2(B).
Section 3.b NO FURTHER RIGHTS IN ALLEN COMMON STOCK. As of the
Effective Time, all shares of Allen Common Stock shall no longer be
outstanding and shall automatically be canceled and retired and shall cease
to exist, and each holder of a certificate representing shares of Allen
Common Stock as of the Effective Time shall cease to have any rights with
respect thereto, except the right to receive the Merger Consideration or
Total Payment, as the case may be, of such certificate as provided in
Section 3.2.
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF THE
ALLEN SHAREHOLDERS
Each Allen Shareholder represents and warrants to and agrees with
UNIFAB and Sub, as of the date hereof, as follows:
Section 1.b OWNERSHIP AND TRANSFER OF SHARES. (a) He is the lawful
owner of the number of shares of Allen Common Stock listed opposite his
name in SCHEDULE 4.8 hereto, free and clear of all Liens, encumbrances,
restrictions and claims of every kind; (b) he has the absolute legal right,
power and authority to enter into this Agreement and to sell, assign,
transfer, convey and deliver the shares of Allen Common Stock so owned
pursuant to this Agreement; (c) he is not a party to any option, warrant,
purchase right or other contract or commitment that could require him to
sell, transfer, or otherwise dispose of any capital stock of Allen (other
than this Agreement); (d) he is not a party to any voting trust, proxy or
other agreement or understanding with respect to the voting of any capital
stock of Allen; and (e) at the Effective Time, UNIFAB shall obtain and be
fully vested in record and beneficial ownership of all shares of capital
stock of Allen listed opposite his name in SCHEDULE 4.8 hereto, after
giving effect to the Merger, free and clear of any restrictions on transfer
(other than restrictions under the Securities Act and state securities
laws), Taxes, security interests, options, warrants, purchase rights,
contracts, commitments, equities, claims and demands.
Section 2.b INVESTMENT REPRESENTATIONS. (a) Each Allen Shareholder
other than Porter is acquiring shares of UNIFAB Common Stock pursuant
hereto for investment for his own account and has no present intention of
reselling or otherwise distributing or participating in a distribution of
such shares; (b) he understands that such shares will not be registered
under the Securities Act, that such shares will be "restricted securities"
as that term is used in Rule 144 of the SEC under the Securities Act ("Rule
144") and that such shares may not be transferred unless they are
subsequently registered under the Securities Act and under any applicable
state securities law or are transferred in a transfer that is exempt from
such registration; (c) except as otherwise contemplated by Section 8.3(e),
UNIFAB is not obligated by this Agreement to register such shares under the
Securities Act or under any such state laws and UNIFAB will, as a condition
to the transfer of any such shares, require that the request for transfer
be accompanied by an opinion of counsel, in form and substance satisfactory
to UNIFAB, to the effect that the proposed transfer does not result in a
violation of the Securities Act or any applicable state securities law,
unless such transfer is covered by an effective registration statement; and
(d) such shares of UNIFAB Common Stock may not be sold publicly in reliance
on the exemption from registration under the Securities Act afforded by
Rule 144 unless and until the minimum holding period (currently one year)
and other requirements of Rule 144 have been satisfied.
Section 3.b REPRESENTATION; UNIFAB DISCLOSURE DOCUMENTS. Each Allen
Shareholder, together with the other Allen Shareholders, has been
represented by competent and experienced legal counsel in connection with
the negotiation and execution of this agreement, has been granted the
opportunity to make a thorough investigation of and to obtain information
with respect to the business and affairs of UNIFAB, and has availed himself
of such opportunity either directly or through legal counsel and other
authorized representatives. Each Shareholder acknowledges that he has
received from UNIFAB and has reviewed with his representatives a copy of
each of the following documents (the "UNIFAB Disclosure Documents"):
UNIFAB's prospectus dated September 18, 1997 relating to 2,815,000 shares
of UNIFAB International, Inc. Common Stock; UNIFAB's reports to the
Securities and Exchange Commission on Form 10-Q for the quarters ended
September 30, 1997 and December 31, 1997; UNIFAB's report on Form 8-K/A-1
dated February 5, 1998 relating to UNIFAB's acquisition of Professional
Industrial Maintenance, LLC; and UNIFAB's press release dated May 18, 1998
relating to UNIFAB's earnings for the year and fourth quarter ended March
31, 1998 and UNIFAB's Form 10-K for the fiscal year ended March 31, 1998.
Each Shareholder acknowledges that he has received and reviewed, with
adequate time to do so, this Agreement, the UNIFAB Disclosure Documents,
and such additional information with respect to UNIFAB and the transactions
contemplated by this Agreement as he or his representatives have requested.
Section 4.b RESTRICTIVE LEGEND. Each Allen Shareholder understands
and agrees that all certificates evidencing shares of UNIFAB Common Stock
to be issued to him hereunder will bear restrictive legends in
substantially the following form:
The Securities represented by this certificate have not been
registered under the Securities Act of 1933, as amended (the
"Act"), or any applicable state law, and may not be transferred
without registration under the Act and any such state law or an
opinion of counsel satisfactory to the issuer of such securities
that registration is not required.
Section 5.b UNIFAB RELIANCE. Each Allen Shareholder understands that
UNIFAB in issuing the shares of UNIFAB Common Stock pursuant to this
Agreement is relying upon, among other things, the representations,
warranties and agreements contained in this Article in concluding that such
issuance does not require compliance with the registration requirements of
the Securities Act.
Section 6.b ORGANIZATION. Allen is a corporation duly organized,
validly existing and in good standing under the laws of the State of
Louisiana and has all corporate power and authority to carry on its
business as now being conducted and to own its properties. Allen is duly
qualified to do business and is in good standing in each state and foreign
jurisdiction in which the character or location of the properties owned or
leased by it or the nature of the business conducted by it makes such
qualification necessary, except those jurisdictions, if any, in which the
failure to be so qualified would not have, in the aggregate for all such
jurisdictions, a Material Adverse Effect; provided, however, that no Allen
Shareholder shall be deemed in breach of this representation with respect
to any such failure if the Allen Shareholders indemnify and hold harmless
UNIFAB against any loss arising out of such failure.
Section 7.b AFFILIATED ENTITIES. Allen does not, directly or
indirectly, own of record or beneficially, or have the right or obligation
to acquire, any outstanding securities or other interest in any
corporation, partnership, joint venture or other entity.
Section 8.b CAPITALIZATION. The authorized capital stock of Allen
consists exclusively of 1,000 shares of common stock, no par value per
share, of which 1,000 shares are issued and outstanding and held by the
Allen Shareholders in the respective amounts set forth on SCHEDULE 4.8, and
- -0- shares are held in its treasury. All of such issued and outstanding
shares have been validly issued, are fully paid and nonassessable and were
issued in compliance with any rights of first refusal, in compliance with
all legal requirements and, except as set forth in SCHEDULE 4.8, free of
preemptive rights. No share of capital stock of Allen has been, or may be
required to be, reacquired by Allen for any reason or is, or may be
required to be, issued by Allen for any reason, including, without
limitation, by reason of any option, warrant, security or right convertible
into or exchangeable for such shares, or any agreement to issue any of the
foregoing. No shares of Allen Common Stock have been issued to or held by
any person who is not an Allen Shareholder.
Section 9.b AUTHORITY; ENFORCEABLE AGREEMENTS. (a) Allen has the
requisite corporate power and authority to enter into this Agreement and to
consummate the transactions described herein. The execution and delivery
of this Agreement by Allen and the consummation by Allen of the
transactions described herein have been duly authorized by all necessary
corporate action on the part of Allen, including without limitation
approval of this Agreement by Allen's Board of Directors in accordance with
Section 112 of the LBCL, the approval thereof by the Allen Shareholders
being evidenced by their execution of this Agreement.
(b) This Agreement has been duly executed and delivered by Allen
and its shareholders, and constitutes a valid and binding obligation of
Allen, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable
principles. The other agreements entered, or to be entered, into by Allen
in connection with this Agreement have been, or will be, duly executed and
delivered by Allen, and constitute, or will constitute, valid and binding
obligations of Allen, enforceable in accordance with their terms, except as
such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally or by
general equitable principles.
Section 10.b NO CONFLICTS OR CONSENTS. (a) Except as set forth on
SCHEDULE 4.10(A), neither the execution, delivery or performance of this
Agreement by Allen nor the consummation of the transactions contemplated
hereby will violate, conflict with, or result in a breach of any provision
of, constitute a default (or an event that, with notice or lapse of time or
both, would constitute a default) under, result in the termination of, or
accelerate the performance required by, or result in the creation of any
adverse claim against any of the properties or assets of Allen under, (i)
the articles of incorporation, by-laws or any other organizational
documents of Allen, (ii) any note, bond, mortgage, indenture, deed of
trust, lease, license, agreement or other instrument or obligation to which
Allen is a party, or by which Allen or any of its assets are bound, or
(iii) any order, writ, injunction, decree, judgment, statute, rule or
regulation of any governmental body to which Allen is subject or by which
Allen or any of its assets are bound (an "Applicable Law") which would,
individually or in the aggregate, have a Material Adverse Effect.
(b) No consent or approval of, any court, commission,
governmental body, regulatory agency, authority, political subdivision or
tribunal (a "Governmental Entity") is required by or with respect to Allen
or any Allen Shareholder in connection with the execution and delivery of
this Agreement by Allen, or is necessary for the consummation of the Merger
and the other transactions contemplated by this Agreement, except for: (i)
the filing and recordation requirements of the LBCL with respect to the
Certificate of Merger and the filing of appropriate documents with the
relevant authorities of other states in which Allen is qualified to do
business, and (ii) such other consents, orders, authorizations,
registrations, declarations and filings the failure of which to obtain or
make would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on Allen and would not materially impair the
ability of Allen to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
Section 11.b CORPORATE FORMALITIES; CORPORATE DOCUMENTS, SHAREHOLDER
AGREEMENTS AND BOARD OF DIRECTORS. (a) Allen has maintained its separate
corporate existence, has substantially complied with all necessary
corporate formalities, has not commingled funds with any other Person, and
has substantially complied with all other similar requirements so as to
maintain its separate existence in any action asserting that Allen is the
alter ego of any Person, for piercing of the corporate veil or for any
other similar action.
(b) Allen has delivered to UNIFAB true and complete copies of
its articles of incorporation and by-laws, as amended or restated through
the date of this Agreement. The minute books of Allen contain
substantially complete and accurate records of all corporate actions of
Allen's equity owners and board of directors, including committees of such
boards. The stock transfer records of Allen contain complete and accurate
records of all issuances, and redemptions of stock by Allen. There are no
agreements among or between any shareholders with respect to the capital
stock of Allen.
Section 12.b FINANCIAL STATEMENTS; LIABILITIES. (a) The Allen
Audited Financial Statements have been audited by LaPorte, Shert, Romig &
Hand, independent accountants, in accordance with generally accepted
auditing standards, have been prepared in accordance with generally
accepted accounting principles consistently applied during the periods
involved, except as may be noted therein and present fairly the financial
position of Allen as of such dates, the results of operations and cash flow
of Allen for the periods set forth therein (except, in the case of the
Allen Interim Financial Statements, to normal year-end audit adjustments
which would not be material in amount or effect). Except as and to the
extent set forth on the Latest Allen Balance Sheet, including all notes
thereto, Allen does not have any material liability or obligation of any
nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet of
Allen or in the notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied, except liabilities
arising since the date of the Allen Latest Balance Sheet and as permitted
by this Agreement and that are not material individually or in the
aggregate.
(b) The Allen Latest Balance Sheet includes appropriate reserves
for all Taxes and other liabilities incurred as of such date but not yet
payable.
(c) Since the date of the Allen Latest Balance Sheet, there has
been no change that has had or is likely to have a Material Adverse Effect
on Allen.
(d) The statements of income included in the Allen Financial
Statements do not contain any income or revenue realized from products or
services that the Surviving Entity would be prohibited or restricted from
offering after the Effective Time pursuant to any covenant or provision in
any material contract to which Allen is a party.
Section 13.d ABSENCE OF CERTAIN CHANGES OR EVENTS. Since the date of
the Allen Latest Balance Sheet, Allen has conducted its business only in
the ordinary course consistent with its prior practice, and, except as set
forth in SCHEDULE 4.13, has not:
(a) amended its articles of incorporation, by-laws or similar
organizational documents;
(b) except as otherwise contemplated in Section 8.2(e), incurred
any liability or obligation of any nature (whether absolute or contingent,
accrued, fixed, known, unknown, matured or unmatured), except in the
ordinary course of business consistent with its prior practice, exceeding
$10,000 individually or $50,000 in the aggregate;
(c) suffered or permitted any of its assets to become subject to
any mortgage or other encumbrance;
(d) merged or consolidated with another entity or acquired or
agreed to acquire any business or any corporation, partnership or other
business organization, or sold, leased, transferred or otherwise disposed
of any assets except for fair value in the ordinary course of business;
(e) except as otherwise contemplated in Section 8.2(e), made any
capital expenditure or commitment therefor, except in the ordinary course
of business consistent with its prior practice, exceeding $10,000
individually or $50,000 in the aggregate;
(f) declared or paid any dividend or made any distribution with
respect to any of its equity interests, or redeemed, purchased or otherwise
acquired any of its equity interests, or issued, sold or granted any equity
interests or any option, warrant or other right to purchase or acquire any
such interest;
(g) adopted any employee benefit plan or made any change in any
existing employee benefit plans or made any bonus or profit sharing
distribution or payment of any kind;
(h) increased indebtedness for borrowed money, or made any loan
to any Person;
(i) made any change affecting any banking, safe deposit or power
of attorney arrangements;
(j) entered into or amended any employment, severance or similar
agreement or arrangement with any director or employee, or granted any
increase in the rate of wages, salaries, bonuses or other compensation or
benefits of any executive or other employee;
(k) canceled, waived, released or otherwise compromised any
debt, claim or right;
(l) made any change in any method of accounting or auditing
practice;
(m) suffered the termination, suspension or revocation of any
material license or permit necessary for the operation of its business;
(n) entered into any material transaction other than on an
arm's-length basis;
(o) agreed, whether or not in writing, to do any of the
foregoing; or
(p) suffered any damage, destruction or loss (whether or not
covered by insurance) which has had or could have a Material Adverse Effect
on Allen.
Section 14.p CONTRACTS. Except as may be set forth on SCHEDULE 4.14,
Allen is not a party to: (i) any collective bargaining agreement; (ii) any
written or oral employment or other agreement or contract with or
commitment to any employee; (iii) any agreement, contract or commitment
containing any covenant limiting its freedom to engage in any line of
business or to compete with any Person; (iv) any oral or written obligation
of guaranty or indemnification arising from any agreement, contract or
commitment, except as provided in its articles of incorporation or by-laws;
(v) any joint venture, partnership or similar contract involving a sharing
of profits or expenses; (vi) any non-disclosure agreement, non-competition
agreement, agreement with any person who is or was an officer, director or
employee of Allen, tax indemnity, tax sharing or tax allocation agreement,
or severance, bonus or commission agreement; (vii) any indenture, mortgage,
loan, credit, sale-leaseback or similar contract under which Allen has
borrowed any money or issued any note, bond or other evidence of
indebtedness for borrowed money or guaranteed indebtedness for money
borrowed by others; or (viii) any hedge, swap, exchange, futures or similar
agreements or contracts.
Section 15.a PROPERTIES AND LEASES. (a) Allen owns no real
(immovable) property. Allen has, except with respect to assets disposed of
for adequate consideration in the ordinary course of business, consistent
with its prior practices (none of which is material to the operations of
its business), good and merchantable title to all other properties and
assets reflected in the Allen Latest Balance Sheet free and clear of all
pledges, liens, defects, leases, licenses, equities, conditional sales
contracts, charges, claims, encumbrances, security interests, easements,
restrictions, chattel mortgages, mortgages or deeds of trust (collectively,
"Liens"), except for (i) Liens that secure indebtedness that is properly
reflected in the Allen Latest Balance Sheet, (ii) Liens for Taxes accrued
but not yet payable; and (iii) mechanic's, worker's, materialmen's,
operator's or other Liens arising as a matter of law in the ordinary course
of business with respect to obligations incurred after the date of the
Allen Latest Balance Sheet, provided that the obligations secured by such
Liens are not delinquent. Allen owns, or has valid leasehold interests in,
all properties and assets used in the conduct of its business.
(b) With respect to each lease of any real (immovable) property
or any material personal (movable) property to which Allen is a party, (i)
Allen has a valid leasehold interest in such property, (ii) such lease is
in full force and effect in accordance with its terms; (iii) all rents and
other monetary amounts that have become due and payable thereunder have
been paid in full; (iv) no waiver, indulgence or postponement of the
obligations thereunder has been granted by the other party thereto; (v)
there exists no material default (or an event that, with notice or lapse of
time or both would constitute a default) under such lease; (vi) Allen has
not violated any of the terms or conditions under any such lease and no
Allen Shareholder has knowledge, that (A) any condition or covenant to be
observed or performed by any other party under any such lease has not been
fully observed and performed and (B) in the case of each prime lease
concerning demised premises subleased to Allen, any condition or covenant
to be observed or performed by each party thereto has not been fully
observed and performed or that there exists any event of default or event,
occurrence, condition or act that, with the giving of notice, the lapse of
time or the happening of any further event or condition, would become a
default under any such prime lease; and (vii) the transactions described in
this Agreement will not constitute a default under or cause for termination
or modification of such lease.
(c) Each building and premises owned or leased by Allen is in a
state of good maintenance and repair (ordinary wear and tear excepted) and
is adequate for the purposes for which it is currently used.
(d) The only lease between Allen and any Affiliate of Allen is a
month-to-month lease, cancelable by Allen on not more than 30 days notice,
pursuant to which Allen pays $17,000 per month to lease three offices
located at Suite 300, 3636 North Causeway Boulevard, Metairie, Louisiana
70002, and receives certain administrative services with respect thereto.
(e) SCHEDULE 4.15(E) hereto contains an accurate and complete
list of all material domestic and foreign letters patent, patents, patent
applications, patent license, software licenses, know-how licenses, trade
names, trademarks, copyrights, unpatented inventions, service marks,
trademark registrations and applications, service mark registrations and
applications and copyright registrations and applications owned or used by
Allen in the operation of its business (collectively the "Intellectual
Property"). No Allen Shareholder, except as stated in SCHEDULE 4.15(E),
knows of any adverse claims affecting or with respect to the Intellectual
Property. SCHEDULE 4.15(E) lists all notices or claims currently pending
or received by Allen of any domestic or foreign letters patent, patent
licenses and know-how licenses, trade marks, copyrights, copyright
registrations, trade secrets or other confidential proprietary information.
Except as set forth in SCHEDULE 4.15(E) hereto, no Allen Shareholder knows
of any reasonable basis upon which a claim may be asserted against Allen
for infringement or breach of any domestic or foreign letters patent,
patents, patent licenses and know-how licenses, trade names, trademark
registrations, common law trademarks, service marks, copyrights, copyright
registrations, trade secrets or other confidential proprietary information.
No Allen Shareholder has knowledge, except as indicated on SCHEDULE
4.15(E), that any Person is infringing the Intellectual Property. Each
material item of Intellectual property owned or used by Allen or its
Affiliates immediately prior to the Effective Time hereunder will be owned
or available for use by the Surviving Corporation on identical terms and
conditions immediately subsequent to the Effective Time hereunder.
Section 16.d VOTING REQUIREMENTS. The affirmative vote of the holders
of the outstanding shares of Allen Common Stock entitled to vote on the
Merger is the only vote of the holders of any class or series of Allen's
capital stock necessary to approve this Agreement and the transactions
described herein.
Section 17.d SUPPLIERS AND CUSTOMERS. No Allen Shareholder has actual
knowledge that (a) any supplier providing products, materials or services
to Allen intends to cease selling such products, materials or services to
Allen or to limit or reduce such sales to Allen or materially alter the
terms or conditions of any such sales, or (b) any customer of Allen will
terminate, limit or reduce its business relations with Allen.
Section 18.d EMPLOYEE MATTERS. (a) SCHEDULE 4.18(A) sets forth the
name, title, current annual compensation rate (including bonus and
commissions), current base salary rate, accrued bonus, accrued sick leave,
accrued severance pay and accrued vacation benefits of each officer of
Allen; organizational charts; employment, consulting, employee
confidentiality non-competition and similar agreements; any employee
handbook(s); and any reports and/or plans prepared or adopted pursuant to
the Equal Employment Opportunity Act of 1972, as amended or Executive Order
No. 11246.
(b) Each of the following is true:
(i) Allen is in substantial compliance with all applicable
laws respecting employment and employment practices, terms and conditions
of employment, wages and hours and occupational safety and health, and is
not engaged in any unfair labor practice within the meaning of Section 9 of
the National Labor Relations Act, and there is no proceeding pending or
threatened, or, any investigation pending or threatened against it relating
to any thereof, and no Allen Shareholder has any knowledge of any basis for
any such proceeding or investigation;
(ii) none of the employees of Allen is a member of, or
represented by, any labor union and there are no efforts being made to
unionize any of such employees; and
(iii) there are no charges or formal complaints of, or
proceedings involving, discrimination or harassment (including but not
limited to discrimination or harassment based upon sex, age, marital
status, race, religion, color, creed, national origin, sexual preference,
handicap or veteran status) pending or threatened and no Allen Shareholder
has knowledge of any informal or internal complaints thereof, nor is there
any investigation thereof pending, including, but not limited to,
investigations before the Equal Employment Opportunity Commission or any
federal, state or local agency or court, with respect to Allen, and no
Allen Shareholder has knowledge of any such investigation that is
threatened.
Section 19.b EMPLOYEE BENEFIT PLANS.
(a) SCHEDULE 4.19(A) lists each Employee Plan that Allen
maintains, administers, contributes to, or has any contingent liability
with respect thereto. Allen has provided a true and complete copy of each
such Plan, current summary plan description, (and, if applicable, related
trust documents) and all amendments thereto and written interpretations
thereof together with (i) the three most recent annual reports prepared in
connection with each such Employee Plan (Form 5500 including, if
applicable, Schedule B thereto); (ii) the most recent actuarial report, if
any, and trust reports prepared in connection with each Employee Plan;
(iii) all material communications received from or sent to the Internal
Revenue Service ("IRS") or the Department of Labor within the last two
years (including a written description of any oral communications);
(iv) the most recent IRS determination letter with respect to each Employee
Plan and the most recent application for a determination letter; (v) all
insurance contracts or other funding arrangements; (vi) an actuarial study
of any post-employment life or medical benefits provided, if any; and (vii)
a five-year contribution history indicating the dollar amount contributed
and the level of contribution as a percentage of compensation of covered
participants for each profit sharing plan, stock bonus plan or other
retirement plan to which Allen makes discretionary contributions.
(b) SCHEDULE 4.19(B) identifies each Benefit Arrangement that
Allen maintains, administers, contributes to, or has any contingent
liability with respect thereto. Allen has furnished to UNIFAB copies or
descriptions of each Benefit Arrangement and any of the information set
forth in Section 4.19(a) applicable to any such Benefit Arrangement. Each
Benefit Arrangement has been maintained and administered in substantial
compliance with its terms and with the requirements (including reporting
requirements) prescribed by any and all statutes, orders, rules and
regulations which are applicable to such Benefit Arrangement.
(c) Benefits under any Employee Plan or Benefit Arrangement are
as represented in said documents and have not been increased or modified
(whether written or not written) subsequent to the dates of such documents.
Allen has not communicated to any employee or former employee any intention
or commitment to modify any Employee Plan or Benefit Arrangement or to
establish or implement any other employee or retiree benefit or
compensation arrangement.
(d) No Employee Plan is (i) a Multiemployer Plan, (ii) a Title
IV Plan or (iii) is maintained in connection with any trust described in
Section 501(c)(9) of the Code. Allen has never maintained or become
obligated to contribute to any employee benefit plan (i) that is subject to
Title IV of ERISA, (ii) to which Section 412 of the Code applies, or
(iii) that is a Multiemployer Plan. Allen has not within the last five
years engaged in, or is not a successor corporation to an entity that has
engaged in, a transaction described in Section 4069 of ERISA.
(e) Each Employee Plan which is intended to be qualified under
Section 401(a) of the Code is so qualified and has been so qualified during
the period from its adoption to date, and no event has occurred since such
adoption that would adversely affect such qualification and each trust
created in connection with each such Employee Plan forming a part thereof
is exempt from tax pursuant to Section 501(a) of the Code. A favorable
determination letter has been issued by the IRS as to the qualification of
each such Employee Plan under the Code and to the effect that each such
trust is exempt from taxation under Section 501(a) of the Code. Each
Employee Plan has been maintained and administered in compliance with its
terms and with the requirements (including reporting requirements)
prescribed by any and all applicable statutes, orders, rules and
regulations, including but not limited to ERISA and the Code.
(f) Neither Allen nor any trade or business under common control
with Allen within the meaning of Section 414(b) or (c) of the Code prior to
the Closing Date maintains any controlled group plan or other plan which is
subject to Title IV of ERISA or subject to Section 412 of the Code or Part
3 of Subtitle B of Title I of ERISA.
(g) Full payment has been made of all amounts which Allen is or
has been required to have paid as contributions to or benefits due under
any Employee Plan or Benefit Arrangement under applicable law or under the
terms of any such plan or any arrangement.
(h) Neither Allen, nor any of its directors, officers or
employees has engaged in any transaction with respect to an Employee Plan
that could subject Allen to a tax, penalty or liability for a prohibited
transaction, as defined in Section 406 of ERISA or Section 4975 of the
Code. None of the assets of any Employee Plan are invested in employer
securities or employer real property.
(i) No Allen Shareholder has knowledge of facts or circumstances
that might give rise to any liability under Title I of ERISA.
(j) Except as disclosed on SCHEDULE 4.19(J), there is no
litigation, administrative or arbitration proceeding or other dispute
pending or threatened that involves any Employee Plan or Benefit
Arrangement which could reasonably be expected to result in a liability to
the Allen or the Surviving Entity.
(k) No employee or former employee of Allen will become entitled
to any bonus, retirement, severance, job security or similar benefit or
enhanced benefit (including acceleration of an award, vesting or exercise
of an incentive award) or any fee or payment of any kind solely as a result
of any of the transactions contemplated hereby, except as disclosed on
SCHEDULE 4.19(K) and no such disclosed payment constitutes a parachute
payment described in Section 280G of the Code.
(l) All group health plans of Allen have at all times fully
complied with all applicable notification and continuation coverage
requirements of Section 4980B(f) of the Code and Section 601 of ERISA, and
the regulations promulgated thereunder. Allen does not have any current or
projected liability in respect of post-retirement or post-employment
welfare benefits for retired, current or former employees, or for any
shareholder or director who is not an employee, former employee or
beneficiary thereof, except to the extent otherwise required by the
continuation requirements of Section 4980B(f) of the Code and Section 601
of ERISA.
(m) All group health plans (within the meaning of Section
5000(b)(1) of the Code) of Allen have at all times fully complied in all
material respects with, and has been maintained and operated in all
material respects in accordance with each of the health care
requirements relating to portability, access, and renewability
requirements of Sections 9801 through 9803 of the Code and Part 7 of
Title I, Subtitle B of ERISA and the regulations promulgated thereunder.
(n) All group health plans (within the meaning of Section
5000(b)(1) of the Code) of Allen have at all times fully complied in all
material respects with, and has been maintained and operated in all
material respects in accordance with each of the health care
requirements relating to the benefits for mothers and newborns under
Section 9811 of the Code and Section 711 of ERISA and the regulations
promulgated thereunder.
(o) All group health plans (within the meaning of Section
5000(b)(1) of the Code) of Allen have at all times fully complied in all
material respects with, and has been maintained and operated in all
material respects in accordance with each of the health care
requirements relating to the parity provisions applicable to mental
health benefits under Section 9812 of the Code and Section 712 of ERISA
and the regulations promulgated thereunder.
(p) No employee or former employee, officer or director of Allen
is or will become entitled to receive any award under Allen's discretionary
or other bonus plans except for amounts reflected on the Allen Latest
Balance Sheet.
Section 20.p TAX MATTERS. Each of the following is true with respect
to Allen:
(a) all Returns have been or will be timely filed by Allen when
due in accordance with all applicable laws; all Taxes shown on the Returns
have been or will be timely paid when due; the Returns have been properly
completed in compliance with all applicable laws and regulations and
completely and accurately reflected the facts regarding the income,
expenses, properties, business and operations required to be shown thereon;
the Returns are not subject to penalties under Section 6662 of the Code (or
any corresponding provision of state, local or foreign tax law);
(b) Allen has paid all Taxes required to be paid by it (whether
or not shown on a Return) or for which it could be liable, whether to
taxing authorities or to other persons under tax allocation agreements or
otherwise, and the charges, accruals, and reserves for Taxes due, or
accrued but not yet due, relating to its income, properties, transactions
or operations for any Pre-Closing Period as reflected on its books
(including, without limitation, the Allen Latest Balance Sheet) are
adequate to cover such Taxes;
(c) there are no agreements or consents currently in effect for
the extension or waiver of the time (A) to file any Return or (B) for
assessment or collection of any Taxes relating to the income, properties or
operations of Allen for any Pre-Closing Period, and Allen has not been
requested to enter into any such agreement or consent;
(d) there are no Liens for Taxes (other than for current Taxes
not yet due and payable) upon the assets of Allen;
(e) all material elections with respect to Taxes affecting Allen
are set forth in SCHEDULE 4.20(E);
(f) all Taxes that Allen is required by law to withhold or
collect have been duly withheld or collected, and have been timely paid
over to the appropriate governmental authorities to the extent due and
payable;
(g) SCHEDULE 4.20(G) hereto sets forth (A) the taxable years of
Allen as to which the respective statutes of limitations with respect to
Taxes have not expired, and (B) with respect to such taxable years sets
forth those years for which examinations have not been completed, those
years for which examinations are currently being conducted, those years for
which examinations have not been initiated, and those years for which
required Returns have not yet been filed. SCHEDULE 4.20(G) lists each
state and foreign jurisdiction in which Allen has, in the last three years,
filed a Return, and no Return is required for any other state or foreign
jurisdiction;
(h) all tax deficiencies which have been asserted or, to the
knowledge of any of the Allen Shareholders, claimed or proposed against
Allen ("Tax Deficiencies") have been fully paid or finally settled, and no
issue has been raised in any examination which, by application of similar
principles, can be expected to result in the proposal or assertion of a Tax
Deficiency for any other year not so examined;
(i) No Allen Shareholder knows of facts that would constitute
the basis for the proposal or assertion of any Tax Deficiencies for any
unexamined year or for the recharacterization of any item of income,
expense or deduction set forth on the Returns, and Allen has complied in
all material respects with all applicable Tax laws;
(j) Allen is not a party to any agreement, contract, arrangement
or plan that would result, separately or in the aggregate, in the payment
of any "excess parachute payments" within the meaning of Code Section 280G
(or any comparable provision of state or local law);
(k) Allen has not agreed, nor is it required, to make any
adjustment under Code Section 481(a) (or any comparable provision of state
or local law) by reason of a change in accounting method or otherwise;
(l) Allen has not filed a consent pursuant to the collapsible
corporation provisions of Section 341(f) of the Code (or any corresponding
provision of state, local or foreign income law) or agreed to have Section
341(f)(2) of the Code (or any corresponding provision of state, local or
foreign income law) apply to any disposition of any asset owned by it;
(m) none of the assets of Allen is property that it is required
to treat as being owned by any other person pursuant to the so-called "safe
harbor lease" provisions of former Section 168(f)(8) of the Code;
(n) none of the assets of Allen directly or indirectly secures
any debt, the interest on which is tax exempt under Section 103(a) of the
Code;
(o) none of the assets of Allen is "tax-exempt use property"
within the meaning of Section 168(h) of the Code;
(p) Allen has not made a deemed dividend election under former
Section 1.1502-32(f)(2) of the Treasury Regulations or a consent dividend
election under Section 565 of the Code;
(q) Allen has never been a member of an affiliated group filing
consolidated returns other than a group of which Allen is the parent
corporation;
(r) there are no outstanding balances of deferred gain or loss
accounts related to deferred intercompany transactions with respect to
Allen under Sections 1.1502-13 or 1.1502-14 of the Treasury Regulations;
and
(s) Allen is not (nor has ever been) a party to any tax sharing
agreement, has not assumed the liability of any other person under contract
and does not have any liability under Section 1.1502-6 of the Treasury
Regulations or analogous state, local or foreign law.
Section 21.s LITIGATION. Except as disclosed on SCHEDULE 4.21, there
are no actions, suits, proceedings, arbitrations or investigations pending
or, to the knowledge of any of the Allen Shareholders, threatened before
any court, any governmental agency or instrumentality or any arbitration
panel, against or affecting Allen or its directors, officers, or employees,
and no Allen Shareholder knows of any basis therefor. Allen is not subject
to any currently pending judgment, order or decree entered in any lawsuit
or proceeding.
Section 22.s ENVIRONMENTAL COMPLIANCE. (a) To the knowledge of each
Allen Shareholder, Allen possesses all necessary licenses, permits and
other approvals and authorizations that are required under, and is, and at
all times has been, in material compliance with such licenses, permits and
other approvals and authorizations and is, and at all times has been, in
material compliance with, all federal, state, local and foreign laws,
common law duties, ordinances, codes and regulations relating to pollution
or the protection of the environment (collectively, "Environmental Laws"),
including without limitation all Environmental Laws governing the
generation, use, collection, treatment, storage, transportation, recovery,
removal, discharge, manufacture, processing, distribution, handling or
disposal of hazardous substances or wastes, and all Environmental Laws
imposing record-keeping, maintenance, testing, inspection, notification and
reporting requirements with respect to hazardous substances or wastes. For
purposes of this Agreement, "hazardous substances" and "hazardous wastes"
are materials defined as "hazardous substances," "hazardous wastes,"
"hazardous constituents," "toxic substances," or " radioactive materials"
in (i) the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, 42 U.S.C. Sections 9601-9675, as amended by the Superfund
Amendments and Reauthorization Act of 1986, and any amendments thereto and
regulations thereunder; (ii) the Resource Conservation and Recovery Act of
1976, 42 U.S.C. Sections 6901-6992, as amended by the Hazardous and Solid
Waste Amendments of 1984, and any amendments thereto and regulations
thereunder; (iii) the Clean Air Act, 42 U.S.C. 7401, et. seq., and any
amendments thereto and regulations thereunder; (iv) the Clean Water Act, 33
U.S.C. 1251, et. seq., and any amendments thereto and regulations
thereunder; (v) the Toxic Substances Control Act, 15 U.S.C. <section>2601,
et. seq., (vi) the Atomic Energy Act, 42 U.S.C. <section>2011, et. seq.
(vii) the Oil Pollution Act of 1990, 33 U.S.C. Sections 2701-2761, and any
amendments thereto and regulations thereunder; or (viii) any other federal,
state, local or foreign Environmental Law or regulation.
(b) No Environmental Claims have been asserted within the past
five years against Allen or, except as disclosed on SCHEDULE 4.22, a
predecessor-in-interest of Allen, regarding (i) the operations of Allen or
any predecessor-in-interest, (ii) the assets of Allen or any predecessor-
in-interest, or (iii) any properties now or previously owned or leased by
Allen or any predecessor-in-interest. No Allen Shareholder has knowledge
of any threatened or pending Environmental Claims against Allen or a
predecessor-in-interest of Allen which are reasonably likely to result in
Environmental Liabilities regarding (i) the operations of Allen or any
predecessor-in-interest, (ii) the assets of Allen or any predecessor-in-
interest, or (iii) any properties now or previously owned or leased by any
member of the Allen or any predecessor-in-interest. No Allen Shareholder
has actual knowledge of any Environmental Claims that have been asserted
against any facilities that may have received Hazardous Materials generated
by Allen or any predecessor-in-interest that is reasonably likely to result
in an Environmental Liability.
(c) Except as disclosed on SCHEDULE 4.22 or in an
Environmental Report referred to in Section 4.22(f), to the knowledge of
each Allen Shareholder, there are no Hazardous Materials used, disposed of,
discharged or stored by Allen, and any Hazardous Materials disclosed on
SCHEDULE 4.22 as used, disposed of, discharged or stored are and have been
so used, disposed of, discharged or stored in compliance with Environmental
Laws. To the knowledge of each Allen Shareholder there has been no Release
(i) at any of the properties now or previously owned, operated or leased by
Allen or any predecessor-in-interest, (ii) from any assets owned, leased or
operated by Allen or any predecessor-in-interest, or (iii) at any disposal,
storage or treatment facility which received Hazardous Materials generated
by Allen or any predecessor-in-interest which is reasonably likely to
result in Environmental Liabilities. Allen has not engaged any person to
handle, transport or dispose of Hazardous Materials on its behalf, and the
disposal by Allen of its Hazardous Materials has been in compliance with
all Environmental Laws.
(d) There are no underground tanks, active or abandoned, of any
type (including tanks storing gasoline, diesel fuel, oil or other petroleum
products) or disposal sites for hazardous substances, hazardous wastes or
any other waste, located on or under the real estate currently owned,
leased or used by Allen and there were no such disposal sites located on or
under the real estate previously owned, leased or used by Allen on the date
of the sale thereof by Allen or during the period of lease for use by
Allen.
(e) There are no past or present events, conditions,
circumstances, activities or practices which may interfere with or prevent
continued compliance with current Environmental Laws.
(f) There have been no environmental investigations, studies,
audits, tests, reviews or other analyses (collectively, "Environmental
Reports") conducted by, or which are in the possession or control of, Allen
that have been provided to a Governmental Entity in relation to any
premises owned, operated or leased by Allen except for those Environmental
Reports which have been made available to UNIFAB prior to the date hereof,
which Environmental Reports are listed on SCHEDULE 4.22. The Allen
Shareholders have caused UNIFAB to be provided with complete copies of any
Environmental Reports referenced herein.
Section 23.f COMPLIANCE WITH LAW; PERMITS. (a) The operations and
activities of Allen comply in all material respects with all applicable
laws, regulations, ordinances, rules or orders of any federal, state or
local court or any governmental authority.
(b) Allen possesses all material governmental licenses, permits
and other governmental authorizations that are (i) required under all
federal, state and local laws and regulations for the ownership, use and
operation of its assets or (ii) otherwise necessary to permit the conduct
of its business without interruption, and such licenses, permits and
authorizations are in full force and effect and have been and are being
complied with by it. Allen has received no written notice of any violation
of any of the terms or conditions of any such license, permit or
authorization and no Allen Shareholder has knowledge of any facts or
circumstances that could form the basis of a revocation, claim, citation or
allegation against it for a violation of any such license, permit or
authorization. No such license, permit or authorization or any renewal
thereof will be terminated, revoked, suspended, modified or limited in any
respect as a result of the transactions contemplated by this Agreement.
Section 24.b SAFETY AND HEALTH. The property and assets of Allen have
been and are being operated in material compliance with all Applicable Laws
designed to protect safety or health, or both, including, without
limitation, the Occupational Safety and Health Act and the regulations
promulgated pursuant thereto. Allen has not received any written notice of
any violations, deficiency, investigation or inquiry from any Governmental
Entity, employer or third party under any such Applicable Law and no Allen
Shareholder knows of any such investigation or inquiry that is planned or
threatened.
Section 25.b TRANSACTIONS WITH RELATED PARTIES. Except for payments
to employees of salaries, wages and reimbursement of expenses incurred in
the course of their employment consistent with past practices,
(a) SCHEDULE 4.25(A) lists all transactions between the Allen
Latest Balance Sheet and the date of this Agreement involving or for the
benefit of Allen, on the one hand, and any person who is or was a
shareholder, director or officer of Allen or an Affiliate of such
shareholder, director or officer, on the other hand, including (i) any
debtor or creditor relationship, (ii) any transfer or lease of real or
personal property, (iii) wages, salaries, commissions, bonuses and
agreements relating to employment, (iv) purchases or sales of products or
services, and (v) sales of products or services to third parties.
(b) SCHEDULE 4.25(B) lists (i) all material agreements and
claims of any nature that any person who is or was a shareholder, officer
or director of Allen or Affiliate of such shareholder, officer or director
has with or against Allen as of the date of this Agreement that are not
specifically identified on the Allen Latest Balance Sheet and (ii) all
material agreements and claims of any nature that Allen has with or against
any person who is or was a shareholder, officer or director of Allen or
Affiliate of such shareholder, officer or director as of the date of this
Agreement that are not specifically identified on the Allen Latest Balance
Sheet.
Section 26.b BROKER'S AND FINDER'S FEE. No agent, broker, Person or
firm acting on behalf of Allen other than Chaffe & Associates, Inc., is or
will be entitled to any commission or broker's or finder's fee from any of
the parties hereto, or from any person controlling, controlled by or under
common control with any of the parties hereto, in connection with any of
the transactions contemplated herein. The Allen Shareholders represent and
warrant that the fee due Chaffe & Associates, Inc., in the amount of
$20,000, is the separate obligation of Allen.
Section 27.b MATERIALITY. Where representations and warranties are
made in Article 4 the performance and fulfillment of which are qualified as
to materiality, such qualification as to all such representations and
warranties does not, in the aggregate, have a Material Adverse Effect.
Section 28.b DISCLOSURE. To the knowledge of each Allen Shareholder,
no representations or warranties by any of them in this Agreement and no
statement contained in any document (including, without limitation, the
financial statements, certificates, or other writings) furnished or to be
furnished by Allen to UNIFAB or any of its representatives pursuant to the
provisions hereof or in connection with the transactions contemplated
hereby, contains or will contain any untrue statement of material fact or
omits or will omit to state any material fact necessary, in light of the
circumstances under which it was made, in order to make the statements
herein or therein not misleading.
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF UNIFAB AND SUB
UNIFAB and Sub represent and warrant to and agrees with Allen and the
Allen Shareholders, as of the date hereof and as of the Closing Date, as
follows:
Section 1.b ORGANIZATION. UNIFAB is a corporation and Sub is a
limited liability company duly organized, validly existing and in good
standing under the laws of the State of Louisiana and have all requisite
power and authority to carry on their business as now being conducted and
to own their properties. Each other member of the UNIFAB Affiliated Group
is duly organized under the laws of the state or foreign nation of its
organization and has all the requisite power and authority under the laws
of such jurisdiction to carry on its business as now being conducted and to
own its properties. Each member of the UNIFAB Affiliated Group is duly
qualified to do business and is in good standing in each state and foreign
jurisdiction in which the character or location of the properties owned or
leased by it or the nature of the business conducted by it makes such
qualification necessary, except those jurisdictions, if any, in which the
failure to be so qualified would not individually or in the aggregate have
a Material Adverse Effect.
Section 2.b CAPITALIZATION. (a) The authorized capital stock of
UNIFAB consists exclusively of 25 million shares of capital stock,
comprised of (i) 20 million shares of Common Stock, $.01 par value per
share, of which 5,048,655 shares are issued and outstanding and no shares
are held in its treasury, and (ii) 5 million shares of preferred stock, no
par value per share, none of which are issued or outstanding. All of such
issued and outstanding shares have been validly issued, are fully paid and
nonassessable and were issued free of preemptive rights, in compliance with
any rights of first refusal, and in compliance with all legal requirements.
(b) UNIFAB is the sole member of Sub and the owner of the entire
equity interest of Sub.
Section 3.b AUTHORITY; ENFORCEABLE AGREEMENTS. (a) UNIFAB and Sub
each has the requisite power and authority to enter into this Agreement and
to consummate the transactions described herein. The execution and
delivery of this Agreement by UNIFAB and Sub and the consummation by UNIFAB
and Sub of the transactions described herein have been duly authorized by
all necessary corporate action on the part of UNIFAB and all requisite
action on the part of Sub.
(b) This Agreement has been duly executed and delivered by
UNIFAB and Sub, and constitutes a valid and binding obligation of UNIFAB
and Sub, enforceable in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization or
similar laws affecting creditors' rights generally or by general equitable
principles. The other agreements entered, or to be entered, into by UNIFAB
and Sub in connection with this Agreement have been, or will be, duly
executed and delivered by UNIFAB and Sub, and constitute, or will
constitute, valid and binding obligations of UNIFAB and Sub, enforceable in
accordance with their terms, except as such enforceability may be limited
by bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally or by general equitable principles.
Section 4.b NO CONFLICTS OR CONSENTS. (a) Neither the execution,
delivery or performance of this Agreement by UNIFAB or Sub nor the
consummation of the transactions contemplated hereby will violate, conflict
with, or result in a breach of any provision of, constitute a default (or
an event that, with notice or lapse of time or both, would constitute a
default) under, result in the termination of, or accelerate the performance
required by, or result in the creation of any adverse claim against any of
the properties or assets of any member of the UNIFAB Affiliated Group
under, (i) the certificates of incorporation, by-laws, articles of
organization, operating agreements or other organizational documents of any
member of the UNIFAB Affiliated Group, (ii) any note, bond, mortgage,
indenture, deed of trust, lease, license, agreement or other instrument or
obligation to which any member of the UNIFAB Affiliated Group is a party,
or by which any member of the UNIFAB Affiliated Group or any of its assets
are bound, or (iii) any Applicable Law to which any member of the UNIFAB
Affiliated Group is subject or by which any member of the UNIFAB Affiliated
Group or any of the assets of the foregoing are bound which would,
individually or in the aggregate, have a Material Adverse Effect.
(b) No consent or approval of, any Governmental Entity is
required by or with respect to UNIFAB or any of its Subsidiaries in
connection with the execution and delivery of this Agreement by UNIFAB or
is necessary for the consummation of the Merger and the other transactions
contemplated by this Agreement, except for: (i) the filing and recordation
requirements of the LBCL with respect to the Certificate of Merger and the
filing of appropriate documents with the relevant authorities of other
states in which UNIFAB or any of its Subsidiaries is qualified to do
business, and (ii) such other consents, orders, authorizations,
registrations, declarations and filings the failure of which to obtain or
make would not, individually or in the aggregate, reasonably be expected to
have a Material Adverse Effect on UNIFAB or would not materially impair the
ability of UNIFAB to perform its obligations hereunder or prevent the
consummation of any of the transactions contemplated hereby.
Section 5.b SEC DOCUMENTS; FINANCIAL STATEMENTS; LIABILITIES. (a)
UNIFAB has filed all required reports, schedules, forms, statements and
other documents with the SEC since September 18, 1997. As of their
respective dates, the UNIFAB Disclosure Documents, and any such reports,
forms and documents filed by UNIFAB with the SEC after the date hereof,
complied, or will comply, in all material respects with the requirements of
the Securities Act or the Exchange Act, as the case may be, and the rules
and regulations of the SEC promulgated thereunder applicable to such
Documents, and except to the extent that information contained in any
UNIFAB Disclosure Document has been revised or superseded by a later filed
UNIFAB Disclosure Document, none of such Documents contains any untrue
statement of a material fact or omits 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 were made, not misleading.
(b) The UNIFAB Audited Financial Statements included in the
UNIFAB Disclosure Documents have been audited by the certified public
accountants identified therein in accordance with generally accepted
auditing standards, have been prepared in accordance with generally
accepted accounting principles applied on a basis consistent with prior
periods, and present fairly the financial position of UNIFAB at such dates
and the results of operations and cash flow for the periods then ended,
except, in the case of the UNIFAB Interim Financial Statements, as
permitted by Rule 10-01 of Regulation S-X of the SEC. Except as and to the
extent set forth on the Latest UNIFAB Balance Sheet, including all notes
thereto, UNIFAB does not have any material liability or obligation of any
nature (whether accrued, absolute, contingent or otherwise) that would be
required to be reflected on, or reserved against in, a balance sheet of
UNIFAB or in the notes thereto, prepared in accordance with generally
accepted accounting principles consistently applied, except liabilities
arising since the date of the UNIFAB Latest Balance Sheet and as permitted
by this Agreement and that are not material individually or in the
aggregate.
(c) The UNIFAB Latest Balance Sheet includes appropriate
reserves for all Taxes and other liabilities incurred as of such date but
not yet payable.
(d) Since the date of the UNIFAB Latest Balance Sheet, there has
been no change that has had or is likely to have a Material Adverse Effect
on UNIFAB.
Section 6.d LEGALITY OF UNIFAB COMMON STOCK. The UNIFAB Common Stock
to be issued in connection with the Merger, when issued and delivered in
accordance with the terms hereof, will be duly authorized, validly issued,
fully paid and non-assessable.
Section 7.d TAX MATTERS. Each of the following is true with respect
to UNIFAB:
(a) all Returns have been or will be timely filed by UNIFAB when
due in accordance with all applicable laws; all Taxes shown on the Returns
have been or will be timely paid when due; the Returns have been properly
completed in compliance with all applicable laws and regulations and
completely and accurately reflected the facts regarding the income,
expenses, properties, business and operations required to be shown thereon;
the Returns are not subject to penalties under Section 6662 of the Code (or
any corresponding provision of state, local or foreign tax law);
(b) UNIFAB has paid all Taxes required to be paid by it (whether
or not shown on a Return) or for which it could be liable, whether to
taxing authorities or to other persons under tax allocation agreements or
otherwise, and the charges, accruals, and reserves for Taxes due, or
accrued but not yet due, relating to its income, properties, transactions
or operations for any Pre-Closing Period as reflected on its books
(including, without limitation, the UNIFAB Latest Balance Sheet) are
adequate to cover such Taxes;
(c) there are no agreements or consents currently in effect for
the extension or waiver of the time (A) to file any Return or (B) for
assessment or collection of any Taxes relating to the income, properties or
operations of UNIFAB for any Pre-Closing Period, and UNIFAB has not been
requested to enter into any such agreement or consent;
(d) there are no Liens for Taxes (other than for current Taxes
not yet due and payable) upon the assets of UNIFAB;
(e) all material elections with respect to Taxes affecting
UNIFAB are set forth in SCHEDULE 5.7(E);
(f) all Taxes that UNIFAB is required by law to withhold or
collect have been duly withheld or collected, and have been timely paid
over to the appropriate governmental authorities to the extent due and
payable;
(g) SCHEDULE 5.7(G) hereto sets forth (A) the taxable years of
UNIFAB as to which the respective statutes of limitations with respect to
Taxes have not expired, and (B) with respect to such taxable years sets
forth those years for which examinations have not been completed, those
years for which examinations are currently being conducted, those years for
which examinations have not been initiated, and those years for which
required Returns have not yet been filed. SCHEDULE 5.7(G) lists each state
and foreign jurisdiction in which UNIFAB has, in the last three years,
filed a Return, and no Return is required for any other state or foreign
jurisdiction;
(h) all tax deficiencies which have been asserted or, to
UNIFAB's knowledge, claimed or proposed against UNIFAB ("Tax Deficiencies")
have been fully paid or finally settled, and no issue has been raised in
any examination which, by application of similar principles, can be
expected to result in the proposal or assertion of a Tax Deficiency for any
other year not so examined;
(i) to UNIFAB's knowledge, no facts exist that would constitute
the basis for the proposal or assertion of any Tax Deficiencies for any
unexamined year or for the recharacterization of any item of income,
expense or deduction set forth on the Returns, and UNIFAB has complied in
all material respects with all applicable Tax laws;
(j) UNIFAB is not a party to any agreement, contract,
arrangement or plan that would result, separately or in the aggregate, in
the payment of any "excess parachute payments" within the meaning of Code
Section 280G (or any comparable provision of state or local law);
(k) UNIFAB has not agreed, nor is it required, to make any
adjustment under Code Section 481(a) (or any comparable provision of state
or local law) by reason of a change in accounting method or otherwise;
(l) UNIFAB has not filed a consent pursuant to the collapsible
corporation provisions of Section 341(f) of the Code (or any corresponding
provision of state, local or foreign income law) or agreed to have Section
341(f)(2) of the Code (or any corresponding provision of state, local or
foreign income law) apply to any disposition of any asset owned by it;
(m) none of the assets of UNIFAB is property that it is required
to treat as being owned by any other person pursuant to the so-called "safe
harbor lease" provisions of former Section 168(f)(8) of the Code;
(n) none of the assets of UNIFAB directly or indirectly secures
any debt, the interest on which is tax exempt under Section 103(a) of the
Code;
(o) none of the assets of UNIFAB is "tax-exempt use property"
within the meaning of Section 168(h) of the Code;
(p) UNIFAB has not made a deemed dividend election under former
Section 1.1502-32(f)(2) of the Treasury Regulations or a consent dividend
election under Section 565 of the Code;
(q) UNIFAB has never been a member of an affiliated group filing
consolidated returns other than a group of which UNIFAB is the parent
corporation;
(r) there are no outstanding balances of deferred gain or loss
accounts related to deferred intercompany transactions with respect to
UNIFAB under Sections 1.1502-13 or 1.1502-14 of the Treasury Regulations;
and
(s) UNIFAB is not (nor has ever been) a party to any tax sharing
agreement, has not assumed the liability of any other person under contract
and does not have any liability under Section 1.1502-6 of the Treasury
Regulations or analogous state, local or foreign law.
Section 8.s LITIGATION. Except as disclosed on SCHEDULE 5.8, there
are no actions, suits, proceedings, arbitrations or investigations pending
or, to the knowledge of UNIFAB, threatened before any court, any
governmental agency or instrumentality or any arbitration panel, against or
affecting UNIFAB or its directors, officers, or employees, and UNIFAB knows
of no basis therefor. UNIFAB is not subject to any currently pending
judgment, order or decree entered in any lawsuit or proceeding.
Section 9.s COMPLIANCE WITH LAW; PERMITS. (a) The operations and
activities of UNIFAB comply in all material respects with all applicable
laws, regulations, ordinances, rules or orders of any federal, state or
local court or any governmental authority.
(b) UNIFAB possesses all material governmental licenses, permits
and other governmental authorizations that are (i) required under all
federal, state and local laws and regulations for the ownership, use and
operation of its assets or (ii) otherwise necessary to permit the conduct
of its business without interruption, and such licenses, permits and
authorizations are in full force and effect and have been and are being
complied with by it. UNIFAB has received no notice of any violation of any
of the terms or conditions of any such license, permit or authorization and
UNIFAB has no knowledge of any facts or circumstances that could form the
basis of a revocation, claim, citation or allegation against it for a
violation of any such license, permit or authorization. No such license,
permit or authorization or any renewal thereof will be terminated, revoked,
suspended, modified or limited in any respect as a result of the
transactions contemplated by this Agreement.
Section 10.b BROKER'S AND FINDER'S FEE. No agent, broker, Person or
firm acting on behalf of UNIFAB is or will be entitled to any commission or
broker's or finder's fee from any of the parties hereto, or from any person
controlling, controlled by or under common control with any of the parties
hereto, in connection with any of the transactions contemplated herein.
The firm of Stephens Inc. will be paid a fee for advising UNIFAB with
respect to investment-banking related matters and for rendering a fairness
opinion in connection with the Merger.
Section 5.11 DISCLOSURE. To UNIFAB's knowledge, no representations or
warranties by UNIFAB in this Agreement and no statement contained in any
document (including, without limitation, the financial statements,
certificates, or other writings) furnished or to be furnished by UNIFAB to
Allen or any of its representatives pursuant to the provisions hereof or in
connection with the transactions contemplated hereby, contains or will
contain any untrue statement of material fact or omits or will omit to
state any material fact necessary, in light of the circumstances under
which it was made, in order to make the statements herein or therein not
misleading.
ARTICLE 5A. REPRESENTATIONS AND WARRANTIES OF THE
ALLEN SHAREHOLDERS AND UNIFAB
The Allen Shareholders and UNIFAB represent and warrant to each other
that they have each independently reviewed the provisions of the Hart-
Scott-Rodino Antitrust Improvements Act of 1976 and agree that no filing is
required thereunder with respect to the Merger.
ARTICLE 6 PRE-CLOSING COVENANTS
Section 1.b CONDUCT OF BUSINESS PRIOR TO THE CLOSING DATE. During the
period from the date of this Agreement to the Effective Time, Allen, the
Allen Shareholders, and UNIFAB shall each use its best efforts to preserve
the possession and control of all of its assets other than those consumed
or disposed of for value in the ordinary course of business or pursuant to
the terms of this Agreement, to preserve the goodwill of suppliers,
customers and others having business relations with it and to do nothing
knowingly to impair its ability to keep and preserve its business as it
exists on the date of this Agreement. Without the prior written consent
of the other party, neither Allen nor any Allen Shareholder nor UNIFAB
shall commit or suffer to occur any act or omission that (i) would cause a
breach of any agreement, commitment or covenant of such party contained in
this Agreement in any material respect or (ii) would cause its
representations and warranties contained in Articles 4 and 5, respectively,
to become untrue in any material respect. Without limiting the generality
of the foregoing, during the period from the date of this Agreement to the
Effective Time of the Merger each of Allen and UNIFAB shall conduct its
business only in the ordinary course consistent with past practices.
Section 2.b NO SOLICITATIONS. (A) Neither Allen nor any Allen
Shareholder shall directly or indirectly, either individually or through
any officer, director, employee, representative, agent or affiliate of
Allen, (i) initiate, solicit, encourage or otherwise facilitate the
initiation or submission of any inquiries, proposals or offers that
constitute or may reasonably be expected to lead to an Acquisition Proposal
(as defined below), (ii) enter into or maintain or continue discussions or
negotiate with any Person in furtherance of such inquiries or to obtain an
Acquisition Proposal or (iii) agree to, approve, recommend, or endorse any
Acquisition Proposal.
(B) For purposes of this Agreement, "Acquisition Proposal" means
an inquiry, offer or proposal regarding any of the following (other than
the transactions contemplated by this Agreement) involving Allen: (i) any
merger, reorganization, consolidation, share exchange, recapitalization,
business combination, liquidation, dissolution, or other similar
transaction involving, or, any sale, lease, exchange, mortgage, pledge,
transfer or other disposition of, all or any significant portion of the
assets or 10% or more of the equity securities of, Allen in a single
transaction or series of related transactions which could reasonably be
expected to interfere with the completion of the Merger; (ii) any tender
offer or exchange offer for 20% or more of the outstanding shares of
capital stock of Allen; or (iii) any public announcement of a proposal,
plan or intention to do any of the foregoing or any agreement to engage in
any of the foregoing.
(C) Allen or any Allen Shareholder shall promptly notify UNIFAB
after receipt of any Acquisition Proposal or any request for nonpublic
information relating to Allen or any of its Subsidiaries in connection with
an Acquisition Proposal or for access to any of the premises, books or
records of Allen or any Subsidiary by any person or entity that informs
Allen or its Board of Directors, formally or informally, that it is
considering making, or has made, an Acquisition Proposal. Such notice to
UNIFAB shall be made orally and in writing and shall indicate in reasonable
detail the identity of the offering party and the terms and conditions of
such proposal, inquiry or contact; except such disclosure shall be made to
UNIFAB only to the extent such disclosure does not violate the fiduciary
responsibilities of the Board of Directors of Allen, after being advised by
its legal counsel, in which case Allen shall provide UNIFAB with a summary
of the terms and conditions of such proposal, inquiry or contact.
Section 3.a PRESS RELEASES. Allen and UNIFAB will consult with each
other before issuing, and provide each other the opportunity to review and
comment upon, any press releases or other public statements with respect to
any transactions described in this Agreement, including the Merger, and
shall not issue any such press releases or make any such public statement
prior to such consultation, except as may be required by applicable law,
court process or by obligations pursuant to a listing agreement with
NASDAQ.
Section 4.a ACCESS TO INFORMATION AND CONFIDENTIALITY. Until the
Effective Time, Allen shall afford to UNIFAB and to its officers,
employees, accountants, counsel, financial advisors and other
representatives, reasonable access during normal business hours to its
premises, books and records and will furnish UNIFAB such other information
with respect to its business and properties as UNIFAB reasonably requests.
Section 5.a CONSULTATION AND REPORTING. During the period from the
date of this Agreement to the Closing Date, each of Allen and UNIFAB will
confer on a regular and frequent basis with the other to report material
operational matters and to report on the general status of ongoing
operations. Each of Allen and UNIFAB will notify the other promptly of any
unexpected emergency or other change in the normal course of its business
or in the operation of its properties and of any governmental complaints,
investigations, adjudicatory proceedings, or hearings (or communications
indicating that the same may be contemplated) and will keep the other fully
informed of such events and permit its representatives prompt access to all
materials prepared by or on behalf of such party or served on them, in
connection therewith.
Section 6.a NOTIFICATION OF CHANGES. (a) Each of Allen and the Allen
Shareholders shall promptly notify UNIFAB of any event that causes any
representation or warranty given by the Allen Shareholders in Article 4 to
become untrue. UNIFAB shall promptly notify each of Allen and the Allen
Shareholders of any event that causes any representation or warranty given
by UNIFAB and Sub in Article 5 to become untrue.
(b) The Allen Shareholders and UNIFAB shall each have the right
until the Closing to supplement or amend any of the Schedules described in
Articles 4 or 5 with respect to any matter arising or discovered after the
date of this Agreement which, if existing or known on the date of this
Agreement, would have been required to be set forth or described in such
Schedules. For all purposes of this Agreement, including for purposes of
determining whether the conditions set forth in Article 8 have been
fulfilled, the Schedules shall be deemed to include only that information
contained therein on the date of this Agreement and shall be deemed to
exclude all information contained in any supplement or amendment thereto,
except to the extent that they reflect an event or condition that would be
beneficial to the other party; provided, however, that if the Closing shall
occur, then all matters disclosed pursuant to any such supplement or
amendment shall be deemed included in the Schedules at Closing (without
necessity of a written waiver or other action on the part of any party) and
to modify the applicable representations and warranties for all purposes.
Section 7.b SUB MEMBER APPROVAL. UNIFAB, as the sole member of Sub,
shall take all action necessary to effect the necessary approval by Sub of
this Agreement.
Section 8.b ENVIRONMENTAL DUE DILIGENCE. During the period from the
date of this Agreement through and including five Business Days before the
Closing Date, UNIFAB shall have the right at its sole cost, risk and
expense to make, or cause to be made, an environmental assessment of the
operations and physical premises of Allen. To the extent the obligations
hereunder would not require the interruption of existing services or
materially interfere with customer relationships, Allen shall fully
cooperate in affording access to its physical premises in order to permit
UNIFAB or its agents to ascertain the general environmental condition of
such physical premises and operations.
ARTICLE 7 POST-CLOSING COVENANTS
Section 1.b RESTRICTIONS ON RESALE. UNIFAB has informed the Allen
Shareholders that UNIFAB intends to account for the Merger as a pooling-of-
interests under generally accepted accounting principles. UNIFAB has also
informed the Allen Shareholders that its ability to account for the merger
as a pooling-of-interests was a material factor considered by UNIFAB in
UNIFAB's decision to enter into this Agreement. Therefore, pursuant to
generally accepted accounting principles, prior to the publication and
dissemination by UNIFAB of consolidated financial results which include
results of the combined operations of the Surviving Company and UNIFAB for
at least 30 days on a consolidated basis following the Effective Time, the
Allen Shareholders shall not sell, offer to sell, or otherwise transfer or
dispose of, any of the Merger Consideration received by Allen Shareholders.
The certificates evidencing the Merger Consideration to be received by the
Allen Shareholders will bear a legend substantially in the form set forth
in Section 4.4 hereof.
Section 2.b TAX-FREE REORGANIZATION. UNIFAB and the Allen
Shareholders are entering into this Agreement with the intention that the
Merger qualify as a tax-free reorganization for federal income tax purposes
and neither the Allen Shareholders nor UNIFAB will take any actions that
disqualify the Merger for such treatment.
Section 3.b RELEASE AND INDEMNIFICATION OF WILLIAM A. HINES. Promptly
after Closing, and in no event later than three business days after the
Closing Date, UNIFAB shall have released those items reflected on SCHEDULE
7.3 as obligations of William A. Hines. UNIFAB hereby agrees to indemnify
and hold harmless William A. Hines from any and all liabilities, costs and
expenses whatsoever, including without limitation reasonable attorneys fees
and costs, arising from any enforcement, threatened enforcement or attempts
to enforce the aforementioned obligations against William A. Hines.
ARTICLE 8 CLOSING CONDITIONS
Section 1.b CONDITIONS APPLICABLE TO ALL PARTIES. The obligations of
each of the parties hereto to effect the Merger and the other transactions
contemplated by this Agreement are subject to the satisfaction or waiver of
the following conditions at or prior to the Closing:
(a) NO RESTRAINING ACTION. No action, suit, or proceeding
before any court or governmental or regulatory authority will be pending,
no investigation by any governmental or regulatory authority will have been
commenced, and no action, suit or proceeding by any governmental or
regulatory authority will have been threatened, against Allen, any Allen
Shareholder, UNIFAB or any of the principals, officers, managers or
directors of Allen or UNIFAB seeking to restrain, prevent or change the
transactions contemplated hereby or questioning the legality or validity of
any such transactions or seeking damages in connection with any such
transactions.
(b) STATUTORY REQUIREMENTS AND REGULATORY APPROVAL. All
statutory requirements under Section 112 or the LBCL and Section 1358-1360
of the LLCL for valid consummation of the Merger shall have been fulfilled
and all appropriate orders, consents and approvals from all regulatory
agencies and other governmental authorities whose order, consent or
approval is required by law for the consummation of the Merger shall have
been received.
Section 2.b CONDITIONS TO UNIFAB'S OBLIGATIONS. The obligations of
UNIFAB to effect the Merger and the other transactions contemplated by this
Agreement are also subject to the satisfaction or waiver of the following
conditions at or prior to the Closing:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) All
representations and warranties of the Allen Shareholders in this Agreement
or in any certificate or document delivered to UNIFAB pursuant hereto as of
the date hereof (without regard to any Schedule updates furnished by Allen
after the date hereof, as contemplated by Section 6.6(b)), if made on and
as of the Closing Date, would then be true and correct in all material
respects, and (ii) Allen and the Allen Shareholders will have performed and
complied in all material respects with all agreements and conditions
required by this Agreement to be performed or complied with by them prior
to or on the Closing Date.
(b) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
any Material Adverse Change from the date of the Allen Latest Balance Sheet
to the Closing Date in the financial condition, results of operations,
properties or business of Allen.
(c) SHAREHOLDER ACTION. Each and every Allen Shareholder shall
have waived, in writing, with respect to shares held by the remaining Allen
Shareholders, Allen's right to purchase Allen Common Stock pursuant to
Article V of Allen's articles of incorporation.
(d) CONSENTS AND APPROVALS. All governmental and other third-
party consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement, or to permit the
continued operation of the business of Allen in substantially the same
manner after the Closing Date as before, will have been received.
(e) DEBT LIMITATION. Allen's aggregate indebtedness as shown on
Allen's Interim Financial Statements shall not exceed $10 million, except
(i) to provide necessary working capital for Allen to sustain its
operations, and (ii) as consented to in writing by UNIFAB, which consent
shall not be unreasonably withheld.
(f) POOLING-OF-INTERESTS. UNIFAB shall be reasonably satisfied
that the Merger will qualify for pooling-of-interests treatment under
generally accepted accounting principles.
(g) NO TAXABLE GAIN. UNIFAB will be reasonably satisfied that
no taxable gain will be recognized by UNIFAB, Sub or Allen as a result of
the Merger under any applicable Tax law or regulation.
(h) PORTER, JR. EMPLOYMENT AGREEMENT. UNIFAB shall have
received an employment agreement, substantially in the form attached
hereto as EXHIBIT 8.2(H), from Allen C. Porter, Jr..
(i) NON-COMPETITION AGREEMENT. UNIFAB shall have received a
noncompetition agreement, substantially in the form attached hereto as
EXHIBIT 8.2(I), from William A. Hines.
(j) LOCKUP LETTER. UNIFAB shall have received a lockup letter
agreement, substantially in the form attached hereto as EXHIBIT 8.2(J) from
William A. Hines.
(k) OPINION OF COUNSEL. UNIFAB shall have received from Simon,
Peragine, Smith & Redfearn, LLP, counsel to Allen and to the Allen
Shareholders, an opinion, dated as of the Closing Date, to the effect set
forth in EXHIBIT 8.2(K).
Section 3.k CONDITIONS TO THE OBLIGATIONS OF ALLEN AND THE ALLEN
SHAREHOLDERS. The obligations of Allen and the Allen Shareholders to
effect the Merger and the other transactions contemplated by this Agreement
are also subject to the satisfaction or waiver of the following conditions
at or prior to the Closing:
(a) REPRESENTATIONS, WARRANTIES AND COVENANTS. (i) The
representations and warranties of UNIFAB and Sub in this Agreement or in
any certificate or document delivered to Allen and the Allen Shareholders
pursuant hereto as of the date hereof (without regard to any Schedule
updates furnished by UNIFAB or Sub after the date hereof, as contemplated
by Section 6.6(b)), if made on and as of the Closing Date, would then be
true and correct in all material respects, and (ii) UNIFAB and Sub will
have performed and complied in all material respects with all agreements
and conditions required by this Agreement to be performed or complied with
by them prior to or on the Closing Date.
(b) NO MATERIAL ADVERSE CHANGE. There shall not have occurred
any Material Adverse Change from the date of the UNIFAB Latest Balance
Sheet to the Closing Date in the financial condition, results of operations
or business of UNIFAB.
(c) CONSENTS AND APPROVALS. All governmental and other third-
party consents and approvals, if any, necessary to permit the consummation
of the transactions contemplated by this Agreement will have been received.
(d) REGISTRATION RIGHTS AGREEMENT. The Allen Shareholders shall
have received an agreement substantially in the form set forth in EXHIBIT
8.3(D) pursuant to which UNIFAB will grant to the Allen Shareholders
certain piggy-back registration rights with respect to the shares of UNIFAB
Common Stock received by them in the Merger.
(e) OPINION OF COUNSEL. Allen and the Allen Shareholders shall
have received from Jones, Walker, Waechter, Poitevent, Carr<e`>re &
Den<e`>gre, L.L.P., counsel for UNIFAB, an opinion, dated as of the
Closing Date, to the effect set forth in EXHIBIT 8.3(E).
(f) NO TAXABLE GAIN. The Allen Shareholders shall be reasonably
satisfied that they will not recognize any taxable gain as a result of the
Merger under any applicable Tax law or regulation.
(g) BOARD OF DIRECTORS. The Board of Directors of UNIFAB (the
"Board") shall have taken all action necessary to (i) increase the number
of directors on the Board to six and the number of Class III directors to
two, and (ii) appoint William A. Hines to fill the vacancy on the Board
created thereby.
(h) PROMISSORY NOTE. Each Allen Shareholder shall have received
a promissory note made by UNIFAB under which UNIFAB will pay to such Allen
Shareholder 40% of his allocable share of the net income for federal and
Louisiana state income tax purposes of Allen for the Allen Tax Year, which
promissory note shall be in the form set forth in EXHIBIT 8.3(H).
Section 4.h WAIVER OF CONDITIONS. Any condition to a party's
obligation to effect the Merger hereunder may be waived by that party.
ARTICLE 9 SURVIVAL OF REPRESENTATIONS; INDEMNITY
Section 1.h POST-CLOSING REMEDIES. After the Effective Time, in the
absence of fraud, the provisions of this Article 9 shall constitute the
exclusive remedies of the parties for any breach of or non-compliance with
any of the representations, warranties or agreements set forth in Article
4, Article 5 or any certificate delivered pursuant to Section 8.2(f) or
Section 8.3(d) of this Agreement.
Section 2.h INDEMNIFICATION BY ALLEN SHAREHOLDERS. The Allen
Shareholders agree to indemnify, defend, protect and hold harmless UNIFAB
and Sub, at all times from and after the Effective Time, from and against
all claims, damages, actions, suits, proceedings, demands, assessments,
adjustments, costs and expenses (including but not limited to reasonable
attorneys' fees and expenses of investigation) (collectively, "Damages")
incurred by either of them as a result of or incident to any breach or non-
fulfillment of any representation, warranty or agreement made by Allen or
the Allen Shareholders in Article 4 or any certificate delivered pursuant
to Section 8.2(f) hereof; provided, however, that in the absence of fraud
the sole remedy of UNIFAB and Sub for indemnification hereunder for breach
or non-fulfillment of any such representation, warranty, agreement or
certificate shall be recourse by UNIFAB and Sub to the Escrow Shares and
Escrow Cash pursuant to Sections 9.4 and 9.5; and provided, further, that
each Allen Shareholder agrees to remain personally obligated to indemnify
and hold harmless UNIFAB and Sub for Damages caused by the breach or non-
fulfillment of a representation, warranty or agreement made by him in
Section 4.1 or Section 4.2 without limitation as to either time or amount.
Section 3.h INDEMNIFICATION BY UNIFAB. UNIFAB covenants and agrees
that it will indemnify, defend, protect and hold harmless each Allen
Shareholder at all times from and after the Effective Time, from and
against all Damages incurred by such Allen Shareholder as a result of or
incident to any breach or non-fulfillment of any representation, warranty
or agreement of UNIFAB or Sub set forth in Article 5 or in any certificate
delivered pursuant to Section 8.3(d); provided, however, that in the
absence of fraud UNIFAB shall not have liability to any Allen Shareholder
under this Section 9.3 for Damages that in the aggregate exceed the sum of
(i) 10% of the value of the shares of UNIFAB Common Stock issued to such
Assenting Allen Shareholder in connection with the Merger, such value to be
determined on the basis of the closing price of UNIFAB Common Stock as
reported by NASDAQ on the last Business Day prior to the date on which it
is determined that an amount is to be paid pursuant to Section 9.4, and
(ii) the Escrow Cash (the "Indemnity Value").
Section 4.h PROCEDURES. (a) Any party claiming indemnity for Damages
under this Article 9 (the "Indemnified Party") shall give prompt notice to
the party by whom such indemnity is owed (the "Indemnifying Party") of the
occurrence of any such Damages and of the nature and amount thereof (the
"Indemnity Claim"); provided however, that no party may claim indemnity for
damages under this Article 9 unless an Indemnity Claim (or two or more
Indemnity Claims in the aggregate) exceeds $50,000. No notice of any
Indemnity Claim may be given after the Escrow Termination Date and any
Indemnity Claim given after such date shall be void and of no force or
effect. The Indemnifying Party shall respond in writing to such notice
within ten Business Days from the date that such notice of an Indemnity
Claim is received to either (i) accept the Indemnity Claim as subject to
the indemnities provided hereunder, or (ii) challenge the Indemnity Claim
on the basis of either (A) the merits, or (B) the amount of the Indemnity
Claim. If the Indemnifying Party fails to respond within ten Business Days
of receipt of the notice provided for herein, such failure to respond shall
be deemed acceptance under clause (i) of the immediately preceding
sentence. Any Indemnity Claim so accepted by UNIFAB shall be promptly paid
in cash, subject to the limitations set forth in Section 9.3. Any
Indemnity Claim so accepted by or on behalf of one or more of the Allen
Shareholders shall be paid as provided in Section 9.5.
(b) If the Indemnifying Party challenges the Indemnity Claim
under Section 9.4(a) above, the parties shall attempt to resolve the
challenge through negotiation in good faith. If the matter is not resolved
within ten Business Days after notice of the Indemnifying Party's challenge
is received by the Indemnified Party, either party may submit such matter
to a single arbitrator. The arbitrator will be selected by the joint
agreement of the parties, but if they do not agree within 20 calendar days
of the lapse of the ten-Business Day period referred to above, the
selection shall be made in accordance with the Commercial Arbitration Rules
of the American Arbitration Association (the "Rules"). If no such
arbitrator is appointed within 45 calendar days of any such request to such
association, either party may apply to a court having jurisdiction to make
such appointment. The arbitrator shall conduct the arbitration in the
Parish of Iberia, State of Louisiana, in accordance with the Rules and
shall make a final determination, to be provided in writing to each party,
that resolves the dispute. The prevailing party shall be entitled to
recover from the other party the fees of the arbitrator and the
administrative costs of the arbitration. The arbitrator shall apply the
statutory and decisional law of the State of Louisiana in substantially the
same manner as do the courts of the State of Louisiana in the case of
contracts made and wholly performed within that jurisdiction. All results
of the arbitration proceeding shall be final, conclusive and binding on all
parties to this Agreement, and judgment upon the arbitrator's award may be
entered in any court of the State of Louisiana having competent
jurisdiction, unless such results or award are clearly erroneous on the
record before the arbitrator. In the event of an arbitration award in
favor of the Indemnified Party, if the Indemnifying Party is (i) UNIFAB,
such arbitration award shall be paid in cash, subject to the limitations in
Section 9.3, or (ii) one or more of the Allen Shareholders, such
arbitration award shall be paid as provided in Section 9.5.
Section 5.h ESCROW PROCEDURES. (a) At or after the Effective Time
and upon surrender by an Allen Shareholder of his certificates representing
his shares of Allen Common Stock pursuant to the provisions of Section 3.2,
UNIFAB shall retain the Escrow Shares or Escrow Cash, as the case may be,
in escrow to secure the indemnification provided under Section 9.2 above
until the later of the Escrow Termination Date or the Extended Escrow
Termination Date.
(b) In all matters pertaining to the indemnification provisions
of this Agreement and the disposition of the Escrow Shares in connection
therewith, each Allen Shareholder hereby appoints and names Frank J.
Cangelosi, Jr. (or such other Person as shall hereafter be appointed in
writing by the Allen Shareholders holding a majority of the outstanding
shares of Allen Common Stock immediately before the Effective Time and as
shall consent in writing to such appointment), as his authorized
representative (the "Allen Shareholder Representative"), and vests the
Allen Shareholder Representative with full power and authority to give and
receive notices and otherwise act on his behalf with regard to all matters
arising under this Article 9.
(c) In the event of an Indemnity Claim that is either (i)
accepted by the Allen Shareholder Representative, or (ii) the subject of an
arbitration award pursuant to Section 9.4(b) in favor of UNIFAB or Sub,
UNIFAB shall (A) cause a number of Escrow Shares to be canceled such that
the value of the canceled Escrow Shares, valued at the Indemnity Value,
shall equal the lesser of (x) 91% of the amount of the Indemnity Claim, or
(y) the aggregate value of the Escrow Shares, and (B) reduce the Escrow
Cash by an amount that is the lesser of (x) 9% of the Indemnity Claim, or
(y) the Escrow Cash plus accrued interest thereon, if any. In the event
Escrow Shares are canceled in accordance with subsection (ii)(A)(x) of this
Section 9.5(c), such Escrow Shares shall be canceled pro rata among the
Assenting Allen Shareholders.
(d) The date of issuance of the first independent audit report
of the combined results of UNIFAB and Sub following the Merger shall be the
"Escrow Termination Date."
(e) The date upon which an Indemnity Claim that is not resolved
as of the Escrow Termination Date, of which the Allen Shareholder
Representative or UNIFAB, as the case may be, receives notice on or before
the Escrow Termination Date, is either (i) resolved pursuant to Section
9.4(a) hereof, or (ii) the subject of an arbitration award pursuant to
Section 9.4(b) hereof, shall be the "Extended Escrow Termination Date."
(f) At the Escrow Termination Date UNIFAB shall (i) cancel the
number of Escrow Shares, if any, necessary to satisfy Indemnity Claims
pursuant to Section 9.5(c) hereof and distribute the Escrow Shares not
canceled to each of the Assenting Allen Shareholders in the name of whom
the Escrow Shares are issued, and (ii) reduce the Escrow Cash by an amount
necessary to satisfy Indemnity Claims pursuant to Section 9.5(c) hereof and
distribute the remaining Escrow Cash plus accrued interest thereon, if any,
to Porter in cash. Notwithstanding the provisions of the first sentence of
this clause (f), however, in the event an Indemnity Claim is received by
UNIFAB or the Allen Shareholder Representative, as the case may be, on or
before the Escrow Termination Date and at the Escrow Termination Date is
not either (A) satisfied in accordance with Section 9.5(c) hereof, or (B)
the subject of an arbitration award sustaining a challenge by the Allen
Shareholder Representative, UNIFAB shall retain in safekeeping from the
Escrow Shares that are not canceled in accordance with the first sentence
of this clause (f) and the remaining Escrow Cash until the Extended Escrow
Termination Date a number of Escrow Shares and an amount of Escrow Cash
that will, in its discretion, be sufficient to satisfy the pending
Indemnity Claim in the event it is satisfied pursuant to Section 9.5(c)
hereof and distribute the balance of the Escrow Shares to the Assenting
Allen Shareholders and the balance of the Escrow Cash plus accrued interest
thereon, if any, to Porter. At the Extended Escrow Termination Date UNIFAB
shall (w) cancel the number of retained Escrow Shares, if any, necessary to
satisfy 91% of the pending Indemnity Claim pursuant to Section
9.5(c)(i)(A), (x) deliver the remaining retained Escrow Shares to the
Assenting Allen Shareholders, (y) reduce the retained Escrow Cash by an
amount necessary to satisfy 9% of the pending Indemnity Claims, and (z)
distribute the remaining retained Escrow Cash plus accrued interest
thereon, if any, to Porter.
(g) Each Allen Shareholder will deliver to UNIFAB at the
Closing, with respect to the Merger Shares, an executed stock power naming
UNIFAB attorney-in-fact for such Allen Shareholder for the transfer of the
Merger Shares.
ARTICLE 10 TERMINATION
Section 1.h TERMINATION. This Agreement may be terminated and the
Merger contemplated herein abandoned at any time before the Effective Time,
whether before or after approval by the shareholders of Allen or UNIFAB as
follows:
(a) MUTUAL CONSENT. By the mutual consent of Allen and UNIFAB.
(b) MATERIAL BREACH. By the Board of Directors of either Allen
or UNIFAB if there has been a material breach by the other of any
representation or warranty contained in this Agreement or of any covenant
contained in this Agreement, which in either case cannot be, or has not
been, cured within 15 days after written notice of such breach is given to
the party committing such breach, provided that the right to effect such
cure shall not extend beyond the date set forth in subparagraph (c) below.
(c) ABANDONMENT. By the Board of Directors of either Allen or
UNIFAB if (i) all conditions to Closing required by Article 8 hereof have
not been met by or waived by the Closing Date, (ii) any such condition
cannot be met by such date and has not been waived by each party in whose
favor such condition inures, or (iii) the Merger has not occurred by such
date; provided, however, that neither Allen nor UNIFAB shall be entitled to
terminate this Agreement pursuant to this subparagraph (c) if such party is
in material violation of any of its representations, warranties or
covenants in this Agreement.
(d) GOVERNMENT ACTION. If any governmental authority shall have
issued an order, decree or ruling or taken any other action permanently
enjoining, restraining or otherwise prohibiting the Merger and such order,
decree, ruling or other action shall have become final and nonappealable.
(e) ENVIRONMENTAL REVIEW. In the event UNIFAB's environmental
due diligence of Allen reveals an environmental condition that would have a
Material Adverse Effect, UNIFAB may terminate this Agreement at any time
prior to five Business Days before the Closing Date by giving notice to
Allen.
Section 2.e EFFECT OF TERMINATION. Upon termination of this Agreement
pursuant to this Article 10, this Agreement shall be void and of no effect,
and shall result in no obligation of or liability to any party or their
respective directors, officers, employees, agents or shareholders, unless
such termination was the result of an intentional breach of any
representation, warranty or covenant in this Agreement in which case the
party who breached the representation, warranty or covenant shall be liable
to the other party for damages, and all costs and expenses incurred in
connection with the preparation, negotiation, execution and performance of
this Agreement.
ARTICLE 11 MISCELLANEOUS
Section 1.e NOTICES. All notices hereunder must be in writing and
will be deemed to have been duly given upon receipt of hand delivery;
certified or registered mail, return receipt requested; or telecopy
transmission with confirmation of receipt:
(a) If to UNIFAB:
UNIFAB International, Inc.
5007 Port Road
P. O. Box 11308
New Iberia, LA 70562-1308
Attention: President
Fax No. 318-365-3711
with a copy to:
Jones, Walker, Waechter, Poitevent, Carrere & Denegre, L.L.P.
201 St. Charles Avenue
Suite 5100
New Orleans, LA 70170
Attention: Carl C. Hanemann
Fax No. 504-582-8012
(b) If to Allen or the Allen Shareholders:
Frank J. Cangelosi, Jr.
Suite 300
3636 North Causeway Boulevard
Metairie, LA 70002
Fax No. 504-837-3753
with a copy to:
Robert L. Redfearn, Esq.
Simon, Peragine, Smith & Redfearn, L.L.P.
Suite 3000
1100 Poydras Street
New Orleans, LA 70163-3000
Fax No. 504-569-2999
Such names and addresses may be changed by written notice to each person
listed above.
Section 2.b GOVERNING LAW. This Agreement shall be governed by,
construed and interpreted in accordance with the laws of the State of
Louisiana, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof.
Section 3.b COUNTERPARTS. This Agreement may be executed in
counterparts, each of which will be deemed an original but all of which
together will constitute one and the same instrument.
Section 4.b INTERPRETATION; SCHEDULES. (a) When a reference is made
in this Agreement to an Article, Section, Exhibit or Schedule, such
reference shall be to an Article, or Section of, or an Exhibit or Schedule
to, this Agreement unless otherwise indicated. The table of contents and
headings contained in this Agreement are for reference purposes only and
shall not affect in any way the meaning or interpretation of this
Agreement. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(b) The information set forth in the Schedules to this Agreement
is qualified in its entirety by reference to the specific provisions of
this Agreement, and is not intended to constitute, and shall not be
construed as constituting, separate representations or warranties of the
party to which such Schedules relate except as and to the extent provided
in this Agreement. Inclusion of information in the Schedules shall not be
construed as an admission that such information is material for purposes of
the specific provisions of this Agreement to which such information
relates. Information included in the Schedules that is not required to be
so included under the specific provisions of this Agreement shall be deemed
to be included for informational purposes only and information of a similar
nature need not be included, at the discretion of the party providing such
information.
Section 5.b ENTIRE AGREEMENT; SEVERABILITY. (a) This Agreement,
including the Exhibits and Schedules hereto and the documents referred to
herein, embodies the entire agreement and understanding of the parties
hereto in respect of the subject matter contained herein. This Agreement
supersedes all prior agreements and understandings (whether written or
oral) between the parties with respect to such subject matter.
(b) If any provision of this Agreement is determined to be
invalid or unenforceable, in whole or in part, it is the parties' intention
that such determination will not affect the validity or enforceability of
any other provision of this Agreement, which provisions will otherwise
remain in full force and effect.
Section 6.b AMENDMENT AND MODIFICATION. This Agreement may be amended
or modified only by written agreement of the parties hereto.
Section 7.b EXTENSION; WAIVER. At any time prior to the Effective
Time of the Merger, the parties may (a) extend the time for the performance
of any of the obligations or other acts of the other parties, (b) waive any
inaccuracies in the representations and warranties contained in this
Agreement or in any document delivered pursuant to this Agreement or (c)
waive compliance with any of the agreements or conditions contained in this
Agreement except for Sections 8.1(a) or (b). The failure of a party to
insist upon strict adherence to any term of this Agreement on any occasion
shall not be considered a waiver or deprive that party of the right
thereafter to insist upon strict adherence to that term or any other term
of this Agreement. No waiver of any breach of this Agreement shall be held
to constitute a waiver of any other or subsequent breach. Any waiver must
be in writing.
Section 8.b BINDING EFFECT; BENEFITS. This Agreement will inure to
the benefit of and be binding upon the parties hereto and their respective
successors and assigns. Nothing in this Agreement, express or implied, is
intended to confer on any person other than the parties hereto and their
respective successors and assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
Section 9.b ASSIGNABILITY. This Agreement is not assignable by any
party hereto without the prior written consent of the other parties.
Section 10.b EXPENSES. Each of the parties hereto shall pay all of
its own expenses relating to the transactions contemplated by this
Agreement, including without limitation the fees and expenses of its own
financial, legal, accounting and tax advisors.
Section 11.b GENDER AND CERTAIN DEFINITIONS. All words used herein,
regardless of the number and gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other
gender, masculine, feminine or neuter, as the context requires.
Section 11.12 INTERVENTION OF ALLEN SHAREHOLDER REPRESENTATIVE.
Frank J. Cangelosi, Jr., intervenes and joins in this Agreement for the
sole purpose of consenting to and accepting his appointment as the Allen
Shareholder Representative pursuant to Section 9.5(b) hereof.
[THE BALANCE OF THIS PAGE IS DELIBERATELY BLANK]
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first written above.
UNIFAB INTERNATIONAL, INC.
By: /s/ Dailey J. Berard
--------------------
Dailey J. Berard, President
ATI ACQUISITION, L.L.C.
By: /s/ Dailey J. Berard
--------------------
Dailey J. Berard, Manager
ALLEN TANK, INC.
By: /s/ Frank J. Cangelosi, Jr.
---------------------------
Frank J. Cangelosi, Jr., Treasurer
SHAREHOLDERS OF ALLEN TANK, INC.
/s/ Vincent J. Cuevas
-----------------------
Vincent J. Cuevas
/s/ Walter L. Hampton
-----------------------
Walter L. Hampton
/s/ William A. Hines
----------------------
William A. Hines
/s/ Allen C. Porter, Jr.
--------------------------
Allen C. Porter, Jr.
/s/ Joseph C. Weisberger
--------------------------
Joseph C. Weisberger
INTERVENOR
/s/ Frank J. Cangelosi, Jr.
-----------------------------
Frank J. Cangelosi, Jr.