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EXHIBIT 10.10
Execution Copy
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ACQUISITION AGREEMENT
dated as of the 11th day of February, 1999
by and among
AMERICAN PLUMBING & MECHANICAL, INC.
R.C.R. PLUMBING, INC.
and
all of the STOCKHOLDERS of R.C.R. PLUMBING, INC.
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TABLE OF CONTENTS
Page
RECITALS .........................................................................................................1
1. ACQUISITION OF STOCK.....................................................................................5
1.1 Acquisition.....................................................................................5
1.2 Consideration...................................................................................5
1.3 Certain Information With Respect to the Capital Stock of the Company
and AmPaM.......................................................................................5
2. BOARD OF DIRECTORS AND OFFICERS OF THE COMPANY...........................................................5
2.1 Board of Directors..............................................................................5
2.2 Officers........................................................................................5
3. DELIVERY OF CONSIDERATION................................................................................6
3.1 Stockholders' Consideration.....................................................................6
3.2 Stockholders' Deliveries........................................................................6
4. CLOSING..................................................................................................6
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY............................................................6
5.1 Due Organization................................................................................7
5.2 Authorization...................................................................................7
5.3 Capital Stock of the Company....................................................................7
5.4 Transactions in Capital Stock...................................................................8
5.5 No Bonus Shares.................................................................................8
5.6 Subsidiaries; Ownership in Other Entities.......................................................8
5.7 Predecessor Status; etc.........................................................................8
5.8 Spin-off by the Company.........................................................................8
5.9 Financial Statements............................................................................8
5.10 Liabilities and Obligations.....................................................................9
5.11 Accounts and Notes Receivable..................................................................10
5.12 Licenses; Intellectual Property................................................................10
5.13 Environmental Matters..........................................................................11
5.14 Personal Property..............................................................................13
5.15 Significant Customers; Material Contracts and Commitments......................................13
5.16 Real Property..................................................................................14
5.17 Insurance......................................................................................14
5.18 Compensation; Employment Agreements; Labor Matters.............................................15
5.19 Employee Plans.................................................................................15
5.20 Compliance with ERISA..........................................................................16
5.21 Conformity with Law; Litigation................................................................17
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5.22 Taxes..........................................................................................17
5.23 No Violations; No Consent Required, Etc........................................................18
5.24 Government Contracts...........................................................................19
5.25 Absence of Changes.............................................................................19
5.26 Deposit Accounts; Powers of Attorney...........................................................21
5.27 Validity of Obligations........................................................................21
5.28 Relations with Governments.....................................................................21
5.29 Disclosure.....................................................................................21
5.30 No Warranties or Insurance.....................................................................21
5.31 Interest in Customers and Suppliers and Related Party Transactions.............................22
5.32 Private Placement Memorandum...................................................................22
5.33 Authority; Ownership...........................................................................22
5.34 Preemptive Rights..............................................................................23
5.35 No Commitment to Dispose of AmPaM Stock........................................................23
5.36 Disclosure.....................................................................................23
6. REPRESENTATIONS OF AmPaM................................................................................23
6.1 Due Organization...............................................................................24
6.2 Authorization..................................................................................24
6.3 Capital Stock of AmPaM.........................................................................24
6.4 Transactions in Capital Stock..................................................................24
6.5 Subsidiaries...................................................................................25
6.6 Financial Statements...........................................................................25
6.7 Liabilities and Obligations....................................................................25
6.8 Conformity with Law; Litigation................................................................25
6.9 No Violations..................................................................................26
6.10 Validity of Obligations........................................................................27
6.11 AmPaM Stock....................................................................................27
6.12 AmPaM Notes....................................................................................28
6.13 No Side Agreements.............................................................................28
6.14 Business; Real Property; Material Agreements...................................................28
6.15 Relations with Governments.....................................................................28
6.16 Disclosure.....................................................................................28
6.17 Other Agreements...............................................................................29
7. COVENANTS PRIOR TO CLOSING..............................................................................29
7.1 Access and Cooperation; Due Diligence; Transfer of Real Estate.................................29
7.2 Conduct of Business Pending Closing............................................................30
7.3 Prohibited Activities..........................................................................31
7.4 No Shop........................................................................................32
7.5 Agreements.....................................................................................32
7.6 Notification of Certain Matters................................................................32
7.7 Amendment of Schedules.........................................................................33
7.8 Further Assurances.............................................................................33
7.9 Authorized Capital.............................................................................33
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7.10 Compliance with the Hart-Scott Act.............................................................33
8. CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDERS
AND COMPANY.............................................................................................34
8.1 Representations and Warranties; Performance of Obligations.....................................34
8.2 Satisfaction...................................................................................34
8.3 No Litigation..................................................................................34
8.4 Opinion of Counsel.............................................................................34
8.5 Consents and Approvals.........................................................................34
8.6 Good Standing Certificates.....................................................................35
8.7 No Material Adverse Change.....................................................................35
8.8 Secretary's Certificate........................................................................35
8.9 Tax Matters....................................................................................35
8.10 Other Founding Companies.......................................................................35
8.11 Company Release of Stockholders................................................................35
8.12 Sterling City Capital Transfer Restrictions....................................................36
8.13 Election of Class Executive Officer............................................................36
8.14 Funding Availability...........................................................................36
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF AmPaM............................................................36
9.1 Representations and Warranties; Performance and Obligations....................................36
9.2 No Litigation..................................................................................36
9.3 Secretary's Certificate........................................................................36
9.4 No Material Adverse Effect.....................................................................37
9.5 Stockholders' Release..........................................................................37
9.6 Satisfaction...................................................................................37
9.7 Termination of Related Party Agreements........................................................37
9.8 Opinion of Counsel.............................................................................37
9.9 Consents and Approvals.........................................................................38
9.10 Good Standing Certificates.....................................................................38
9.11 Funding Availability...........................................................................38
9.12 FIRPTA Certificate.............................................................................38
9.13 Resignations of Directors and Officers.........................................................38
10. COVENANTS OF AmPaM AND THE STOCKHOLDERS AFTER CLOSING...................................................38
10.1 Release From Guarantees; Repayment of Certain Obligations......................................38
10.2 Preservation of Tax and Accounting Treatment...................................................39
10.3 Preparation and Filing of Tax Returns; Payment of Taxes........................................39
10.4 Directors......................................................................................40
10.5 Legal Opinions.................................................................................40
11. INDEMNIFICATION.........................................................................................40
11.1 General Indemnification by the Stockholders....................................................40
11.2 Indemnification by AmPaM.......................................................................42
11.3 Third Person Claims............................................................................42
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11.4 Exclusive Remedy...............................................................................43
11.5 Limitations on Indemnification.................................................................44
12. TERMINATION OF AGREEMENT................................................................................45
12.1 Termination....................................................................................45
12.2 Procedure and Effect of Termination............................................................46
13. NONCOMPETITION..........................................................................................46
13.1 Prohibited Activities..........................................................................46
13.2 Prohibited Activities (Baker)..................................................................47
13.3 Damages........................................................................................49
13.4 Reasonable Restraint...........................................................................49
13.5 Severability; Reformation......................................................................49
13.6 Independent Covenant...........................................................................49
13.7 Materiality....................................................................................50
14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION...............................................................50
14.1 Stockholders...................................................................................50
14.2 AmPaM..........................................................................................50
14.3 Damages........................................................................................51
14.4 Survival.......................................................................................51
14.5 Return of Information..........................................................................51
15. TRANSFER RESTRICTIONS...................................................................................51
15.1 Transfer Restrictions Relating to AmPaM Stock and AmPaM Notes..................................51
15.2 Transfer Restrictions Relating to Additional Consideration.....................................53
16. FEDERAL SECURITIES ACT REPRESENTATIONS..................................................................53
16.1 Compliance with Law............................................................................53
16.2 Economic Risk; Sophistication..................................................................54
16.3 Reliance by AmPaM..............................................................................54
17. REGISTRATION RIGHTS.....................................................................................54
17.1 Piggyback Registration Rights..................................................................54
17.2 Registration Procedures........................................................................55
17.3 Indemnification................................................................................58
17.4 Underwriting Agreement.........................................................................59
17.5 Transfer of Rights.............................................................................59
17.6 Rule 144 Reporting.............................................................................59
18. REDEMPTION OF AmPaM STOCK...............................................................................60
18.1 Redemption Trigger.............................................................................60
18.2 Minimum Redemption; Limitations................................................................60
18.3 Notice; Exercise...............................................................................61
18.4 Additional Redemptions.........................................................................61
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18.5 Termination of Redemption Obligation...........................................................61
19. GENERAL.................................................................................................61
19.1 Cooperation....................................................................................61
19.2 Successors and Assigns.........................................................................62
19.3 Entire Agreement...............................................................................62
19.4 Counterparts...................................................................................62
19.5 Brokers and Agent..............................................................................62
19.6 Expenses.......................................................................................62
19.7 Notices........................................................................................63
19.8 Governing Law..................................................................................64
19.9 Survival of Representations and Warranties.....................................................64
19.10 Exercise of Rights and Remedies................................................................64
19.11 Time...........................................................................................64
19.12 Reformation and Severability...................................................................64
19.13 Remedies Cumulative............................................................................65
19.14 Captions.......................................................................................65
19.15 Amendments and Waivers.........................................................................65
19.16 Mediation and Arbitration......................................................................65
19.17 Information Provided for Private Placement Memorandum..........................................65
19.18 Effective Date of Agreement....................................................................66
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ANNEXES
Annex I - Consideration to Be Paid to Stockholders
Annex II - Amended and Restated Certificate of Incorporation and
By-Laws of AmPaM
Annex III - Form of Opinion of Counsel to AmPaM
Annex IV - Form of Tax Opinion
Annex V - Form of Opinion of Counsel to Company and Stockholders
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SCHEDULES
2.1 Board of Directors
2.2 Officers
5.1 Due Organization
5.2 Authorization
5.3 Capital Stock of the Company
5.4 Transactions in Capital Stock; Organization Accounting
5.5 No Bonus Shares
5.6 Subsidiaries; Ownership in Other Entities
5.7 Predecessor Status; etc
5.8 Spin-off by the Company
5.9 Financial Statements
5.10 Liabilities and Obligations
5.11 Accounts and Notes Receivable
5.12 Licenses; Intellectual Property (Schedules 5.12(a)(1), 5.12(a)(2), 5.12(b)(1) and 5.12(b)(2))
5.13 Environmental Matters
5.14 Personal Property
5.15 Significant Customers; Material Contracts and Commitments
(Schedules 5.15(a), 5.15(b) and 5.15 (c))
5.16 Real Property
5.17 Insurance
5.18 Compensation; Employment Agreements; Labor Matters
5.19 Employee Plans
5.20 Compliance with ERISA
5.21 Conformity with Law; Litigation
5.22 Taxes (Schedules 5.22(a) and 5.22(b))
5.23 No Violations, No Consents Required, Etc.
(Schedules 5.23(a), 5.23(b), 5.23(c) and 5.23(e))
5.24 Government Contracts
5.25 Absence of Changes
5.26 Deposit Accounts; Powers of Attorney
5.30 No Warranties or Insurance
5.31 Interest in Customers and Suppliers and Related Party Transactions
5.33 Authority; Ownership (Schedules 5.33(a) and 5.33(b))
6.9 No Violations
7.1 Access and Cooperation; Due Diligence; Transfer of Real Estate
7.2 Conduct of Business Pending Closing
7.3 Prohibited Activities
7.5 Agreements
8.11 Employment Agreements
9.7 Termination of Related Party Agreements
10.1 Release From Guarantees; Repayment of Certain Obligations
16.2 Non-accredited Investors
18.5 Brokers and Agents
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ACQUISITION AGREEMENT
THIS ACQUISITION AGREEMENT (the "Agreement") is made as of the 11th
day of February, 1999 by and among AMERICAN PLUMBING & MECHANICAL, INC., a
Delaware corporation ("AmPaM"), R.C.R. PLUMBING, INC., a California corporation
(the "Company"), and the stockholders listed on the signature pages of this
Agreement (the "Stockholders"), which are all the stockholders of the Company.
RECITALS
WHEREAS, the Company is engaged in the plumbing and mechanical
services business;
WHEREAS, as of the date hereof, the Stockholders own, and as of the
Closing Date the Stockholders will own, all of the issued and outstanding
capital stock of the Company (the "Company Stock");
WHEREAS, AmPaM is entering into other separate agreements
simultaneously with this Agreement that are substantially the same as this
Agreement (the "Other Agreements"), each of which is entitled "Acquisition
Agreement," with each of the Other Founding Companies (as defined herein) and
their respective stockholders in order for AmPaM to acquire additional
companies engaged in the plumbing and mechanical services business;
WHEREAS, this Agreement and the Other Agreements constitute the "AmPaM
Plan of Organization;"
WHEREAS, the Stockholders and the boards of directors and the
stockholders of AmPaM, and each of the Other Founding Companies that are
parties to the Other Agreements, have approved and adopted the AmPaM Plan of
Organization as an integrated plan pursuant to which the Stockholders and the
stockholders of each of the other Founding Companies will contribute the
capital stock of each of the Founding Companies to AmPaM, and the Stockholders
and the stockholders of each of the other Founding Companies will acquire the
stock of AmPaM (but not cash or other property) as a tax-free transfer of
property under Section 351 of the Code;
WHEREAS, in consideration of the agreements of the Other Founding
Companies pursuant to the Other Agreements, the Stockholders have approved this
Agreement as part of the AmPaM Plan of Organization in order to transfer all of
the issued and outstanding capital stock of the Company to AmPaM; and
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements, representations, warranties, provisions and covenants herein
contained, the parties hereto hereby agree as follows:
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Unless the context otherwise requires, capitalized terms used in this
Agreement or in any schedule attached hereto and not otherwise defined shall
have the following meanings for all purposes of this Agreement:
"1933 Act" means the Securities Act of 1933, as amended.
"Acquired Party" means the Company, any subsidiary of the Company and
any member of a Relevant Group.
"Affiliates" means with respect to any person or entity, any other
person or entity that directly or indirectly, controls, is controlled by, or is
under common control with such person or entity.
"AmPaM" has the meaning set forth in the first paragraph of this
Agreement.
"AmPaM Charter Documents" has the meaning set forth in Section 6.1.
"AmPaM Plan of Organization" has the meaning set forth in the recitals
of this Agreement.
"AmPaM Stock" means the common stock, par value $.01 per share, of
AmPaM.
"AmPaM Notes" means those notes issued by AmPaM to the Stockholders as
a portion of the consideration to be received hereunder and in substantially
the form to Annex I as Appendix A.
"Balance Sheet Date" has the meaning set forth in Section 5.9.
"Charter Documents" has the meaning set forth in Section 5.1.
"Closing" has the meaning set forth in Section 4.
"Closing Date" has the meaning set forth in Section 4.
"Code" means the Internal Revenue Code of 1986, as amended.
"Company" has the meaning set forth in the first paragraph of this
Agreement.
"Company Stock" has the meaning set forth in the recitals of this
Agreement.
"Delaware GCL" means the General Corporation Law of the State of
Delaware.
"Environmental Laws" has the meaning set forth in Section 5.13(b).
"Expiration Date" has the meaning set forth in Section 5(A) and
Section 6, as applicable.
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"Founding Companies" means the following companies:
Christianson Enterprises, Inc., a Texas corporation;
Christianson Services, Inc., a Texas corporation;
GGR Leasing Corporation, a Texas corporation;
J.A. Croson Company of Florida, a Florida corporation;
J.A. Croson Company, an Ohio corporation;
Franklin Fire Sprinkler Company, an Ohio corporation;
Keith Riggs Plumbing, Inc., an Arizona corporation;
Miller Mechanical Contractors, Inc., a Georgia corporation;
Nelson Mechanical Contractors, Inc., a Florida corporation;
Power Plumbing Inc., a Delaware corporation;
R.C.R. Plumbing, Inc., a California corporation;
Sherwood Mechanical, Inc., a California corporation; and
Teepe's River City Mechanical, Inc., an Ohio corporation.
"GAAP" means generally accepted accounting principles as consistently
applied in the United States.
"Hart-Scott Act" means the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended.
"Hazardous Substance" has the meaning set forth in Section 5.13(c).
"IPO" means a firm commitment underwritten initial public offering of
AmPaM Stock managed by one or more nationally recognized national investment
banking firms.
"known" or "knowledge," when used in reference to a statement
regarding the existence or absence of facts in this Agreement, is intended by
the parties to mean that the only information to be attributed to such person
is information actually known to (a) the person in the case of an individual,
(b) in the case of a corporation or other entity other than the Company, an
officer or director of such corporation or entity or (c) in the case of the
Company and its Subsidiaries, an officer of the Company listed on Schedule 2.2
hereto, except for David Baggett.
"Material Adverse Change" means a material adverse change in the
business, operations, properties, assets or condition (financial or otherwise),
of the subject entity and its subsidiaries taken as a whole.
"Material Adverse Effect" means a material adverse effect on the
business, operations, properties, assets or condition (financial or otherwise),
of the subject entity and its subsidiaries taken as a whole.
"Material Documents" has the meaning set forth in Section 5.23.
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"Ordinary Course of Business" means the ordinary course of business
consistent with past customs and practice (including with respect to quantity
and frequency).
"Other Agreements" has the meaning set forth in the recitals of this
Agreement.
"Other Founding Companies" means all of the Founding Companies other
than the Company.
"Plans" has the meaning set forth in Section 5.19.
"Private Placement Memorandum" means the Private Placement Memorandum,
dated as of February 11, 1999, provided to each Stockholder prior to the
execution and delivery of this Agreement which sets forth certain information
relating to the transactions contemplated by this Agreement and the Other
Agreements.
"Qualified Plans" has the meaning set forth in Section 5.20.
"Relevant Group" means the Company and any affiliated, combined,
consolidated, unitary or similar group of which the Company is or was a member.
"Restricted Common Stock" has the meaning set forth in Section 1.3(ii).
"Returns" means any returns, reports or statements (including any
information returns) required to be filed for purposes of a particular Tax.
"Schedule" means each Schedule attached hereto, which shall reference
the relevant sections of this Agreement, on which parties hereto disclose
information as part of their respective representations, warranties and
covenants.
"SEC" means the United States Securities and Exchange Commission.
"State of Incorporation" means the State of California.
"Stockholders" has the meaning set forth in the first paragraph of
this Agreement.
"Subsidiaries" means with respect to a person or entity, any
corporation or other entity in which such person or entity owns a 5% or greater
ownership interest.
"Tax" or "Taxes" means all federal, state, local or foreign net or
gross income, gross receipts, net proceeds, sales, use, ad valorem, value
added, franchise, withholding, employment, excise, property, deed, stamp,
alternative or add-on minimum, or other taxes, assessments, duties, fees,
levies or other governmental charges, whether disputed or not, together with
any interest, penalties, additions to tax or additional amounts with respect
thereto.
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1. ACQUISITION OF STOCK
1.1 ACQUISITION. Upon the terms and subject to the conditions
contained in this Agreement and in reliance upon the representations,
warranties, covenants and agreements contained in this Agreement, on the
Closing Date, the Stockholders shall convey and transfer to AmPaM all of the
issued and outstanding shares of Company Stock as set forth in Annex I hereto.
1.2 CONSIDERATION. The consideration for the Company Stock shall be as
set forth on Annex I to this Agreement.
1.3 CERTAIN INFORMATION WITH RESPECT TO THE CAPITAL STOCK OF THE
COMPANY AND AMPAM. The respective designations and numbers of outstanding
shares and voting rights of each class of outstanding capital stock of the
Company and AmPaM as of the date of this Agreement are as follows:
(i) as of the date of this Agreement, the authorized and
outstanding Company Stock is as set forth on Schedule 5.3 hereto; and
(ii) immediately prior to the Closing Date, the authorized
capital stock of AmPaM will consist of (A) 100,000,000 shares of AmPaM
Stock, of which the number of issued and outstanding shares will be
set forth in the Private Placement Memorandum, (B) 10,000,000 shares
of redeemable preferred stock, of which the number of issued and
outstanding shares will be set forth in the Private Placement
Memorandum, and (C) 5,000,000 shares of Restricted Voting Common
Stock, $.01 per value (the "Restricted Common Stock"), all of which
will be issued and outstanding except as otherwise set forth in the
Private Placement Memorandum.
2. BOARD OF DIRECTORS AND OFFICERS OF THE COMPANY
2.1 BOARD OF DIRECTORS. The Company and the Stockholders shall take
action, including solicitation of resignation of directors, necessary so that
the Board of Directors of the Company as of the Closing Date shall consist only
of the persons identified on Schedule 2.1 hereto.
2.2 OFFICERS. The Company and the Stockholders shall take action,
including solicitation of resignation of officers, necessary so that the
officers of the Company as of the Closing Date shall consist only of the
persons identified on Schedule 2.2 hereto.
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3. DELIVERY OF CONSIDERATION
3.1 STOCKHOLDERS' CONSIDERATION. On the Closing Date, the Stockholders
shall, upon surrender of certificates evidencing the Company Stock, receive
from AmPaM the respective number of shares of AmPaM Stock, the amount of cash
and the principal amount of AmPaM Notes described on Annex I hereto specified
with respect to each such Stockholder as payable on the Closing Date. All
payments of cash shall be made by certified check or wire transfer of
immediately available funds. Consideration consisting of AmPaM Notes shall be
substantially in the form of Appendix A to Annex I.
3.2 STOCKHOLDERS' DELIVERIES. The Stockholders shall deliver at the
Closing the certificates representing Company Stock, duly endorsed in blank by
the Stockholders, or accompanied by blank stock powers, and with all necessary
transfer tax and other revenue stamps, acquired at the Stockholders' expense,
affixed and canceled. The Stockholders agree promptly to cure any deficiencies
with respect to the endorsement of the stock certificates or other documents of
conveyance with respect to such Company Stock or with respect to the stock
powers accompanying any Company Stock.
4. CLOSING
The consummation of the transactions contemplated by Section 3 (the
"Closing") shall take place on March 31, 1999 or such date not later than May
31, 1999 as AmPaM shall determine by giving written notice of such other date
as provided in Section 18.7 (the "Closing Date") at the offices of Andrews &
Kurth L.L.P., 4200 Chase Tower, 600 Travis, Houston, Texas 77002.
5. REPRESENTATIONS AND WARRANTIES OF THE COMPANY
(A) REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
Except as set forth in the disclosure schedules attached hereto and
except as otherwise qualified below, the Company represents and warrants that
all of the following representations and warranties in this Section 5(A) are
true at the date of this Agreement and, subject to Section 7.7 hereto, shall be
true at the time of the Closing, and that such representations and warranties
shall survive the Closing Date for a period of eighteen months (the last day of
such period being the "Expiration Date"), except that the representations and
warranties set forth in Sections 5.3, 5.22 and 5.32 hereof shall survive until
such time as the applicable statute of limitations period has run, which shall
be deemed to be the Expiration Date for the representations and warranties set
forth in Sections 5.3, 5.22 and 5.32. For purposes of this Section 5, the term
"Company" shall mean and refer to the Company and all of its Subsidiaries, if
any, and any reference to a Material Adverse Effect on the Company or Material
Adverse Change with respect to the Company shall mean the Company and its
Subsidiaries, taken as a whole. Except as expressly set forth in this
Agreement, the Company expressly disclaims any representation or warranty
(express, implied or otherwise) relating to the
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Company and any Subsidiary thereof including, without limitation, any warranty
of merchantability or fitness for a particular purpose.
5.1 DUE ORGANIZATION. The Company is a corporation duly incorporated
and organized, validly existing and in good standing under the laws of the
State of Incorporation, and has the requisite power and authority to carry on
its business as it is now being conducted. The Company is duly qualified or
authorized to do business and is in good standing in each jurisdiction in which
the nature of its business or the ownership or leasing of its properties makes
such qualification or authorization necessary except where the failure to be so
qualified or authorized to do business would not have a Material Adverse Effect
on the Company. Schedule 5.1 sets forth a list of all states in which the
Company is authorized or qualified to do business, which list indicates which
of such entities is authorized or qualified to do business in such states.
True, complete and correct copies of the Certificate or Articles of
Incorporation and By-laws, each as amended, of the Company (the "Charter
Documents") are all attached to Schedule 5.1. The Company has delivered to
AmPaM complete and correct copies of (i) the stock records of the Company and
(ii) all minutes of meetings, written consents and other evidence, if any, of
deliberations of or actions taken by the Company's Board of Directors, any
committees of the Board of Directors and stockholders during the last five
years.
5.2 AUTHORIZATION. (i) The officers or other representatives of the
Company executing this Agreement have the authority to enter into and bind the
Company to the terms of this Agreement and (ii) the Company has the full legal
right, power and authority to enter into this Agreement and consummate the
transactions contemplated hereby. Copies of the most recent resolutions adopted
by the Board of Directors of the Company and the most recent resolutions
adopted by the Stockholders, which approve this Agreement and the transactions
contemplated hereby in all respects, certified by the Secretary or an Assistant
Secretary of the Company as being in full force and effect on the date hereof,
are attached hereto as Schedule 5.2.
5.3 CAPITAL STOCK OF THE COMPANY. The authorized capital stock of the
Company and each of its Subsidiaries is as set forth on Schedule 5.3(a). All of
the issued and outstanding shares of the capital stock of the Company are owned
by the Stockholders in the amounts set forth in Schedule 5.3(a). Except as set
forth on Schedule 5.3(a), all of the issued and outstanding capital stock of
each Subsidiary is owned by the Company. All of the issued and outstanding
shares of the capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable, are owned of record by the
Stockholders and further, such shares were offered, issued, sold and delivered
by the Company in compliance with all applicable state and Federal laws
concerning the issuance of securities. Further, none of such shares were issued
in violation of any preemptive rights of any past or present stockholder.
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5.4 TRANSACTIONS IN CAPITAL STOCK. Except as set forth on Schedule
5.4(a), the Company has not acquired or redeemed any shares of capital stock of
the Company since January 1, 1996. Except as set forth on Schedule 5.4(b), (i)
no option, warrant, call, conversion right or commitment of any kind exists
which obligates the Company to issue any of its authorized but unissued capital
stock; (ii) the Company has no obligation (contingent or otherwise) to
purchase, redeem or otherwise acquire any of its equity securities or any
interests therein or to pay any dividend or make any distribution in respect
thereof; and (iii) neither the voting stock structure of the Company nor the
relative ownership of shares among any of its Stockholders has been altered or
changed in contemplation of the AmPaM Plan of Organization. There are no voting
trusts, proxies or other agreements or understandings to which the Company is a
party or is bound with respect to the voting of any shares of capital stock of
the Company.
5.5 NO BONUS SHARES. Except as set forth on Schedule 5.5, none of the
shares of Company Stock was issued pursuant to awards, grants or bonuses in
contemplation of the AmPaM Plan of Organization.
5.6 SUBSIDIARIES; OWNERSHIP IN OTHER ENTITIES. Except as set forth on
Schedule 5.6(a), the Company has no Subsidiaries. Except as set forth in
Schedule 5.6(b), the Company does not presently own, of record or beneficially,
or control, directly or indirectly, any capital stock, securities convertible
into capital stock or any other equity interest in any corporation, association
or business entity nor is the Company, directly or indirectly, a participant in
any joint venture, partnership or other non-corporate entity.
5.7 PREDECESSOR STATUS; ETC. Set forth on Schedule 5.7(a) is a list of
all predecessor companies of the Company, including the names of any entities
acquired by the Company (by stock purchase, merger or otherwise) or owned by
the Company or from whom the Company previously acquired material assets, in
any case, from the earliest date upon which any Stockholder acquired his or her
stock in any Company. Except as disclosed on Schedule 5.7(b), the Company has
not been, within such period of time, a subsidiary or division of another
corporation or a part of an acquisition which was later rescinded.
5.8 SPIN-OFF BY THE COMPANY. Except as set forth on Schedule 5.8,
there has not been any sale, spin-off or split-up of material assets of either
the Company or any other person or entity that is an Affiliate of the Company
since January 1, 1996.
5.9 FINANCIAL STATEMENTS. Attached hereto as Schedule 5.9 is a copy
of:
(i) the balance sheets of the Company as of December 31, 1996
and 1997 and the related statements of operations, stockholders'
equity and cash flows for the three-year period ended December 31,
1997, together with the related notes and schedules (such balance
sheets, the related statements of operations, stockholders' equity and
cash flows and the related notes and schedules are referred to herein
as the "Year-end Financial Statements");
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(ii) the balance sheet of the Company as of June 30, 1998 and
the related statements of operations, stockholders' equity and cash
flows for the six-month periods ended June 30, 1997 and 1998, together
with the related notes and schedules (such balance sheets, the related
statements of operations, stockholders' equity and cash flows and the
related notes and schedules are referred to herein as the "Six-Month
Interim Financial Statements");
(iii) the balance sheet of the Company as of September 30,
1998 (the "Balance Sheet Date") and the related statements of
operations, stockholders' equity and cash flows for the nine-month
periods ended September 30, 1997 and 1998 (such balance sheets, the
related statements of operations, stockholders' equity and cash flows
are referred to herein as the "Nine-Month Interim Financial
Statements"); and
(iv) the income statement of the Company for the 12-month
period ended June 30, 1998 (the "Valuation Income Statement").
The Year-end Financial Statements, the Six-Month Interim Financial Statements,
the Nine-Month Interim Financial Statements and the Valuation Income Statement
are collectively called the "Financial Statements". The Financial Statements,
including those included in the Private Placement Memorandum, have been
prepared in accordance with GAAP applied on a consistent basis and fairly
present the financial position of the Company as of the dates thereof and the
results of its operations and changes in financial position for the periods
then ended, subject, in the case of the Six-Month Interim Financial Statements
and the Nine-Month Interim Financial Statements, to normal year-end audit
adjustments and any other adjustments described therein and the absence of
certain footnote disclosures.
5.10 LIABILITIES AND OBLIGATIONS. Schedule 5.10(a) sets forth an
accurate list as of the Balance Sheet Date of (i) all material liabilities of
the Company which are not reflected on the balance sheet of the Company at the
Balance Sheet Date or otherwise reflected in the Company Financial Statements
at the Balance Sheet Date which by their nature would be required in accordance
with GAAP to be reflected in the balance sheet, and (ii) all loan agreements,
indemnity or guaranty agreements, bonds, mortgages, pledges or other security
agreements to which the Company is a party or by which its properties may be
bound other than bid bonds and performance bonds made in the Ordinary Course of
Business. Except as set forth on Schedule 5.10(b), since the Balance Sheet
Date, the Company has not incurred any material liabilities or obligations of
any kind, character or description, whether accrued, absolute, secured or
unsecured, contingent or otherwise, other than liabilities incurred in the
Ordinary Course of Business. The Company has also delivered to AmPaM, on
Schedule 5.10(c), a list of contingent liabilities related to pending
litigation or litigation that has been threatened in writing, or other material
liabilities which are not fixed or otherwise accrued or reserved. For each such
contingent liability of the Company or liability of the Company for which the
amount is not fixed or is contested, the Company has provided to AmPaM the
following information:
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(i) a summary description of the liability together with the
following:
(a) copies of all relevant documentation in the
possession of the Company or its directors, officers
or stockholders relating thereto;
(b) amounts claimed and any other action or relief
sought; and
(c) name of claimant and all other parties to the claim,
suit or proceeding;
(ii) the name of each court or agency before which such
claim, suit or proceeding is pending;
(iii) the date such claim, suit or proceeding was instituted;
and
(iv) a good faith estimate of the maximum amount, if any,
which the Company expects, based on information available, is likely
to become payable with respect to each such liability and the amount,
if any, accrued or reserved for each such potential liability on the
Financial Statements.
AmPaM acknowledges that all estimates referred to above and set forth on
Schedule 5.10(c) are only good faith estimates, and that the Company and the
Stockholders expressly do not represent or warrant that the actual amounts of
such liabilities will be equal to, or more or less than, the amounts of such
estimates.
5.11 ACCOUNTS AND NOTES RECEIVABLE. Schedule 5.11(a) sets forth an
accurate list, in all material respects, of the accounts and notes receivable
of the Company, as of the Balance Sheet Date, including any such amounts which
are not reflected in the balance sheet as of the Balance Sheet Date, and
including all receivables from and advances to employees and the Stockholders,
which are identified as such. Schedule 5.11(a) also sets forth a materially
accurate aging of all accounts and notes receivable as of the Balance Sheet
Date showing amounts due in 30-day aging categories. Except to the extent
reflected on Schedule 5.11(b), such accounts, notes and other receivables are
collectible in the amounts shown on Schedule 5.11(a), net of reserves reflected
in the balance sheet as of the Balance Sheet Date.
5.12 LICENSES; INTELLECTUAL PROPERTY. (a) The Company or its employees
hold all licenses, franchises, permits and other governmental authorizations
("Licenses") necessary to conduct the business of the Company, the absence of
which would cause a Material Adverse Effect on the Company, and the Company has
delivered to AmPaM a list that is accurate, in all material respects, and
summary description (which is set forth on Schedule 5.12(a)(1)) of all such
Licenses. At or prior to the Closing, all such Licenses owned or held by any
employee of the Company will be assigned or licensed to the Company for no
additional consideration. The Licenses listed on Schedule 5.12(a)(1) are valid,
and the Company has not received any notice that any person intends to cancel,
terminate or not renew any such License. The Company has conducted and is
conducting its business in compliance in all material respects with the
requirements, standards, criteria and
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conditions set forth in the Licenses listed on Schedule 5.12(a)(1) and is not
in violation of any of the foregoing in any material respect. Except as
specifically provided in Schedule 5.12(a)(2), the consummation by the Company
of the transactions contemplated by this Agreement will not result in a default
under or a breach or violation of, or adversely affect the rights and benefits
afforded to the Company by, any such Licenses.
(b) The Company owns or possesses adequate licenses or other rights to
use (without making any payment or granting rights to any person in exchange)
all patents, patent applications, trademarks, copyrights, service marks and
trade names (collectively, the "Intellectual Property") necessary to conduct
its business as currently conducted. A description of any Intellectual Property
licensed by the Company, including the material terms of any such license, is
described on Schedule 5.12(b)(1). Neither the validity of the Intellectual
Property nor the title thereto or use thereof by the Company is being
questioned in any pending litigation, and the conduct of the Company's
business, as currently conducted, does not conflict with licenses, copyrights,
uncopyrighted works, trade marks, service marks, trade names, trade name
rights, patents, patent rights, unpatented inventions or trade secrets of
others. Neither the validity of the Intellectual Property nor the title thereto
or use thereof by the Company is being questioned in any pending or, to the
knowledge of the Company, threatened infringement claims or litigation, and the
conduct of the Company's business, as now conducted, does not conflict with
licenses, copyrights, uncopyrighted works, trade marks, service marks, trade
names, trade name rights, patents, patent rights, unpatented inventions or
trade secrets of others. Except as specifically provided in Schedule
5.12(b)(2), the consummation by the Company of the transactions contemplated by
this Agreement will not adversely affect the rights and benefits afforded to
the Company by any such Intellectual Property.
5.13 ENVIRONMENTAL MATTERS. (a) Except as set forth in Schedule 5.13
attached hereto, (i) the Company has conducted its businesses in compliance in
all material respects with all applicable Environmental Laws, including,
without limitation, having all environmental permits, licenses and other
approvals and authorizations necessary for the operation of its business as
presently conducted, except where the failure to have such permit, license,
approval or authorization would not have a Material Adverse Effect on the
Company, (ii) none of the properties owned by the Company contain any Hazardous
Substance as a result of any activity of the Company in amounts exceeding the
levels permitted by applicable Environmental Laws, except where amounts in
excess of such levels would not have a Material Adverse Effect on the Company,
(iii) the Company has not received any notices, demand letters or requests for
information from any Federal, state, local or foreign governmental entity or
third party indicating that the Company may be in violation of, or liable
under, any Environmental Law in connection with the ownership or operation of
its business, (iv) there are no civil, criminal or administrative actions,
suits, demands, claims, hearings, investigations or proceedings pending or, to
the knowledge of the Company, threatened, against the Company relating to any
violation, or alleged violation, of any Environmental Law, except where such
violation would not have a Material Adverse Effect on the Company, (v) no
reports have been filed, or are required to be filed, by the Company concerning
the release of any Hazardous Substance or the threatened or actual violation of
any Environmental Law, (vi) no Hazardous Substance has
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been disposed of, released or transported in violation of any applicable
Environmental Law from any properties owned by the Company as a result of any
activity of the Company during the time such properties were owned, leased or
operated by the Company, (vii) there have been no environmental investigations,
studies, audits, tests, reviews or other analyses regarding compliance or
non-compliance with any applicable Environmental Law conducted by or which are
in the possession of the Company relating to the activities of the Company
which are not listed on Schedule 5.13 attached hereto prior to the date hereof,
(viii) to the knowledge of the Company, (A) there are no underground storage
tanks on, in or under any properties owned by the Company and (B) no
underground storage tanks have been closed or removed from any of such
properties during the time such properties were owned, leased or operated by
the Company which are not listed on Schedule 5.13, (ix) to the knowledge of the
Company, (A) there is no asbestos or asbestos-containing material present in
any material quantity in any of the properties owned by the Company, and (B) no
asbestos has been removed from any of such properties during the time such
properties were owned, leased or operated by the Company, and (x) neither the
Company nor any of its properties are subject to any material liabilities or
expenditures (fixed or contingent) relating to any suit, settlement, court
order, administrative order, regulatory requirement, judgment or claim asserted
or arising under any Environmental Law.
(b) As used herein, "Environmental Law" means, as of the Closing Date,
any Federal, state, local or foreign law, statute, ordinance, rule, regulation,
code, license, permit, authorization, approval, consent, order, judgment,
decree, injunction or agreement with any governmental entity to which the
Company is a party or subject relating to (x) the protection, preservation or
restoration of the environment (including, without limitation, air, water
vapor, surface water, groundwater, drinking water supply, surface land,
subsurface land, plant and animal life or any other natural resource) or to
human health or safety or (y) the exposure to, or the use, storage, recycling,
treatment, generation, transportation, processing, handling, labeling,
production, release or disposal of Hazardous Substances, in each case as
amended and as in effect on the Closing Date. The term Environmental Law
includes, without limitation, (i) the Federal Comprehensive Environmental
Response Compensation and Liability Act of 1980, the Superfund Amendments and
Reauthorization Act, the Federal Water Pollution Control Act of 1972, the
Federal Clean Air Act, the Federal Clean Water Act, the Federal Resource
Conservation and Recovery Act of 1976 (including the Hazardous and Solid Waste
Amendments thereto), the Federal Solid Waste Disposal and the Federal Toxic
Substances Control Act, the Federal Insecticide, Fungicide and Rodenticide Act,
the Federal Occupational Safety and Health Act of 1970, each as amended and as
in effect on the Closing Date, and (ii) any common law or equitable doctrine
(including, without limitation, injunctive relief and tort doctrines such as
negligence, nuisance, trespass and strict liability) that may impose liability
or obligations for injuries or damages due to, or threatened as a result of,
the presence of, effects of or exposure to any Hazardous Substance.
(c) As used herein, "Hazardous Substance" means any substance
presently listed, defined, designated or classified as hazardous, toxic,
radioactive, or dangerous, or otherwise regulated, under any Environmental Law.
Hazardous Substance includes any substance to which exposure is regulated by
any government authority or any Environmental Law including, without
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limitation, any toxic waste, pollutant, contaminant, hazardous substance, toxic
substance, hazardous waste, special waste, industrial substance or petroleum or
any derivative or by-product thereof, radon, radioactive material, asbestos or
asbestos-containing material, urea formaldehyde foam insulation, lead or
polychlorinated biphenyls.
5.14 PERSONAL PROPERTY. The Company has delivered to AmPaM an accurate
list (which is set forth on Schedule 5.14(a)) of (x) all personal property
material to the operations of the Company as of the Balance Sheet Date included
in "plant, property and equipment" on the balance sheet of the Company as of
such date, (y) all other items of personal property owned by the Company with
an individual value in excess of $15,000 (i) as of the Balance Sheet Date and
(ii) acquired since the Balance Sheet Date and (z) all material leases and
agreements in respect of personal property, including, in the case of each of
(x), (y) and (z), (1) true, complete and correct copies of all such leases and
(2) an indication as to which assets are currently owned, or were formerly
owned, by Stockholders, relatives of Stockholders, or Affiliates of the
Company. Except as set forth on Schedule 5.14(b), (i) all personal property
material to, and used by, the Company in its business is either owned by the
Company or leased by the Company pursuant to a lease included on Schedule
5.14(a), (ii) all of the personal property listed on Schedule 5.14(a) or
replacement property thereof is in working order and condition, ordinary wear
and tear excepted and (iii) all leases and agreements included on Schedule
5.14(a) are in full force and effect and constitute valid and binding
agreements of the Company, in each case in accordance with their respective
terms.
5.15 SIGNIFICANT CUSTOMERS; MATERIAL CONTRACTS AND COMMITMENTS.
(a) The Company has delivered to AmPaM a materially accurate list
(which is set forth on Schedule 5.15(a)(1)) of all customers (persons or
entities) representing 5% or more of the Company's annual revenues for any
period covered by any of the Financial Statements. Except to the extent set
forth on Schedule 5.15(a)(2), none of such customers has canceled or, to the
knowledge of the Company, are currently threatening to cancel a currently
effective contract with the Company.
(b) The Company has listed on Schedule 5.15(b) all material contracts,
commitments and similar agreements to which the Company is a party or by which
it or any of its properties are bound (including, but not limited to, contracts
with customers listed on Schedule 5.15(a), joint venture or partnership
agreements, contracts with any labor organizations, strategic alliances and
options to purchase land), other than agreements listed on Schedules 5.10(a),
Schedule 5.14(a) or Schedule 5.16(a), (a) in existence as of the Balance Sheet
Date and (b) entered into since the Balance Sheet Date, and in each case has
delivered or made available to AmPaM true, complete and correct copies of such
agreements. For purposes of the preceding sentence, a contract, commitment or
similar agreement is "material" if it (i) has a term of more than one year
(other than contracts, commitments or agreements that are cancelable without
liability or penalty within 30 days of notice from the Company of cancellation
or that can be terminated by the Company without material penalty upon notice
of 30 days or less) or (ii) requires the payment by or to the Company of more
than $100,000 during any 12-month period. Except for expenditures in the
ordinary course of
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business, the Company has also indicated on Schedule 5.15(b) a summary
description of all plans or projects involving the opening of new operations,
expansion of existing operations, or the acquisition of any personal property,
business or assets requiring, in any event, the payment of more than $50,000 by
the Company during any 12-month period.
(c) Except as set forth on Schedule 5.15(c), the Company is not
required to provide any bonding or other financial security arrangements in any
material amount in connection with any contract listed on Schedule 5.15(b).
5.16 REAL PROPERTY. Schedule 5.16(a) includes a list of all real
property owned or leased by the Company at the date hereof and all other real
property, if any, used by the Company in the conduct of its business. The
Company has good and insurable title to any real property owned by it that is
shown on Schedule 5.16(a), other than property intended to be sold or
distributed prior to the Closing Date as provided in Section 7.1(c) of this
Agreement, and all real property so owned is subject to no mortgage, pledge,
lien, conditional sales agreement, encumbrance, lease, possessory rights of
third parties or charge, except for:
(i) liens reflected on Schedule 5.10(a) or Schedule 5.16(b)
as securing specified liabilities (with respect to which no material
default by the Company exists);
(ii) liens for current taxes not yet payable and assessments
not in default;
(iii) easements for utilities serving the property; and
(iv) easements, covenants and restrictions and other
exceptions to title which do not adversely affect the current use of
the property.
Copies of all leases and agreements in respect of such real property
leased by the Company, which are true, complete and correct in all material
respects, are attached to Schedule 5.16(a), and an indication as to which such
properties, if any, are currently owned, or were formerly owned, by
Stockholders or Affiliates of the Company or Stockholders is included in
Schedule 5.16(a). Except as set forth on Schedule 5.16(b), all of such leases
included on Schedule 5.16(a) are, as to the Company, in full force and effect
and constitute valid and binding agreements of the Company in accordance with
their respective terms.
5.17 INSURANCE. The Company has delivered to AmPaM (i) an accurate
list as of the Balance Sheet Date of all insurance policies carried by the
Company and (ii) an accurate list of all insurance loss runs or workers
compensation claims received for the past three policy years (which lists are
set forth on Schedule 5.17). The Company has also delivered or made available
to AmPaM true, complete and correct copies of all insurance policies currently
in effect that are referred in Schedule 5.17. Such insurance policies evidence
all of the insurance the Company is required to carry pursuant to all of its
contracts and other agreements and pursuant to all applicable laws. All of such
insurance policies are currently in full force and effect except as stated in
Schedule 5.17.
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Since January 1, 1996, no insurance carried by the Company has been canceled by
the insurer and the Company has not been denied coverage under any such policy.
5.18 COMPENSATION; EMPLOYMENT AGREEMENTS; LABOR MATTERS.
(a) The Company has delivered to AmPaM an accurate list (which is set
forth on Schedule 5.18(a)(1)) showing all officers, directors and key employees
of the Company, listing all employment agreements with such officers, directors
and key employees and the rate of compensation (and the portions thereof
attributable to salary, bonus and other compensation, respectively) of each of
such persons as of (i) the Balance Sheet Date and (ii) the date hereof. The
Company has provided to AmPaM true, complete and correct copies of any
employment agreements for persons listed on Schedule 5.18(a)(1). Since the
Balance Sheet Date, except as disclosed on Schedule 5.18(a)(2), there have been
no increases in the compensation payable or any bonuses to any officer,
director, key employee or other employee, except ordinary salary increases
implemented on a basis consistent with past practices and except for bonuses
paid on a basis consistent with past practices.
(b) Except as set forth on Schedule 5.18(b), (i) the Company is not
bound by or subject to (and none of its assets or properties is bound by or
subject to) any arrangement with any labor union, (ii) to the knowledge of the
Company, no campaign to establish such arrangement is in progress and (iii)
there is no pending or, to the Company's knowledge, threatened labor dispute
involving the Company and any group of its employees nor has the Company
experienced any labor interruptions over the past three years. The Company
believes its relationship with employees to be generally good.
(c) Except as set forth in Schedule 5.18(c) attached hereto, (i) there
are no claims, actions or proceedings pending or, to the knowledge of the
Company, threatened between the Company and any of its employees, (ii) the
Company has complied in all material respects with all laws relating to the
employment of labor, including, without limitation, any provisions thereof
relating to wages, hours, collective bargaining, and the payment of social
security and similar taxes, and (iii) the Company has not received written
notice from any person asserting that the Company is liable in any material
amount for any arrears of wages or any taxes or penalties for failure to comply
with any of the foregoing.
5.19 EMPLOYEE PLANS. The Company has delivered to AmPaM accurate
schedule (Schedule 5.19(a)) showing all employee benefit plans of the Company,
including all employment agreements and other agreements or arrangements
containing "golden parachute" or other similar provisions, and deferred
compensation agreements, together with true, complete and correct copies of
such plans, agreements and any trusts related thereto, and classifications of
employees covered thereby as of the Balance Sheet Date and as of the date of
this Agreement. Except for the employee benefit plans, if any, described on
Schedule 5.19(a), the Company does not sponsor, maintain or contribute to any
plan program, fund or arrangement that constitutes an "employee pension benefit
plan", and neither the Company nor any Subsidiary has any obligation to
contribute to or accrue or
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pay any benefits under any deferred compensation or retirement funding
arrangement on behalf of any employee or employees (such as, for example, and
without limitation, any individual retirement account or annuity, any "excess
benefit plan" (within the meaning of Section 3(36) of the Employee Retirement
Income Security Act of 1974, as amended ("ERISA")) or any non-qualified
deferred compensation arrangement). For the purposes of this Agreement, the
term "employee pension benefit plan" shall have the same meaning as is given
that term in Section 3(2) of ERISA. The Company has not sponsored, maintained
or contributed to any employee pension benefit plan other than the plans set
forth on Schedule 5.19(a), and, except as described on Schedule 5.19(b), the
Company is not or could not be required to contribute to any retirement plan
pursuant to the provisions of any collective bargaining agreement establishing
the terms and conditions or employment of any of the Company's employees.
Except as set forth on Schedule 5.19(c), the Company is not now, or
will not as a result of its past activities become, liable to the Pension
Benefit Guaranty Corporation or to any multiemployer employee pension benefit
plan under the provisions of Title IV of ERISA.
All employee benefit plans listed on Schedule 5.19(a) and the
administration thereof are in compliance in all material respects with their
terms and all applicable provisions of ERISA and the regulations issued
thereunder, as well as with all other applicable federal, state and local
statutes, ordinances and regulations.
All accrued contribution obligations of the Company as of the Balance
Sheet Date with respect to any plan listed on Schedule 5.19(a) have either been
fulfilled in their entirety or are fully reflected on the balance sheet of the
Company as of the Balance Sheet Date.
5.20 COMPLIANCE WITH ERISA. All plans listed on Schedule 5.19(a) that
are intended to qualify under Section 401 (a) of the Code (the "Qualified
Plans") are, and have been so qualified and have been determined by the
Internal Revenue Service to be so qualified, and copies of such determination
letters are attached to Schedule 5.19(a). Except as disclosed on Schedule 5.20,
all reports and other documents required to be filed with any governmental
agency or distributed to plan participants or beneficiaries (including, but not
limited to, actuarial reports, audits or tax returns) since January 1, 1992
have been timely filed or distributed, and copies thereof have been made
available to AmPaM. No such plan listed on Schedule 5.19(a) nor the Company has
engaged in any transaction prohibited under the provisions of Section 4975 of
the Code or Section 406 of ERISA. No such Plan listed on Schedule 5.19(a) has
incurred an accumulated funding deficiency, as defined in Section 412(a) of the
Code and Section 302(l) of ERISA; and the Company has not incurred any
liability for excise tax or penalty due to the Internal Revenue Service nor any
liability to the Pension Benefit Guaranty Corporation. The Company further
represents that except as set forth on Schedule 5.20 hereto:
(i) there have been no terminations, partial terminations or
discontinuations of contributions to any Qualified Plan intended to
qualify under Section 401(a) of the Code without notice to and
approval by the Internal Revenue Service;
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(ii) no plan listed on Schedule 5.19(a) subject to the
provisions of Title IV of ERISA has been terminated;
(iii) there have been no "reportable events" (as that phrase
is defined in Section 4043 of ERISA) with respect to any such plan
listed in Schedule 5.19(a);
(iv) the Company (including any Subsidiaries) has not
incurred liability under Section 4062 of ERISA; and
(v) no circumstances exist pursuant to which the Company
could have any direct or indirect liability whatsoever (including, but
not limited to, any liability to any multiemployer plan or the PBGC
under Title IV of ERISA or to the Internal Revenue Service for any
excise tax or penalty, or being subject to any statutory lien to
secure payment of any such liability) with respect to any plan now or
heretofore maintained or contributed to by any entity other than the
Company that is, or at any time was, a member of a "controlled group"
(as defined in Section 412(n)(6)(B) of the Code) that includes the
Company.
5.21 CONFORMITY WITH LAW; LITIGATION. Except to the extent set forth
on Schedule 5.21 or Schedule 5.13, the Company has not violated within the five
years prior to the date of this Agreement and is not currently in violation of
any law or regulation or any order of any court or Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality having jurisdiction over it other than violations that would
not have a Material Adverse Effect on the Company; and except to the extent set
forth on Schedule 5.10(c) or Schedule 5.13, there are no claims, actions, suits
or proceedings, pending or, to the knowledge of the Company, threatened in
writing against the Company, at law or in equity, or before or by any Federal,
state, municipal or other governmental department, commission, board, bureau,
agency or instrumentality having jurisdiction over the Company and no written
notice of any claim, action, suit or proceeding, whether pending or threatened,
has been received by the Company, and to the knowledge of the Company there is
no valid basis for any such claim, action, suit or proceeding that could
reasonably be expected to have a Material Adverse Effect on the Company.
5.22 TAXES. (a) The Company has timely filed all requisite Federal,
state and other Tax Returns or extension requests for all fiscal periods ended
on or before the Balance Sheet Date; and except as set forth on Schedule
5.22(a), there are no examinations in progress or claims pending against the
Company for federal, state and other Taxes (including penalties and interest)
for any period or periods prior to and including the Balance Sheet Date and no
notice of any claim for Taxes, whether pending or threatened, has been
received. All Tax, including interest and penalties (whether or not shown on
any Tax Return), due by the Company has been paid. The amounts shown as
accruals for Taxes on the Financial Statements are sufficient for the payment
of all Taxes of the kinds indicated (including penalties and interest) for all
fiscal periods ended on or before the date of the respective Financial
Statements. Copies of (i) any tax examinations, (ii) extensions of statutory
limitations and (iii) the federal and local income Tax Returns and franchise
Tax Returns of Company for their last three (3) fiscal years, or such shorter
period of time as any of them shall
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have existed, are attached hereto as Schedule 5.22(a) or have otherwise been
delivered to AmPaM. The Company has a taxable year ended December 31. Except as
set forth on Schedule 5.22(a), the Company uses the accrual method of
accounting for income tax purposes, and the Company's methods of accounting
have not changed in any material respect in the past five years (except as
required to conform to changes in GAAP). The Company is not an investment
company as defined in Section 351(e)(1) of the Code. The Company is not and has
not during the last five years been a party to any tax sharing agreement or
agreement of similar effect. Except as set forth on Schedule 5.22(a), the
Company is not and has not during the last five years been a member of any
consolidated group for federal tax purposes. The Company has not received, been
denied, or applied for any private letter ruling from the IRS during the last
ten years.
(b) The Stockholders have made a valid election under the provisions
of Subchapter S of the Code and, except as set forth on Schedule 5.22(b), the
Company has not, within the past five years, been subject to Federal income
Taxes under the provisions of Subchapter C of the Code.
5.23 NO VIOLATIONS; NO CONSENT REQUIRED, ETC.
(a) The Company is not in violation of any Charter Document. Except as
set forth on Schedule 5.23(a), the Company is not in default under any lease,
instrument, agreement, license, or permit set forth on Schedule 5.12(a),
Schedule 5.14(a), Schedule 5.15(b) or Schedule 5.16(a) (collectively, the
"Material Documents").
(b) Except as set forth on Schedule 5.23(b)(1), the execution and
delivery of this Agreement by each of the Company and the Stockholders do not
violate, conflict with or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of the Company under any of
the terms, conditions or provisions of (i) the Charter Documents of the
Company, (ii) any statute, law, ordinance, rule, regulation, judgment, decree,
order, injunction, writ, permit or license of any court or governmental
authority applicable to the Company or any of its properties or assets, or
(iii) any Material Document to which the Company is now a party or by which the
Company or any of its properties or assets may be bound or affected. The
consummation by the Company and the Stockholders of the transactions
contemplated hereby will not result in any material violation, conflict,
breach, right of termination or acceleration or creation of liens under any of
the terms, conditions or provisions of the items described in clauses (i)
through (iii) of the preceding sentence, subject, in the case of the terms,
conditions or provisions of the items described in clause (iii) above, to
obtaining (prior to the Effective Time) such consents as may be required from
commercial lenders, lessors or other third parties as listed on Schedule
5.23(b)(2).
(c) Except as set forth on Schedule 5.23(c) and except for the
Hart-Scott Act, none of the Material Documents requires notice to, or the
consent or approval of, any governmental agency or other third party with
respect to the consummation by the Company and the Stockholders of any of
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the transactions contemplated hereby in order to remain in full force and
effect, and consummation by the Company and the Stockholders of the
transactions contemplated hereby will not give rise to any right to
termination, cancellation or acceleration or loss of any material right or
benefit under any Material Document.
(d) Except for (i) any filings to be made with the SEC pursuant to the
1933 Act or with any state securities authorities in connection with the offer
and sale of AmPaM Stock and AmPaM Notes pursuant to this Agreement and (ii) any
filing required to be made under the Hart-Scott Act in connection with the
transactions contemplated by this Agreement, no declaration, filing or
registration with, or notice to, or authorization, consent or approval of, any
governmental or regulatory body or authority is necessary for the execution and
delivery of this Agreement by the Company or the consummation by the Company of
the transactions contemplated hereby.
(e) Except as set forth on Schedule 5.23(e), none of the Material
Documents prohibits the disclosure or publication by the Company or AmPaM of
the name of any other party to such Material Document, and none of the Material
Documents prohibits or restricts the Company from freely providing services or
selling products to any other customer or potential customer of the Company,
AmPaM or any Other Founding Company.
5.24 GOVERNMENT CONTRACTS. Except as set forth on Schedule 5.24, the
Company is not now a party to any governmental contract subject to price
redetermination or renegotiation.
5.25 ABSENCE OF CHANGES. (a) Since the Balance Sheet Date, except as
set forth on Schedule 5.25 or as otherwise contemplated hereby, there has not
been:
(i) any Material Adverse Change in the Company;
(ii) any damage, destruction or casualty loss (whether or not
covered by insurance), alone or in the aggregate, which has caused a
Material Adverse Effect on the Company;
(iii) any change in the authorized capital of the Company or
its outstanding securities or any change in its ownership interests or
any grant of any options, warrants, calls, conversion rights or
commitments;
(iv) any declaration or payment of any dividend or
distribution in respect of the capital stock or any direct or indirect
redemption, purchase or other acquisition of any of the capital stock
of the Company except for distributions that would have been permitted
after the date hereof under Section 7.3(iii) hereof,
(v) any increase in the compensation, bonus, sales
commissions or fee arrangement payable or to become payable by the
Company to any of its officers, directors,
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Stockholders, employees, consultants or agents, except for ordinary
and customary bonuses and salary increases for employees in accordance
with past practice;
(vi) any work interruptions, labor grievances or claims
filed, or any event or condition of any character, which has caused a
Material Adverse Effect on the Company;
(vii) any sale or transfer, or any agreement to sell or
transfer, any material assets, property or rights of the Company to
any person, including, without limitation, the Stockholders and their
affiliates, except inventory sold or transferred in the Ordinary
Course of Business;
(viii) any cancellation, or agreement to cancel, any
indebtedness or other obligation owing to the Company, including
without limitation any indebtedness or obligation of any Stockholders
or any Affiliate thereof;
(ix) any plan, agreement or arrangement granting any
preferential rights to purchase or acquire any interest in any of the
material assets, property or rights of the Company or requiring
consent of any party to the transfer and assignment of any such
assets, property or rights;
(x) any purchase or acquisition of, or agreement, plan or
arrangement to purchase or acquire, any property, rights or assets
outside of the Ordinary Course of Business;
(xi) any waiver of any material rights or claims of the
Company;
(xii) any amendment or termination of any Material Document
to which the Company is a party except for the termination of a
Material Document in accordance with its terms without any action on
the part of the Company;
(xiii) any transaction by the Company outside the Ordinary
Course of Business;
(xiv) any cancellation or termination of a material contract
with a customer or client listed on Schedule 5.15(a) prior to the
scheduled termination date thereof; or
(xv) any other distribution of property or assets by the
Company other than in the Ordinary Course of Business, other than (a)
distributions of nonoperating assets specifically identified on
Schedule 5.25, (b) distributions of real estate required by Section
7.1(c) of this Agreement and (c) distributions of cash or promissory
notes permitted by Annex I hereto.
(b) Except as set forth on Schedule 5.25, the Company has
not, between the Balance Sheet Date and the date hereof, taken any of the
actions set forth in Section 7.3.
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5.26 DEPOSIT ACCOUNTS; POWERS OF ATTORNEY. The Company has delivered
to AmPaM an accurate schedule (which is set forth on Schedule 5.26) as of the
date of the Agreement of:
(i) the name of each financial institution in which the
Company has an account or safe deposit box;
(ii) the names in which the accounts or boxes are held;
(iii) the type of account and account number; and
(iv) the name of each person authorized to draw thereon or
have access thereto.
Schedule 5.26 also sets forth the name of each person, corporation, firm or
other entity holding a general or special power of attorney from the Company
and a description of the terms of such power.
5.27 VALIDITY OF OBLIGATIONS. The execution and delivery of this
Agreement by the Company and the performance of the transactions contemplated
herein have been duly and validly authorized by the Board of Directors of the
Company and this Agreement has been duly and validly authorized by all
necessary corporate action and is a legal, valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
5.28 RELATIONS WITH GOVERNMENTS. The Company has not, and to the
knowledge of the Company none of the Stockholders or any Affiliate of any of
them has, given or offered anything of value to any governmental official,
political party or candidate for government office or otherwise taken any
action which would cause the Company to be in violation of the Foreign Corrupt
Practices Act of 1977, as amended, or any law of similar effect.
5.29 DISCLOSURE. This Agreement, including the Annexes and Schedules
hereto, and the completed questionnaire related to the Hart-Scott Act furnished
to AmPaM by the Company, do not contain an untrue statement of a material fact
concerning the Company or omit to state a material fact concerning the Company
necessary to make the statements herein and therein, in light of the
circumstances under which they were made, not misleading; provided, however,
that the foregoing does not apply to statements contained in or omitted from
any of such documents made or omitted in reliance upon information furnished in
writing by AmPaM.
5.30 NO WARRANTIES OR INSURANCE. Except for warranty liability under
applicable law and except for warranty liability under the warranties issued by
the Company of the types described on Schedule 5.30, the Company has no
liability to any person under any warranty and the Company does not offer or
sell insurance or consumer protection plans or other arrangements that could
result in the Company being required to make any payment to or perform any
service for any person.
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5.31 INTEREST IN CUSTOMERS AND SUPPLIERS AND RELATED PARTY
TRANSACTIONS. Except as described on Schedule 5.31 or in Section 8.11, no
Stockholder, officer, director or Affiliate of the Company (i) owns, directly
or indirectly, any financial interest in, or is a director, officer, employee
or affiliate of, any corporation, firm, association or business organization
that is a client, supplier, customer, lessor, lessee or competitor of the
Company, or (ii) is or will be a party to an agreement or relationship with the
Company other than through a customary "at will" employment relationship.
5.32 PRIVATE PLACEMENT MEMORANDUM. None of the information supplied or
to be supplied by the Company in writing specifically for inclusion in the
Private Placement Memorandum contained or, as of the Closing Date, will contain
any untrue statement of a material fact concerning the Company or omitted or
will omit to state any material fact required to be stated therein or necessary
in order to make the statements contained in such information supplied or to be
supplied by the Company concerning the Company, in light of the circumstances
under which they are made, not misleading.
(B) REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS.
Each Stockholder severally represents and warrants that the
representations and warranties set forth below are true as of the date of this
Agreement and, subject to Section 7.7 hereof, shall be true at the time of
Closing, and that the representations and warranties set forth in this Section
5(B) shall survive the Closing Date.
5.33 AUTHORITY; OWNERSHIP. Such Stockholder has the full legal right,
power and authority to enter into this Agreement, and this Agreement is a
legal, valid and binding obligation of such Stockholder, enforceable against
the Stockholder in accordance with its terms. Except as set forth on Schedule
5.33(a), the execution and delivery of this Agreement by such Stockholder does
not violate, conflict with or result in a breach of any provision of, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien, security interest,
charge or encumbrance upon any of the properties or assets of such Stockholder
under any of the terms, conditions or provisions of (i) the Charter Documents
of the Company, (ii) any statute, law, ordinance, rule, regulation, judgment,
decree, order, injunction, writ, permit or license of any court or governmental
authority applicable to such Stockholder or any of such Stockholder's
properties or assets, or (iii) any lease, instrument, agreement, license or
permit to which such Stockholder is now a party or by which such Stockholder or
any of such Stockholder's properties or assets may be bound or affected. Except
for (i) any filings to be made with the SEC pursuant to the 1933 Act and any
state securities authorities in connection with the offer and sale of AmPaM
Stock and AmPaM Notes pursuant to this Agreement, (ii) any filing required to
be made under the Hart-Scott Act in connection with the transactions
contemplated by this Agreement, no declaration, filing or registration with, or
notice to, or authorization, consent or approval of, any governmental or
regulatory body or authority is necessary for the execution and delivery of
this Agreement by such Stockholder or the consummation by such Stockholder of
the transactions contemplated hereby. Except as set forth on
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Schedule 5.33(b), such Stockholder owns beneficially and of record all of the
shares of the Company Stock identified on Annex I hereto as being owned by such
Stockholder, and, such Company Stock is owned free and clear of all liens,
security interests, pledges, charges, voting trusts, voting agreements,
restrictions, encumbrances and claims of every kind.
5.34 PREEMPTIVE RIGHTS. Such Stockholder does not have, or hereby
waives, any preemptive or other right to acquire shares of Company Stock or
AmPaM Stock that such Stockholder has or may have had. Nothing herein, however,
shall limit or restrict the rights of any Stockholder to acquire AmPaM Stock
pursuant to (i) this Agreement, (ii) any option granted or to be granted by
AmPaM to such Stockholder, (iii) a purchase through a broker in a regular stock
market transaction or (iv) a purchase from a stockholder of a Founding Company
(subject to compliance with any contractual restrictions or securities law
restrictions applicable thereto specified in Section 15 hereof).
5.35 NO COMMITMENT TO DISPOSE OF AMPAM STOCK. No Stockholder is under
any binding commitment or contract to sell, exchange or otherwise dispose of
shares of AmPaM Stock or AmPaM Notes received pursuant to this Agreement.
5.36 DISCLOSURE. The completed Director and Officer Questionnaires
with respect to such Stockholder (if any), the completed investor questionnaire
furnished to AmPaM by such Stockholder in connection with the proposed
acquisition by such Stockholder of AmPaM Stock and AmPaM Notes and any other
information provided to AmPaM in writing by such Stockholder relating
specifically to such Stockholder for inclusion in the Private Placement
Memorandum do not contain an untrue statement of a material fact concerning
such Stockholder or omit to state a material fact concerning such Stockholder
necessary to make the statements herein and therein, in light of the
circumstances under which they were made, not misleading.
6. REPRESENTATIONS OF AmPaM
Except as otherwise qualified below, AmPaM represents and warrants
that all of the following representations and warranties in this Section 6 are
true at the date of this Agreement and, subject to Section 7.7 hereof, shall be
true at the time of Closing, and that such representations and warranties shall
survive the Closing Date for a period of eighteen months (the last day of such
period being the "Expiration Date" for purposes of the representations and
warranties set forth in this Section 6), except that the representations and
warranties set forth in Section 6.3, 6.11 and 6.15 shall survive until such
time as the applicable statute of limitations period has run, which shall be
deemed to be the Expiration Date for the representations and warranties set
forth in Sections 6.3, 6.11 and 6.15.
AmPaM acknowledges that in purchasing the shares of Company Stock, it
is relying upon its own independent investigation as well as the
representations and warranties of the Company and the Stockholders as set forth
in this Agreement.
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6.1 DUE ORGANIZATION. AmPaM is a corporation duly incorporated and
organized, validly existing and in good standing under the laws of the State of
Delaware, and has the requisite power and authority to carry on its business as
it is now being conducted and as contemplated by the Private Placement
Memorandum. AmPaM is duly qualified or authorized to do business and is in good
standing in each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification or
authorization necessary, except where the failure to be so qualified or
authorized to do business would not have a Material Adverse Effect. True,
complete and correct copies of the Certificate of Incorporation and By-laws,
each as proposed to be amended and as such documents shall be in effect as of
the Closing Date, of AmPaM (the "AmPaM Charter Documents") are attached hereto
as Annex II.
6.2 AUTHORIZATION. (i) The officers of AmPaM executing this Agreement
have the authority to enter into and bind AmPaM to the terms of this Agreement
and (ii) AmPaM has the full legal right, power and authority to enter into this
Agreement and consummate the transactions contemplated hereby. All corporate
acts and other proceedings required to have been taken by AmPaM to authorize
the execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby have been duly and properly taken.
6.3 CAPITAL STOCK OF AmPaM. The authorized capital stock of AmPaM is
as set forth in Section 1.3(ii). Immediately prior to the Closing Date, all of
the issued and outstanding shares of the capital stock of AmPaM will be as set
forth in the Private Placement Memorandum, free and clear of all liens,
security interests, pledges, charges, voting trusts, restrictions, encumbrances
and claims of every kind other than any restrictions described in the Private
Placement Memorandum. All of the issued and outstanding shares of the capital
stock of AmPaM have been duly authorized and validly issued, are fully paid and
nonassessable and such shares were offered, issued, sold and delivered by AmPaM
in compliance with all applicable state and Federal laws concerning the
issuance of securities. Further, none of such shares were issued in violation
of the preemptive rights of any past or present stockholder of AmPaM. Upon the
Closing Date, the authorized, issued and outstanding shares of capital stock of
AmPaM will be as set forth in the Private Placement Memorandum under the
caption "Capitalization." Upon the Closing Date, the aggregate number of shares
of AmPaM Stock issued and outstanding on the Closing Date that are owned by
Sterling City Capital, LLC, any Affiliates of Sterling City Capital, LLC and
the officers and directors of AmPaM will not be greater than the number of
shares of AmPaM Stock reflected in the Private Placement Memorandum as the
aggregate number of shares of AmPaM Stock to be issued and outstanding and
owned by Sterling City Capital, LLC, any Affiliates of Sterling City Capital,
LLC and the officers and directors of AmPaM.
6.4 TRANSACTIONS IN CAPITAL STOCK. Except for the Other Agreements and
except as set forth in the Private Placement Memorandum, (i) no option,
warrant, call, conversion right or commitment of any kind exists as of the date
of this Agreement which obligates AmPaM to issue any of its authorized but
unissued capital stock; and (ii) AmPaM has no obligation (contingent or
otherwise) to purchase, redeem or otherwise acquire any of its equity
securities or any interests therein or to pay any dividend or make any
distribution in respect thereof. The material terms of any
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options, warrants or other rights to acquire shares of the stock of AmPaM
referred to in the preceding sentence will be as described in the Private
Placement Memorandum.
6.5 SUBSIDIARIES. As of the date of this Agreement, AmPaM has no
subsidiaries. As of the date of this Agreement, AmPaM does not own, of record
or beneficially, or control, directly or indirectly, any capital stock,
securities convertible into capital stock or any other equity interest in any
corporation, association or business entity, and AmPaM is not, directly or
indirectly, a participant in any joint venture, partnership or other
non-corporate entity.
6.6 FINANCIAL STATEMENTS. The historical financial statements of AmPaM
included in the Private Placement Memorandum (the "AmPaM Financial Statements")
have been prepared in accordance with GAAP applied on a consistent basis
throughout the periods indicated (except as noted thereon), and the balance
sheet included therein presents fairly the financial position of AmPaM as of
its date. Management of AmPaM believes that the assumptions underlying the pro
forma adjustments utilized in the preparation of such pro forma financial
statements are reasonable, and such pro forma adjustments have been properly
applied to the historical financial amounts in the compilation of the pro forma
financial statements. Based on the representations in Section 5.9 of this
Agreement and in Section 5.9 of each of the Other Agreements, the pro forma
financial information of AmPaM fairly presents the pro forma financial
position, results of operations and other information purported to be shown
therein at the respective dates and for the respective periods specified.
6.7 LIABILITIES AND OBLIGATIONS. Except as set forth in the Private
Placement Memorandum, as of the date of this Agreement, AmPaM has no material
liabilities or obligations of any kind, character or description, whether
accrued, absolute, secured or unsecured, contingent or otherwise, other than
liabilities incurred in the ordinary course of business and consistent with
past practices, liabilities or obligations set forth in or contemplated by this
Agreement and the Other Agreements and except for fees incurred in connection
with the transactions contemplated hereby and thereby.
6.8 CONFORMITY WITH LAW; LITIGATION. Except to the extent set forth in
the Private Placement Memorandum, AmPaM is not in violation of any law or
regulation or any order of any court or Federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality
having jurisdiction over it and its stockholders and, there are no claims,
actions, suits or proceedings, pending or, to the knowledge of AmPaM,
threatened against or affecting, AmPaM, at law or in equity, or before or by
any Federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality having jurisdiction over it and no
notice of any claim, action, suit or proceeding, whether pending or threatened,
has been received. AmPaM has conducted and is conducting its businesses in
compliance in all material respects with the requirements, standards, criteria
and conditions set forth in applicable Federal, state and local statutes,
ordinances, permits, licenses, orders, approvals, variances, rules and
regulations and is not in violation, in any material respect, of any of the
foregoing.
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6.9 NO VIOLATIONS. (a) AmPaM is not in violation of any AmPaM Charter
Document. AmPaM is not in default under any lease, instrument, agreement,
license, or permit to which AmPaM is a party or by which AmPaM or any of its
properties are bound (collectively, the "AmPaM Documents").
(b) The execution and delivery of this Agreement by AmPaM do not
violate, conflict with or result in a breach of any provision of, or constitute
a default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien, security interest, charge or
encumbrance upon any of the properties or assets of AmPaM under any of the
terms, conditions or provisions of (i) the AmPaM Charter Documents, (ii) any
statute, law, ordinance, rule, regulation, judgment, decree, order, injunction,
writ, permit or license of any court or governmental authority applicable to
AmPaM or any of its properties or assets, or (iii) any AmPaM Document; provided
that the representations and warranties specified in clause (ii) of this
sentence (A) are based on information in the investor questionnaires and
related purchaser representative questionnaires executed and delivered by the
Stockholders of the Company and the stockholders of the Other Founding
Companies, the representations and warranties of the Stockholders set forth in
Section 16 hereof and the representations and warranties of the stockholders of
the Other Founding Companies set forth in Section 16 of the Other Agreements
and (B) are subject to the accuracy and completeness of the information
contained in such investor questionnaires and related purchaser representative
questionnaires and the truthfulness of such representations and warranties. The
consummation by AmPaM of the transactions contemplated hereby will not result
in any material violation, conflict, breach, right of termination or
acceleration or creation of liens under any of the terms, conditions or
provisions of the items described in clauses (i) through (iii) of the preceding
sentence, subject, in the case of the terms, conditions or provisions of the
items described in clause (iii) above, to obtaining (prior to the Closing Date)
(x) such approvals, consents or orders from the SEC, state blue sky authorities
and authorities administering the Hart-Scott Act and (y) such other consents as
may be required from commercial lenders, lessors or other third parties which
are listed on Schedule 6.9.
(c) Except for (i) any filings to be made with the SEC pursuant to the
1933 Act and filings with various state securities authorities in connection
with the transactions contemplated by this Agreement, and (ii) any filings
required to be made under the Hart-Scott Act in connection with the
transactions contemplated by this Agreement, none of the AmPaM Documents
requires notice to, or the consent or approval of, any governmental agency or
other third party with respect to the consummation by AmPaM of any of the
transactions contemplated hereby in order to remain in full force and effect,
and consummation by AmPaM of the transactions contemplated hereby will not give
rise to any right to termination, cancellation or acceleration or loss of any
material right or benefit under the AmPaM Documents; provided that the
representations and warranties specified in clauses (i) and (ii) of this
sentence (A) are based on information in the investor questionnaires and
related purchaser representative questionnaires executed and delivered by the
Stockholders of the Company and the stockholders of the Other Founding
Companies, the representations and warranties of the Stockholders set forth in
Section 16 hereof and the representations and warranties of the
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stockholders of the Other Founding Companies set forth in Section 16 of the
Other Agreements and (B) are subject to the accuracy and completeness of the
information contained in such investor questionnaires and related purchaser
representative questionnaires and the truthfulness of such representations and
warranties.
(d) Except for (i) any filings with the SEC pursuant to the 1933 Act
and filings with various state securities authorities in connection with the
transactions contemplated by this Agreement and (ii) any filings required under
the Hart-Scott Act in connection with the transactions contemplated by this
Agreement, no declaration, filing or registration with, or notice to, or
authorization, consent or approval of, any governmental or regulatory body or
authority is necessary for the execution and delivery of this Agreement by
AmPaM or the consummation by AmPaM of the transactions contemplated hereby;
provided that the representations and warranties specified in clauses (i) and
(ii) of this sentence (A) are based on information in the investor
questionnaires and related purchaser representative questionnaires executed and
delivered by the Stockholders of the Company and the stockholders of the Other
Founding Companies, the representations and warranties of the Stockholders set
forth in Section 16 hereof and the representations and warranties of the
stockholders of the Other Founding Companies set forth in Section 16 of the
Other Agreements and (B) are subject to the accuracy and completeness of the
information contained in such investor questionnaires and related purchaser
representative questionnaires and the truthfulness of such representations and
warranties.
6.10 VALIDITY OF OBLIGATIONS. The execution and delivery of this
Agreement by AmPaM and the performance of the transactions contemplated herein
have been duly and validly authorized by the Board of Directors of AmPaM and
this Agreement has been duly and validly authorized by all necessary corporate
action and is a legal, valid and binding obligation of AmPaM, enforceable
against AmPaM in accordance with its terms.
6.11 AmPaM STOCK. At the time of issuance thereof and delivery to the
Stockholders, the AmPaM Stock to be delivered to the Stockholders pursuant to
this Agreement will constitute valid, duly authorized and legally issued shares
of AmPaM, fully paid and nonassessable, and with the exception of restrictions
upon resale set forth in Sections 15 and 16 hereof, will be identical in all
substantive respects (which do not include the form of certificate upon which
it is printed or the presence or absence of a CUSIP number on any such
certificate) to the AmPaM Stock issued and outstanding as of the date hereof,
other than the Restricted Common Stock. The AmPaM Stock issued and delivered to
the Stockholders shall at the time of such issuance and delivery be free and
clear of any liens, claims or encumbrances of any kind or character. The offer
and sale of the shares of AmPaM Stock to be issued to the Stockholders pursuant
to this Agreement are not required to be registered under the 1933 Act;
provided that the representations and warranties specified in this sentence (A)
are based on information in the investor questionnaires and related purchaser
representative questionnaires executed and delivered by the Stockholders of the
Company and the stockholders of the Other Founding Companies, the
representations and warranties of the Stockholders set forth in Section 16
hereof and the representations and warranties of the stockholders of the Other
Founding Companies set forth in Section 16 of the Other Agreements and (B) are
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subject to the accuracy and completeness of the information contained in such
investor questionnaires and related purchaser representative questionnaires and
the truthfulness of such representations and warranties.
6.12 AmPaM NOTES. The AmPaM Notes have been duly authorized and, at
the Closing Date, will have been duly executed by AmPaM and, when
authenticated, issued and delivered, will constitute valid and binding
obligations of AmPaM, enforceable against AmPaM in accordance with their terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent transfers)
reorganization, moratorium or similar laws affecting enforcement of creditors'
rights generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law).
6.13 NO SIDE AGREEMENTS. AmPaM has not entered into any agreement with
any of the Founding Companies or any of the Stockholders of the Founding
Companies other than this Agreement, the Other Agreements, the agreements
referred to in this Agreement and in the Other Agreements and the Private
Placement Memorandum. AmPaM has not entered into any agreements providing for
rights to register shares of AmPaM Stock under the 1933 Act except as provided
in Section 17 of this Agreement, in Section 17 of the Other Agreements and in
an agreement with Sterling City Capital, LLC, its Affiliates and officers and
directors of AmPaM having terms substantially similar to those set forth in
Section 17 hereof.
6.14 BUSINESS; REAL PROPERTY; MATERIAL AGREEMENTS. AmPaM was formed in
June 1998 and has conducted no material business since the date of its
inception except for activities related to the transaction contemplated by this
Agreement, the Other Agreements and the Private Placement Memorandum. Except as
described in the Private Placement Memorandum, as of the date of this
Agreement, AmPaM does not own any real property or any material personal
property and is not a party to any other material agreement other than this
Agreement, the Other Agreements and the agreements contemplated hereby and
thereby.
6.15 RELATIONS WITH GOVERNMENTS. Neither AmPaM nor any of its
directors, officers or Affiliates has given or offered anything of value to any
government official, political party or candidate for government office, nor
has AmPaM, any of its directors, officers or Affiliates of any of them
otherwise taken any action, which would cause AmPaM to be in violation of the
Foreign Corrupt Practices Act of 1977, as amended, or any law of similar
effect.
6.16 DISCLOSURE. The Private Placement Memorandum delivered to the
Company and the Stockholders does not as of the date hereof contain an untrue
statement of a material fact or omit to state a material fact necessary to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the foregoing does not apply to
statements contained in or omitted from any of such documents made or omitted
in reliance upon, and in conformity with, information furnished to AmPaM by the
Company or the Stockholders in writing specifically for inclusion in the
Private Placement Memorandum.
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6.17 OTHER AGREEMENTS. The Other Agreements have been duly authorized,
executed and delivered by AmPaM and constitute the legal, valid and binding
obligation of AmPaM enforceable against AmPaM in accordance with their
respective terms. The terms and conditions of the Other Agreements (excluding
the terms relating to the consideration payable by AmPaM thereunder) are
identical in all material respects to the terms and conditions in this
Agreement.
7. COVENANTS PRIOR TO CLOSING
7.1 ACCESS AND COOPERATION; DUE DILIGENCE; TRANSFER OF REAL ESTATE.
(a) Between the date of this Agreement and the Closing Date, the
Company will afford to the officers and authorized representatives of AmPaM
reasonable access during normal business hours to all of the Company's sites,
properties, books and records and will furnish AmPaM with such additional
financial and operating data and other information as to the business and
properties of the Company as AmPaM may from time to time reasonably request.
The Company will cooperate with AmPaM, its representatives, auditors and
counsel in the preparation of any documents or other material which may be
required in connection with any documents or materials required by this
Agreement. AmPaM, the Stockholders and the Company will treat all information
obtained in connection with the negotiation and performance of this Agreement
or the due diligence investigations conducted with respect to the Company as
confidential in accordance with the provisions of Section 14 hereof.
(b) Between the date of this Agreement and the Closing Date, AmPaM
will afford to the officers and authorized representatives of the Company
access to all of AmPaM's sites, properties, books and records and will furnish
the Company with such additional financial and operating data and other
information as to the business and properties of AmPaM and the Other Founding
Companies as the Company may from time to time reasonably request. AmPaM will
cooperate with the Company, its representatives, auditors and counsel in the
preparation of any documents or other material which may be required in
connection with any documents or materials required by this Agreement. The
Company will cause all information obtained pursuant to this Section 7.1(b) or
obtained in connection with the negotiation and performance of this Agreement
to be treated as confidential in accordance with the provisions of Section 14
hereof.
(c) Except as set forth on Schedule 7.1, any real property owned by
the Company will be sold or distributed by the Company on terms mutually
acceptable to AmPaM and the Company and leased back by the Company on terms no
less favorable to the Company than those available from an unaffiliated party
and otherwise reasonably acceptable to AmPaM at or prior to the Closing Date.
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7.2 CONDUCT OF BUSINESS PENDING CLOSING. Between the date of this
Agreement and the Closing Date, the Company will, except as set forth on
Schedule 7.2:
(i) carry on its businesses in the Ordinary Course of
Business and not introduce any material new method of management,
operation or accounting;
(ii) use all commercially reasonable efforts to maintain its
properties and facilities, including those held under leases, in as
good working order and condition as at present, ordinary wear and
tear, depreciation and insured losses excepted;
(iii) perform in all material respects all of its obligations
under all Material Documents relating to or affecting its respective
assets, properties or rights;
(iv) use its commercially reasonable efforts to keep in full
force and effect present insurance policies or other comparable
insurance coverage;
(v) use its commercially reasonable efforts to maintain and
preserve its business organization intact, retain its respective
present key employees and maintain its relationships with suppliers,
customers and others having business relations with the Company;
(vi) use its commercially reasonable efforts to maintain
compliance with all material permits, laws, rules and regulations,
consent orders, and all other orders of applicable courts, regulatory
agencies and similar governmental authorities;
(vii) maintain present debt and lease instruments in
accordance with their terms and not enter into new or amended debt or
lease instruments without the knowledge and consent of AmPaM (which
consent shall not be unreasonably withheld), provided that debt and/or
lease instruments may be replaced without the consent of AmPaM if such
replacement instruments are on terms at least as favorable to the
Company as the instruments being replaced;
(viii) maintain or reduce present salaries and commission
levels for all officers, directors, employees and agents except for
ordinary and customary bonus and salary increases for employees in
accordance with past practices; and
(ix) use commercially reasonable efforts to cause the actual
amount of its Current Assets (as defined in Annex I hereto) to be not
less than 150% of the actual amount of its Current Liabilities (as
defined in Annex I hereto).
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7.3 PROHIBITED ACTIVITIES. Except as disclosed on Schedule 7.3,
between the date hereof and the Closing Date, the Company will not, without
prior written consent of AmPaM:
(i) make any change in its Charter Documents;
(ii) issue any securities, options, warrants, calls,
conversion rights or commitments relating to its securities of any
kind other than in connection with the exercise of options or warrants
listed in Schedule 5.4;
(iii) except as permitted pursuant to the terms and
conditions for distributions described in Annex I, declare or pay any
dividend, or make any distribution in respect of its stock whether now
or hereafter outstanding, or purchase, redeem or otherwise acquire or
retire for value any shares of its stock;
(iv) enter into any contract or commitment or incur or agree
to incur any liability or make any capital expenditures, except if it
is in the Ordinary Course of Business or involves an amount not in
excess of three percent (3%) of the Company's gross revenues for
fiscal 1997;
(v) create, assume or permit to exist any mortgage, pledge or
other lien or encumbrance upon any assets or properties whether now
owned or hereafter acquired, except (1) with respect to purchase money
liens incurred in connection with the acquisition of equipment with an
aggregate cost not in excess of three percent (3%) of the Company's
gross revenues for fiscal 1997 necessary or desirable for the conduct
of the businesses of the Company, (2) (A) liens for taxes either not
yet due or being contested in good faith and by appropriate
proceedings (and for which contested taxes adequate reserves have been
established and are being maintained) or (B) materialmen's,
mechanics', workers', repairmen's, employees' or other like liens
arising in the Ordinary Course of Business (the liens set forth in
clause (2) being referred to herein as "Statutory Liens"), or (3)
liens set forth on Schedule 5.10 and/or Schedule 5.15 hereto;
(vi) sell, assign, lease or otherwise transfer or dispose of
any property or equipment except in the Ordinary Course of Business
and other than distributions of real estate and other assets as
permitted in this Agreement (including Annex I hereto);
(vii) negotiate for the acquisition of any business or the
start-up of any new business;
(viii) merge or consolidate or agree to merge or consolidate
with or into any other corporation;
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(ix) waive any material rights or claims of the Company,
provided that the Company may negotiate and adjust bills and accounts
in the course of good faith disputes with customers in a manner
consistent with past practice;
(x) amend or terminate any Material Document except for the
termination of a Material Document in accordance with its terms
without any action on the part of the Company; or
(xi) enter into any other material transaction outside the
Ordinary Course of Business or any transaction prohibited hereunder.
7.4 NO SHOP. None of the Stockholders, the Company, nor any agent,
officer, director, trustee or any representative of any of the foregoing will,
during the period commencing on the date of this Agreement and ending with the
earlier to occur of the Closing Date or the termination of this Agreement in
accordance with its terms, directly or indirectly:
(i) solicit or initiate the submission of proposals or offers
from any person for,
(ii) participate in any discussions pertaining to, or
(iii) furnish any information to any person other than AmPaM
or its authorized agents relating to, any acquisition or purchase of
all or a material amount of the assets of, or any equity interest in,
the Company or a merger, consolidation or business combination of the
Company.
7.5 AGREEMENTS. Except as disclosed on Schedule 7.5(a), the
Stockholders and the Company shall terminate (i) any stockholders agreements,
voting agreements, voting trusts, agreements providing for the grant by the
Company of any options, warrants and employment agreements between the Company
and any employee listed on Schedule 8.11 hereto and (ii) except as otherwise
provided in this Agreement, any existing agreement between the Company and any
Stockholder, on or prior to the Closing Date provided that nothing herein shall
prohibit or prevent the Company from paying (either prior to or on the Closing
Date) notes or other obligations from the Company to the Stockholders described
in Schedule 7.5(b) in accordance with the terms thereof.
7.6 NOTIFICATION OF CERTAIN MATTERS. Each Stockholder and the Company
shall give prompt notice to AmPaM upon obtaining knowledge of (i) the
occurrence or non-occurrence of any event the occurrence or nonoccurrence of
which would be likely to cause any representation or warranty of the Company or
such Stockholder contained herein to be untrue or inaccurate in any material
respect at or prior to the Closing and (ii) any material failure of such
Stockholder or the Company to comply with or satisfy any covenant, condition or
agreement to be complied with or satisfied by such person hereunder. AmPaM
shall give prompt notice to the Company of (i) the occurrence or non-occurrence
of any event the occurrence or non-occurrence of which would be likely to cause
any representation or warranty of AmPaM contained herein to be untrue or
inaccurate
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in any material respect at or prior to the Closing, (ii) any material failure
of AmPaM to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder; (iii) any termination of any Other
Agreement for any reason; and (iv) the issuance by the SEC or any state
securities regulatory authority of any issuance of or threatened issuance of
any order challenging the availability of an exemption from registration or
suspending the qualification of any securities described in the Private
Placement Memorandum for sale in any jurisdiction. However, subject to the
provisions of Section 7.7, such notification shall not relieve either the
Company or such Stockholder of their respective obligations under this
Agreement. The delivery of any notice pursuant to this Section 7.6 shall not be
deemed to (i) modify the representations or warranties hereunder of the party
delivering such notice, which modification may only be made pursuant to Section
7.7, (ii) modify the conditions set forth in Sections 8 and 9, or (iii) limit
or otherwise affect the remedies available hereunder to the party receiving
such notice.
7.7 AMENDMENT OF SCHEDULES. Each party hereto agrees that, with
respect to the representations and warranties of such party contained in this
Agreement, such party shall have the continuing obligation until 24 hours prior
to the Closing Date to notify AmPaM with respect to any matter (i) hereafter
arising or discovered which, if existing or known at the date of this
Agreement, would have been required to be set forth or described in the
Schedules or (ii) which may have been omitted from the Schedules previously
provided by such party. Notwithstanding the foregoing sentence, no amendment or
supplement to a Schedule prepared by the Company may be made unless AmPaM
consents to such amendment or supplement; and provided further, that no
amendment or supplement to a Schedule prepared by AmPaM may be made unless the
Stockholders consent to such amendment or supplement. For all purposes of this
Agreement, including without limitation for purposes of determining whether the
conditions set forth in Sections 8.1 and 9.1 have been fulfilled, the Schedules
hereto, as amended or supplemented with the consent of AmPaM or the
Stockholders, as the case may be, as provided above, shall be deemed to be the
Schedules to this Agreement.
7.8 FURTHER ASSURANCES. The parties hereto agree to execute and
deliver, or cause to be executed and delivered, such further instruments or
documents or take such other action as may be reasonably necessary or
appropriate to carry out the transactions contemplated hereby and to cause the
conditions to the Closing Date to be satisfied as promptly as practicable.
7.9 AUTHORIZED CAPITAL. Prior to the Closing Date, AmPaM shall
maintain its authorized capital stock as set forth in the Private Placement
Memorandum.
7.10 COMPLIANCE WITH THE HART-SCOTT ACT. All parties to this Agreement
hereby recognize that one or more filings under the Hart-Scott Act may be
required in connection with the transactions contemplated herein. If it is
determined by the parties to this Agreement that filings under the Hart-Scott
Act are required, then: (i) each of the parties hereto agrees to cooperate and
use its best efforts to comply with the Hart-Scott Act and (ii) such compliance
by the Stockholders and the parties agree to cooperate and use their best
efforts to cause all filings required under the Hart- Scott Act to be made. If
filings under the Hart-Scott Act are required, the costs and expenses thereof
(including filing fees) shall be borne by AmPaM.
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8. CONDITIONS PRECEDENT TO OBLIGATIONS OF STOCKHOLDERS AND COMPANY
The obligations of the Stockholders and the Company with respect to
actions to be taken on the Closing Date are subject to the satisfaction or
waiver on or prior to the Closing Date of all of the following conditions. As
of the Closing Date, if any such applicable conditions have not been satisfied,
any one or more of the Stockholders who would be entitled to receive a majority
of the Aggregate Consideration (as defined herein) received by all Stockholders
if the transactions contemplated hereby were consummated shall have the right
to waive any condition not so satisfied. Any act or action of the Stockholders
in consummating the Closing or delivering the certificates representing Company
Stock as of the Closing Date shall constitute a waiver of any conditions not so
satisfied. However, no such waiver shall be deemed to affect the survival of
the representations and warranties of AmPaM contained in Section 6 hereof.
8.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF OBLIGATIONS. All
representations and warranties of AmPaM contained in Section 6 shall be true
and correct as of the Closing Date as though such representations and
warranties had been made as of that time; all of the terms, covenants and
conditions of this Agreement to be complied with and performed by AmPaM on or
before the Closing Date shall have been duly complied with and performed in all
material respects; and certificates to the foregoing effect dated the Closing
Date and signed by the President or any Vice President of AmPaM shall have been
delivered to the Stockholders.
8.2 SATISFACTION. All actions, proceedings, instruments and documents
that are not within the control of the Company or the Stockholders and that are
required to carry out this Agreement or incidental hereto shall be reasonably
satisfactory to the Company, the Stockholders and their counsel.
8.3 NO LITIGATION. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or threatened to
restrain or prohibit the purchase and sale of the Company Stock.
8.4 OPINION OF COUNSEL. The Company shall have received opinions from
counsel for AmPaM, dated the Closing Date, addressed to the Company and the
Stockholders in the form annexed hereto as Annex III.
8.5 CONSENTS AND APPROVALS. All necessary consents of and filings with
any governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made; any waiting
periods under the Hart-Scott Act, if applicable, shall have expired or been
terminated; all consents and approvals of third parties listed on Schedule 6.9
shall have been obtained; and no action or proceeding shall have been
instituted or threatened to restrain or prohibit the purchase and sale of the
Company Stock and no governmental agency or body shall have taken any other
action or made any request of Company as a result of which Company deems it
inadvisable to proceed with the transactions hereunder.
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8.6 GOOD STANDING CERTIFICATES. AmPaM shall have delivered to the
Company a certificate, dated as of a date no later than ten days prior to the
Closing Date, duly issued by the Delaware Secretary of State and in each state
in which AmPaM is authorized to do business, showing that AmPaM is in good
standing and authorized to do business and that all state franchise and/or
income tax returns and taxes for AmPaM for all periods prior to the Closing
have been filed and paid.
8.7 NO MATERIAL ADVERSE CHANGE. No event or circumstance shall have
occurred which would constitute a Material Adverse Change with respect to AmPaM
from the date of the Private Placement Memorandum.
8.8 SECRETARY'S CERTIFICATE. The Company shall have received a
certificate or certificates, dated the Closing Date and signed by the secretary
of AmPaM, certifying the truth and correctness of attached copies of AmPaM's
Certificate of Incorporation (including amendments thereto), By-Laws (including
amendments thereto), and resolutions of the board of directors and, if
required, the stockholders of AmPaM approving AmPaM's entering into this
Agreement and the Other Agreements and the consummation of the transactions
contemplated hereby and thereby.
8.9 TAX MATTERS. The Stockholders shall have received an opinion of
Andrews & Kurth L.L.P., in substantially the form of Annex IV hereto, that the
AmPaM Plan of Organization will qualify as a tax-free transfer of property
under Section 351 of the Code and that the Stockholders will not recognize gain
to the extent the Stockholders exchange Company Stock for AmPaM Stock (but not
cash or other property) pursuant to this Agreement in connection with the AmPaM
Plan of Organization.
8.10 OTHER FOUNDING COMPANIES. The transactions contemplated by the
Other Agreements are consummated simultaneously with the consummation of the
transactions contemplated by this Agreement.
8.11 COMPANY RELEASE OF STOCKHOLDERS. The Company shall have delivered
to the Stockholders an instrument dated the Closing Date, in form reasonably
satisfactory to AmPaM and the Stockholders, which shall be effective only upon
the occurrence of the Closing Date, releasing each Stockholder who owns shares
of Company Stock as of the Consummation Date from (i) any and all claims of the
Company against the Stockholders, known and unknown, and (ii) obligations of
the Stockholders to the Company, except for (x) items specifically identified
on Schedule 5.10(a) and Schedule 5.15(b) as being claims of or obligations to
the Company and (y) continuing obligations to the Company relating to their
employment by the Company pursuant to any employment agreement entered into
pursuant to Section 8.11 hereof.
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8.12 STERLING CITY CAPITAL TRANSFER RESTRICTIONS. Sterling City
Capital, LLC and each of its Affiliates which owns AmPaM Stock shall have
entered into an agreement with AmPaM containing substantially the same terms
and conditions as are contained in Section 15 and Section 17.
8.13 ELECTION OF CHIEF EXECUTIVE OFFICER. AmPaM shall have taken all
corporate action necessary to elect Robert A. Christianson as Chief Executive
Officer of AmPaM effective immediately following the Closing Date.
8.14 FUNDING AVAILABILITY. AmPaM shall have entered into binding
agreements with financial institutions, lenders or investors that provide AmPaM
with sufficient funds to pay (i) the cash amounts specified in Annex I hereto
as payable to the Stockholders upon the Closing and (ii) the aggregate cash
amounts specified in Annex I to each of the Other Agreements as payable to the
stockholders of the Other Founding Companies upon the Closing; and all
conditions to the funding of the cash amounts necessary to make such payments
specified in the agreements related to such financing arrangements, other than
the closing of the transactions contemplated by this Agreement and the Other
Agreements, shall have been satisfied as of the Closing Date.
9. CONDITIONS PRECEDENT TO OBLIGATIONS OF AmPaM
The obligations of AmPaM with respect to actions to be taken on the
Closing Date are subject to the satisfaction or waiver on or prior to the
Closing Date of all of the following conditions. As of the Closing Date, if any
such conditions have not been satisfied, AmPaM shall have the right to
terminate this Agreement, or waive any such condition, but no such waiver shall
be deemed to affect the survival of the representations and warranties
contained in Section 5 hereof.
9.1 REPRESENTATIONS AND WARRANTIES; PERFORMANCE AND OBLIGATIONS. All
the representations and warranties of the Stockholders and the Company
contained in this Agreement shall be true and correct as of the Closing Date
with the same effect as though such representations and warranties had been
made on and as of such date; all of the terms, covenants and conditions of this
Agreement to be complied with or performed by the Stockholders and the Company
on or before the Closing Date shall have been duly performed or complied with
in all material respects; and the Stockholders shall have delivered to AmPaM
certificates dated the Closing Date and signed by them to such effect.
9.2 NO LITIGATION. No action or proceeding before a court or any other
governmental agency or body shall have been instituted or threatened to
restrain or prohibit the purchase and sale of the Company Stock.
9.3 SECRETARY'S CERTIFICATE. AmPaM shall have received a certificate,
dated the Closing Date and signed by the secretary of the Company, certifying
the truth and correctness of attached copies of the Company's Articles or
Certificate of Incorporation (including amendments thereto), By-Laws (including
amendments thereto), and resolutions of the board of directors and the
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Stockholders approving the execution and delivery of this Agreement by the
Company and the consummation by the Company of the transactions contemplated
hereby.
9.4 NO MATERIAL ADVERSE EFFECT. No event or circumstance shall have
occurred with respect to the Company which would constitute a Material Adverse
Effect, and the Company shall not have suffered any material loss or damages to
any of its properties or assets, whether or not covered by insurance, which
change, loss or damage materially affects or impairs the ability of the Company
to conduct its business.
9.5 STOCKHOLDERS' RELEASE. The Stockholders shall have delivered to
AmPaM an instrument dated the Closing Date which shall be effective only upon
the occurrence of the Closing releasing the Company and AmPaM from (i) any and
all claims of the Stockholders against the Company and AmPaM and (ii)
obligations of the Company and AmPaM to the Stockholders, except for (A) items
specifically identified on Schedule 5.31 as being claims of or obligations to
the Stockholders, (B) continuing obligations to Stockholders relating to their
employment by the Company pursuant to employment agreements entered into as
specified in Section 8.11 hereof, (C) obligations arising under this Agreement
or the transactions contemplated hereby and (D) claims of Stockholders against
the Company for unreimbursed business expenses incurred by the Stockholders on
behalf of the Company (other than expenses related to the transactions
contemplated by this Agreement) prior to the Closing Date or unreimbursed
medical expenses of the Stockholders incurred prior to the Closing Date which
are covered by the Company's existing health insurance coverage. In the event
that the Closing Date does not occur, then the release instrument referenced
herein shall be void and of no further force or effect.
9.6 SATISFACTION. All actions, proceedings, instruments and documents
that are not within the control of AmPaM and that are required to carry out the
transactions contemplated by this Agreement or incidental hereto shall have
been reasonably approved by counsel to AmPaM.
9.7 TERMINATION OF RELATED PARTY AGREEMENTS. Except as set forth on
Schedule 9.7, all existing agreements between the Company and the Stockholders
(and between the Company and entities controlled by the Stockholders) specified
on Schedule 5.31 shall have been terminated effective prior to or as of the
Closing Date without any payment being made by the Company other than payments
made for services rendered, materials provided or other benefits provided to
the Company prior to the Closing Date pursuant to the terms of such agreements
as in effect as of the date of this Agreement.
9.8 OPINION OF COUNSEL. AmPaM shall have received opinions from
counsel to the Company and the Stockholders, dated the Closing Date,
substantially in the form annexed hereto as Annex V.
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9.9 CONSENTS AND APPROVALS. All necessary consents of and filings with
any governmental authority or agency relating to the consummation of the
transactions contemplated herein shall have been obtained and made; any waiting
periods under the Hart-Scott Act, if applicable, shall have expired or been
terminated; all consents and approvals of third parties listed on Schedule
5.23(b)(2) shall have been obtained; and no action or proceeding shall have
been instituted or threatened to restrain or prohibit the purchase and sale of
the Company Stock and no governmental agency or body shall have taken any other
action or made any request of AmPaM as a result of which AmPaM deems it
inadvisable to proceed with the transactions hereunder.
9.10 GOOD STANDING CERTIFICATES. The Company shall have delivered to
AmPaM a certificate, dated as of a date no earlier than ten days prior to the
Closing Date, duly issued by the appropriate governmental authority in the
Company's state of incorporation and, unless waived by AmPaM, in each state in
which the Company is authorized to do business, showing the Company is in good
standing and authorized to do business and that all state franchise and/or
income tax returns and taxes for the Company for all periods prior to the
Closing have been filed and paid.
9.11 FUNDING AVAILABILITY. AmPaM shall have entered into binding
agreements with financial institutions, lenders or investors that provide AmPaM
with sufficient funds to pay (i) the cash amounts specified in Annex I hereto
as payable to the Stockholders upon the Closing and (ii) the aggregate cash
amounts specified in Annex I to each of the Other Agreements as payable to the
stockholders of the Other Founding Companies upon the Closing; and all
conditions to the funding of the cash amounts necessary to make such payments
specified in the agreements related to such financing arrangements, other than
the closing of the transactions contemplated by this Agreement and the Other
Agreements, shall have been satisfied as of the Closing Date.
9.12 FIRPTA CERTIFICATE. Each Stockholder shall have delivered to
AmPaM a certificate to the effect that he is not a foreign person pursuant to
Section 1.1445-2(b) of the Treasury regulations.
9.13 RESIGNATIONS OF DIRECTORS AND OFFICERS. Any directors of the
Company, other than those identified on Schedule 2.1, shall have resigned as
directors of the Company. Any officers of the Company, other than those
identified on Schedule 2.2, shall have resigned as officers of the Company.
10. COVENANTS OF AmPaM AND THE STOCKHOLDERS AFTER CLOSING
10.1 RELEASE FROM GUARANTEES; REPAYMENT OF CERTAIN OBLIGATIONS. AmPaM
shall use reasonable efforts to have the Stockholders released from any and all
guarantees of the Company's indebtedness, including bond obligations,
identified on Schedule 10.1. Prior to obtaining the release of such guarantees,
AmPaM shall provide its guarantee of such indebtedness to the lenders thereof.
In the event that AmPaM cannot obtain such releases from the lenders of any
such guaranteed indebtedness identified on Schedule 10.1 on or prior to 90 days
subsequent to the Closing Date, AmPaM shall promptly pay off or otherwise
refinance or retire such indebtedness such that the
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Stockholders' personal liability shall be released. AmPaM will indemnify the
Stockholders against any loss or damage suffered as a result of the personal
guarantees.
10.2 PRESERVATION OF TAX AND ACCOUNTING TREATMENT. Except as
contemplated by this Agreement, after the Closing Date, AmPaM shall not and
shall not permit any of its Subsidiaries to undertake any act that would
jeopardize the tax-free status of the exchange of Company Stock for AmPaM Stock
(but not cash or other property), including without limitation:
(a) the retirement or reacquisition, directly or indirectly,
of all or part of the AmPaM Stock issued in connection with the transactions
contemplated hereby; or
(b) the entering into of financial arrangements for the
benefit of the Stockholders other than as described in the Private Placement
Memorandum or as described in this Agreement.
10.3 PREPARATION AND FILING OF TAX RETURNS; PAYMENT OF TAXES.
(a) The Company, if possible, or otherwise the Stockholders
shall file or cause to be filed all income Tax Returns (federal, state, local
or otherwise) of any Acquired Party for all taxable periods that end on or
before the Closing Date, and shall permit AmPaM to review all such Tax Returns
prior to such filings. Unless the Company is a C corporation, the Stockholders
shall pay or cause to be paid all income Tax liabilities (in excess of all
amounts already paid with respect thereto or properly accrued or reserved with
respect thereto on the Financial Statements) with respect to the Company's
operations for all periods through and including the Closing Date.
(b) AmPaM shall file or cause to be filed all separate
Returns of, or that include, any Acquired Party for all taxable periods ending
after the Closing Date.
(c) Unless required by applicable law, regulations or
government proceedings, AmPaM shall not take any action, including any
amendment of a Tax Return of any Acquired Party, if such action would result in
additional Tax liabilities payable by any of the Stockholders for periods
ending on or prior to the Closing Date.
(d) Each party hereto shall, and shall cause its subsidiaries
and Affiliates to, provide to each of the other parties hereto such cooperation
and information as any of them reasonably may request in filing any Return,
amended Return or claim for refund, determining a liability for Taxes or a
right to refund of Taxes or in conducting any audit or other proceeding in
respect of Taxes. Such cooperation and information shall include providing
copies of all relevant portions of relevant Returns, together with relevant
accompanying schedules and relevant work papers, relevant documents relating to
rulings or other determinations by Taxing Authorities and relevant records
concerning the ownership and Tax basis of property, which such party may
possess. Each party shall make its employees reasonably available on a mutually
convenient basis at its cost to provide explanation of any documents or
information so provided. Subject to the preceding
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sentence, each party required to file Returns pursuant to this Agreement shall
bear all costs of filing such Returns.
(e) Each of the Company, AmPaM and each Stockholder shall
comply with the tax reporting requirements of Section 1.351-3 of the Treasury
Regulations promulgated under the Code, and treat the transaction as a tax-free
contribution under Section 351(a) of the Code subject to gain, if any,
recognized on the receipt of cash or other property under Section 351(b) of the
Code.
10.4 DIRECTORS. The persons named in the Private Placement Memorandum
shall be appointed as directors and elected as officers of AmPaM, as and to the
extent set forth in the Private Placement Memorandum, promptly following the
Closing Date; provided, however, that the parties hereto acknowledge that if
the Company consummates an IPO, the persons who will serve as directors and
executive officers of AmPaM will be adjusted as appropriate for a publicly
traded entity, with any such changes being subject to the approval of the
majority of the Board of Directors of AmPaM.
10.5 LEGAL OPINIONS. If required by the lenders pursuant to the terms
of any agreements related to financing of the cash amounts referred to in
Section 9.11 hereof, the Company shall cause its counsel to deliver to such
lenders, at the Closing, an opinion of counsel in substantially the form
attached hereto as Annex V.
11. INDEMNIFICATION
The Stockholders and AmPaM each make the following covenants that are
applicable to them, respectively:
11.1 GENERAL INDEMNIFICATION BY THE STOCKHOLDERS.
(a) Each Stockholder covenants and agrees that such Stockholder will
indemnify, defend, protect and hold harmless AmPaM at all times, from and after
the date of this Agreement until the applicable Expiration Date (as defined in
the introductory paragraph to Section 5(A)), provided that for purposes of
clause (iii) below, the applicable Expiration Date shall be the date on which
the applicable statute of limitations expires), from and against all claims,
damages, actions, suits, proceedings, demands, assessments, adjustments, costs
and expenses (including specifically, but without limitation, reasonable
attorneys' fees and expenses of investigation) incurred by AmPaM as a result of
or arising from (i) any breach of the representations and warranties of the
Company set forth herein or on the schedules attached hereto or certificates
delivered pursuant to this Agreement, (ii) any breach of any covenant or
agreement on the part of the Company under this Agreement, or (iii) any
liability under the 1933 Act or any Federal or state securities law or
regulation, at common law or otherwise, arising out of or based upon any untrue
statement or alleged untrue statement of a material fact relating solely to the
Company which was based upon information provided to AmPaM or its counsel in
writing by the Company specifically for inclusion in the Private Placement
Memorandum and is contained in the Private Placement Memorandum, or any
amendment thereof
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or supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact relating to the Company required to
be stated therein or necessary to make the statements therein not misleading;
provided, however, that (i) no Stockholder shall be liable for any
indemnification obligation pursuant to this Section 11.1 in excess of such
Stockholder's pro rata share thereof determined by reference to the aggregate
value of the Base Cash Amount (as defined in Annex I of this Agreement), the
principal amount of AmPaM Notes and the shares of AmPaM Stock (valued at a
price of $13.00 per share) received by such Stockholder pursuant to Section
I.A. of Annex I hereto (without giving effect to the adjustments provided in
Sections I.B. and I.C. thereof) (giving effect to the value of such AmPaM Stock
and without giving effect to such adjustments, collectively, the "Aggregate
Consideration") such Stockholder would receive pursuant to Section I of Annex I
of this Agreement if the transactions contemplated hereby were consummated in
relation to the Aggregate Consideration all Stockholders would receive pursuant
to Section I of Annex I of this Agreement if the transactions contemplated
hereby were consummated and (ii) the indemnity obligations in this Section
11.1(a) shall not be applicable to any Stockholder who has sold all of his
shares of Company Stock to the other Stockholder prior to the Closing Date.
(b) Each Stockholder covenants and agrees that such Stockholder will
indemnify, defend, protect and hold harmless AmPaM at all times, from and after
the date of this Agreement, from and against all claims, damages, actions,
suits, proceedings, demands, assessments, adjustments, costs and expenses
(including specifically, but without limitation, reasonable attorneys' fees and
expenses of investigation) incurred by AmPaM as a result of or arising from (i)
any breach of the representations and warranties of such Stockholder set forth
in Section 5(B) hereof, (ii) any breach of any covenant or agreement on the
part of such Stockholder under this Agreement, or (iii) any liability under the
1933 Act or any Federal or state securities law or regulation, at common law or
otherwise, arising out of or based upon any untrue statement or alleged untrue
statement of a material fact relating solely to such Stockholder which was
based upon information provided to AmPaM or its counsel in writing by such
Stockholder specifically for inclusion in the Private Placement Memorandum and
is contained in the Private Placement Memorandum, or any amendment thereof or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact relating solely to such Stockholder
required to be stated therein or necessary to make the statements therein in
light of the circumstances in which such statements were made not misleading;
provided, however, that such indemnity shall not be applicable to any
Stockholder who has sold all of his shares of Company Stock to the other
Stockholder prior to the Closing Date.
(c) AmPaM acknowledges and agrees that other than the representations
and warranties of the Company or the Stockholders specifically contained in
this Agreement, there are no representations or warranties of the Company or
the Stockholders, either express or implied, with respect to the transactions
contemplated by this Agreement, the Company or its assets, liabilities and
business.
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11.2 INDEMNIFICATION BY AmPaM. AmPaM covenants and agrees that it will
indemnify, defend, protect and hold harmless the Company and the Stockholders
at all times from and after the date of this Agreement until the applicable
Expiration Date (as defined in the introductory paragraph of Section 6,
provided that for purposes of clause (iii) below, the applicable Expiration
Date shall be the date on which the applicable statute of limitations expires),
from and against all claims, damages, actions, suits, proceedings, demands,
assessments, adjustments, costs and expenses (including specifically, but
without limitation, reasonable attorneys' fees and expenses of investigation)
incurred by the Company or the Stockholders as a result of or arising from (i)
any breach by AmPaM of its representations and warranties set forth herein or
on the schedules attached hereto or certificates delivered pursuant to this
Agreement, (ii) any breach of any agreement on the part of AmPaM under this
Agreement; or (iii) any liability under the 1933 Act or any Federal or state
securities law or regulation, at common law or otherwise, arising out of or
based upon any untrue statement or alleged untrue statement of a material fact
contained in the Private Placement Memorandum, or any amendment thereof or
supplement thereto, or arising out of or based upon any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except to the extent
such is based upon an untrue statement or alleged untrue statement, or omission
or alleged omission, made therein in reliance upon, and in conformity with, the
representations and warranties of the Company or the Stockholders specifically
contained in this Agreement or other information furnished to AmPaM by the
Company or the Stockholders in writing specifically for inclusion therein.
11.3 THIRD PERSON CLAIMS. Promptly after any party hereto (hereinafter
the "Indemnified Party") has received notice of or has knowledge of any claim
by a person not a party to this Agreement ("Third Person"), or the commencement
of any action or proceeding by a Third Person, the Indemnified Party shall, as
a condition precedent to a claim with respect thereto being made against any
party obligated to provide indemnification pursuant to Section 11.1 or 11.2
hereof (hereinafter the "Indemnifying Party"), give the Indemnifying Party
written notice of such claim or the commencement of such action or proceeding.
Such notice shall state the nature and the basis of such claim and a reasonable
estimate of the amount thereof. The Indemnifying Party shall have the right to
defend and settle, at its own expense and by its own counsel reasonably
satisfactory to the Indemnified Party, any such matter so long as the
Indemnifying Party pursues the same in good faith and diligently, provided that
the Indemnifying Party shall not settle any criminal proceeding without the
written consent of the Indemnified Party. If the Indemnifying Party undertakes
to defend or settle, it shall promptly notify the Indemnified Party of its
intention to do so, and the Indemnified Party shall cooperate with the
Indemnifying Party and its counsel in the defense thereof and in any settlement
thereof. Such cooperation shall include, but shall not be limited to,
furnishing the Indemnifying Party with any books, records or information
reasonably requested by the Indemnifying Party that are in the Indemnified
Party's possession or control. All Indemnified Parties shall use the same
counsel, which shall be the counsel selected by Indemnifying Party, provided
that if counsel to the Indemnifying Party shall have a conflict of interest or
a conflict of interest is reasonably likely to arise that prevents counsel for
the Indemnifying Party from representing such Indemnified Party, Indemnified
Party shall have the right to participate in such matter through counsel of its
own choosing and Indemnifying Party will reimburse the Indemnified Party for
the reasonable expenses
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of its counsel. After the Indemnifying Party has notified the Indemnified Party
of its intention to undertake to defend or settle any such asserted liability,
and for so long as the Indemnifying Party diligently pursues such defense, the
Indemnifying Party shall not be liable for any additional legal expenses
incurred by the Indemnified Party in connection with any defense or settlement
of such asserted liability, except (i) as set forth in the preceding sentence
and (ii) to the extent such participation is requested by the Indemnifying
Party, in which event the Indemnified Party shall be reimbursed by the
Indemnifying Party for reasonable additional legal expenses and out-of-pocket
expenses. If the Indemnifying Party desires to accept a final and complete
settlement of any such Third Person claim and the Indemnified Party refuses to
consent to such settlement, then the Indemnifying Party's liability under this
Section with respect to such Third Person claim shall be limited to the amount
so offered in settlement by said Third Person. Upon agreement as to such
settlement between said Third Person and the Indemnifying Party, the
Indemnifying Party shall, in exchange for a complete release from the
Indemnified Party, promptly pay to the Indemnified Party the amount agreed to
in such settlement. If the Indemnifying Party does not undertake to defend such
matter to which the Indemnified Party is entitled to indemnification hereunder,
or fails diligently to pursue such defense, the Indemnified Party may undertake
such defense through counsel of its choice, at the cost and expense of the
Indemnifying Party, and the Indemnified Party may settle such matter, and the
Indemnifying Party shall pay the Indemnified Party for the settlement amount
and any other liabilities or expenses incurred by the Indemnified Party in
connection therewith, provided, however, that under no circumstances shall the
Indemnified Party settle any Third Person claim without the written consent of
the Indemnifying Party, which consent shall not be unreasonably withheld or
delayed. All settlements hereunder shall effect a complete release of the
Indemnified Party, unless the Indemnified Party otherwise agrees in writing.
With respect to any account, note or other receivable as to which the
Stockholders have paid in full any indemnification obligation pursuant to this
Section 11 as a result of a breach of the representation and warranty made
pursuant to Section 5.11 or as to which a claim in respect thereof has been
asserted pursuant to this Section 11 that has been applied against the
Indemnification Threshold with respect to the Stockholders as a result of a
breach of the representation and warranty made pursuant to Section 5.11, AmPaM
shall cause the Company to assign such account, note or other receivable to the
Stockholders. The parties hereto will make appropriate adjustments for
insurance proceeds in determining the amount of any indemnification obligation
under this Section.
11.4 EXCLUSIVE REMEDY. The indemnification provided for in this
Section 11 shall (except as prohibited by ERISA) be the exclusive remedy in any
action seeking damages or any other form of monetary relief brought by any
party to this Agreement against another party to this Agreement with respect to
any provision of this Agreement, provided that, nothing herein shall be
construed to limit the right of a party, in a proper case, to seek injunctive
relief for a breach of this Agreement. AmPaM hereby waives, to the fullest
extent permitted under applicable law, any and all other rights, claims and
causes of action, known or unknown, it or any indemnified person may have
against the Company or any Stockholder relating to this Agreement or the
transactions pursuant to this Agreement arising under or based upon any
Federal, state, local or foreign statute, law, rule, regulation or otherwise.
Any indemnity payment under this Section 11 shall be treated as an adjustment
to the exchange consideration for Tax purposes unless a final determination
(which shall
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include the execution of a Form 870-AD or successor form) with respect to the
Indemnified Party or any of its Affiliate causes any such payment not to be
treated as an adjustment to the exchange consideration for U.S. Federal income
Tax purposes.
11.5 LIMITATIONS ON INDEMNIFICATION. (a) AmPaM shall not assert any
claim for indemnification under this Section 11 against the Stockholders until
such time as, and solely to the extent that, the aggregate of all claims which
AmPaM may have against the Stockholders shall exceed the greater of (a) 3.0% of
the sum of (i) the cash paid to the Stockholders pursuant to Section 1.2 plus
(ii) the value of the AmPaM Stock delivered to the Stockholders pursuant to
Section 1.2 (calculated as provided in this Section 11.5) plus (iii) the
principal amount of the AmPaM Notes delivered to the Stockholders pursuant to
Section 1.2, or (b) $50,000 (the "Indemnification Threshold"). Stockholders
shall not assert any claim for indemnification hereunder against AmPaM until
such time as, and solely to the extent that, the aggregate of all claims which
Stockholders may have against AmPaM shall exceed $50,000; provided, however,
that this sentence shall not be applicable with respect of any failure by AmPaM
to (i) deliver the consideration specified in Annex I hereto on the Closing
Date upon the satisfaction, or waiver by AmPaM, of all conditions to the
occurrence of the Closing Date specified in Section 9 or (ii) comply with its
obligations pursuant to Section 10.1. After the $50,000 threshold for AmPaM
(subject to the proviso in the preceding sentence) or the Indemnification
Threshold for a Stockholder has been met, all claims must be made in $10,000
increments, which claims may be cumulated in order to meet such $10,000
thresholds. For purposes of this paragraph, the AmPaM Stock delivered to the
Stockholders shall be valued at $13.00 per share.
(b) No person shall be entitled to indemnification under this Section
11 if and to the extent that such person's claim for indemnification is
directly or indirectly related to a breach by such person of any
representation, warranty, covenant or other agreement set forth in this
Agreement. No claim for indemnification against the Stockholders shall limit,
diminish or change any obligation of AmPaM pursuant to Section 10.1 hereof.
(c) Notwithstanding any other term of this Agreement, no Stockholder
shall be liable under this Section 11 for an amount which exceeds eighty-five
percent (85%) of the amount of proceeds received by such Stockholder (valued as
of the Closing Date) in connection with the purchase and sale of the Company
Stock. For purposes of this paragraph, the AmPaM Stock shall be valued at
$13.00 per share.
(d) A Stockholder may pay any indemnification obligation under Section
11 by means of the payment of cash or a combination of the payment of cash, the
forgiveness of amounts owed pursuant to the AmPaM Notes and the delivery to
AmPaM of shares of AmPaM Stock; provided that the percentage of the
indemnification obligation satisfied by means of the delivery of shares of
AmPaM Stock does not exceed the percentage of AmPaM Stock comprising the total
consideration paid to such Stockholder by AmPaM to such Stockholder pursuant to
Annex I. For the purpose of crediting Stockholders for payments made to AmPaM
by means of delivery of shares of AmPaM Stock, the AmPaM Stock shall be valued
at $13.00 per share.
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(e) In determining the amount of any loss, liability or expense for
which any party is entitled to indemnification under this Agreement, the gross
amount thereof will be reduced by any correlative insurance proceeds or other
third party indemnity or reimbursement proceeds realized or to be realized by
such party (or, in the case of AmPaM, by AmPaM, the Company or any subsidiary
of AmPaM or the Company) and such correlative insurance proceeds or other third
party indemnity or reimbursement proceeds shall be net of any insurance premium
or other incremental cost or expense owed or payable to any third party which
becomes due as a result of such claim. AmPaM shall use commercially reasonable
efforts to pursue any available insurance coverage or other rights of indemnity
or reimbursement from third parties with respect to any such loss, liability or
expense.
12. TERMINATION OF AGREEMENT
12.1 TERMINATION. This Agreement may be terminated at any time prior
to the Closing Date solely:
(i) by mutual consent of AmPaM and the Stockholders;
(ii) by the Stockholders, if the transactions contemplated by
this Agreement to take place at the Closing Date shall not have been
consummated by June 30, 1999, unless the failure of such transactions
to be consummated is due to a breach of this Agreement by the Company
or the Stockholders prior to or on the Closing Date;
(iii) by AmPaM, if the transactions contemplated by this
Agreement to take place at the Closing Date shall not have been
consummated by June 30, 1999, unless the failure of such transactions
to be consummated is due to a breach of this Agreement by AmPaM prior
to or on the Closing Date;
(iv) by the Stockholders, if a material breach or default
shall be made by AmPaM in the observance or in the due and timely
performance of any of the covenants or agreements contained herein
relating to AmPaM, and the curing of such default shall not have been
made (or in the reasonable judgment of such Stockholders cannot be
made) on or before the Closing Date;
(v) by AmPaM, if a material breach or default shall be made
by the Company or the Stockholders in the observance or in the due and
timely performance of any of the covenants or agreements contained
herein relating to the Company or the Stockholders, and the curing of
such default shall not have been made (or in the reasonable judgment
of AmPaM cannot be made) on or before the Closing Date;
(vi) by the Stockholders, if the conditions set forth in
Section 8 hereof have not been satisfied or waived as of the Closing
Date; or
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(vii) by AmPaM, if the conditions set forth in Section 9
hereof have not been satisfied or waived as of the Closing Date.
12.2 PROCEDURE AND EFFECT OF TERMINATION. A determination to terminate
this Agreement by AmPaM pursuant to Section 12.1 shall be valid and effective
only if a written notice of termination, accompanied by a certified copy of
resolutions of the board of directors of AmPaM that evidence the authorization
of the officer of AmPaM to deliver a written notice of termination of this
Agreement pursuant to Section 12.1, is given to the Stockholders in the manner
specified for notices in this Agreement. A determination to terminate this
Agreement by the Stockholders pursuant to Section 12.1 shall be valid and
effective only if a written notice of termination, signed by Stockholders who
would be entitled to receive a majority of the shares of AmPaM Stock specified
in Section I of Annex I to this Agreement if the transactions contemplated
hereby were consummated, is given to AmPaM in the manner specified for notices
in this Agreement. Upon the giving of notice of termination of this Agreement
pursuant to Section 12.1 as specified in the preceding sentence, this Agreement
shall terminate, and the transactions contemplated hereby shall be abandoned,
without further action by any of the parties hereto. Immediately upon any such
termination, AmPaM shall deliver written notice of such termination to the
Other Founding Companies. If this Agreement is terminated as provided in this
Section 12, no party hereto shall have any liability or further obligation
hereunder to any other party, except as provided in Section 14 and Section
18.6, provided, that, the termination of this Agreement will in no way limit
any obligation or liability of any party based on or arising from a breach or
default by such party with respect to any of its representations, warranties,
covenants or agreements contained in this Agreement including, but not limited
to, legal and audit costs and out of pocket expenses that occurred prior to
such termination.
13. NONCOMPETITION
13.1 PROHIBITED ACTIVITIES. Robert C. Richey will not, without the
prior written consent of AmPaM, for a period of two (2) years following the
Closing Date, for any reason whatsoever, directly or indirectly, for themselves
or on behalf of or in conjunction with any other person, persons, company,
partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, whether paid or unpaid, in any plumbing, piping,
mechanical, heating, ventilation or air conditioning contracting,
installation or services business or operation, whether for
residential, commercial, industrial or governmental customers, or any
ancillary contracting, installation or services business directly
related thereto (such business and operations referred to herein as
the "Plumbing and Mechanical Business"), within 100 miles of where the
Company or any of its subsidiaries conducted business within two (2)
years prior to the Closing Date (the "Territory");
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(ii) call upon any person who is, at the Closing Date, within
the Territory, an employee of AmPaM or any subsidiary thereof for the
purpose or with the intent of enticing such employee away from or out
of the employ of AmPaM or any subsidiary thereof;
(iii) call upon any person or entity which is, at the Closing
Date, or which has been within three (3) years prior to the Closing
Date, a customer of AmPaM or any subsidiary thereof, of the Company or
of any of the Other Founding Companies for the purpose of soliciting
customers, orders or contracts for any Plumbing and Mechanical
Business in direct competition with AmPaM within the Territory;
(iv) call upon any prospective acquisition candidate, on any
Stockholder's own behalf or on behalf of any competitor in the
Plumbing and Mechanical Business, which candidate, to the actual
knowledge of such Stockholder after due inquiry, was called upon by
AmPaM or any subsidiary thereof or for which, to the actual knowledge
of such Stockholder after due inquiry, AmPaM or any subsidiary thereof
made an acquisition analysis, for the purpose of acquiring such
entity; or
(v) disclose to any person, firm, partnership, corporation or
business the names or identities of any person, firm, partnership,
corporation or business which has been a customer of the Company or
any of its subsidiaries within the two (2) years prior to the Closing
Date for any reason or purpose whatsoever except to the extent that
the Company has in the past disclosed such information to the public
for valid business reasons; or
(vi) testify as an expert witness in matters related to the
Plumbing and Mechanical Business for an adverse party to AmPaM, the
Company or any Other Founding Companies in litigation.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit any Stockholder from acquiring as a passive investment (i) not more
than one percent (1%) of the capital stock of a competing business whose stock
is traded on a national securities exchange, the NASDAQ Stock Market or
over-the-counter, or (ii) not more than five percent (5%) of the capital stock
of a competing business whose stock is not publicly traded if the Board of
Directors of AmPaM consents to such acquisition.
13.2 PROHIBITED ACTIVITIES (BAKER). Thomas L. Baker ("Baker") will
not, without the prior written consent of AmPaM, for the period from the date
of this Agreement through the second anniversary thereof (the "Baker Restricted
Period"), for any reason whatsoever, directly or indirectly, for himself or on
behalf of or in conjunction with any other person, persons, company,
partnership, corporation or business of whatever nature, including any employee
thereof:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer, or in a managerial capacity, whether as an
employee, independent contractor, consultant or
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adviser, or as a sales representative, whether paid or unpaid, in the
Plumbing and Mechanical Business in the state of Nevada;
(ii) bid on or enter into an agreement to perform any work
which would constitute Plumbing and Mechanical Business for which
actual work will commence before the expiration of the Baker
Restricted Period for any of the following builders:
(a) S&S Construction Co.
(b) Kaufman & Broad/Lewis
(c) Presley Homes
(d) Barratt American, Inc.
(e) Forecast Group
(f) Centex
(g) Ryland;
(iii) bid or enter into an agreement to perform any work
which would constitute Plumbing and Mechanical Business involving a
continuing phase of any phased project for which the Company has
contracted, regardless of the builder, unless Baker is advised in
writing by the builder of such project that such builder does not
intend to employ or contract with the Company for such continuing
phase or phases;
(iv) call upon any person who is, at the Closing Date, an
employee of the Company, for the purpose or with the intent of
enticing such employee away from or out of the employ of the Company;
(v) (a) employ more than a total of thirteen (13) R.C.R.
Employees (as defined below) at any time during the first twelve
months of the Baker Restricted Period and (b) employ more than a total
of twenty-nine (29) R.C.R. Employees at any time during the second
twelve months of the Baker Restricted Period. The term "R.C.R.
Employees" shall mean any person who is an active employee of the
Company as of February 28, 1999, but shall not include any person who
is laid off or whose employment is terminated, by the Company, or any
of Baker's children.
(vi) conduct a business having gross sales from the Plumbing
and Mechanical Business in excess of $3,000,000 for the year ending
December 31, 1999 and $5,000,000 for the year ending December 31,
2000; or
(vii) except as required by process of law, disclose, reveal
or furnish to any other person, entity or government agency, any
"Trade Secret" acquired during Baker's employment with the Company,
whether prepared by him or otherwise coming into his possession. The
term "Trade Secret" shall have the meaning provided in the Uniform
Trade Secrets Act, Section 3426.1(d) of the California Civil Code.
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The Company will not, without the prior written consent of
Baker, for the Baker Restricted Period, for any reason whatsoever, directly or
indirectly, for itself or on behalf of or in conjunction with any other person,
persons, company, partnership, corporation or business of whatever nature, bid
or enter into an agreement to perform any work which would constitute Plumbing
and Mechanical Business involving a continuing phase of any project for which
Baker has contracted, regardless of the builder, unless the Company is advised
in writing by the builder of such project that such builder does not intend to
employ or contract with Baker for such continuing phase or phases.
13.3 DAMAGES. Because of the difficulty of measuring economic losses
to AmPaM as a result of a breach of the foregoing covenant, and because of the
immediate and irreparable damage that could be caused to AmPaM for which it
would have no other adequate remedy, each Stockholder agrees that the foregoing
covenant may be enforced by AmPaM in the event of breach by such Stockholder,
by injunctions and restraining orders.
13.4 REASONABLE RESTRAINT. It is agreed by the parties hereto that the
foregoing covenants in this Section 13 impose a reasonable restraint on the
Stockholders in light of the activities and business of AmPaM and the
subsidiaries thereof on the date of the execution of this Agreement and the
current plans of AmPaM as described in the Private Placement Memorandum.
13.5 SEVERABILITY; REFORMATION. The covenants in this Section 13 are
severable and separate, and the unenforceability of any specific covenant shall
not affect the provisions of any other covenant. Moreover, in the event any
court of competent jurisdiction shall determine that the scope, time or
territorial restrictions set forth are unreasonable, then it is the intention
of the parties that such restrictions be enforced to the fullest extent which
the court deems reasonable, and the Agreement shall thereby be reformed.
13.6 INDEPENDENT COVENANT. All of the covenants in this Section 13
shall be construed as an agreement independent of any other provision in this
Agreement, and the existence of any claim or cause of action of any Stockholder
against AmPaM or any subsidiary thereof, whether predicated on this Agreement
or otherwise, shall not constitute a defense to the enforcement by AmPaM of
such covenants. It is specifically agreed that the period of two (2) years
stated at the beginning of this Section 13, during which the agreements and
covenants of each Stockholder made in this Section 13 shall be effective, shall
be computed by excluding from such computation any time during which such
Stockholder is found to be in violation of any provision of this Section 13 as
determined by any of (i) a written agreement to such effect executed and
delivered by AmPaM and such Stockholder, (ii) a determination by an arbitration
panel pursuant to an arbitration conducted pursuant to Section 18.16 hereof or
(iii) a non-appealable judgment of a court of competent jurisdiction. The
covenants contained in Section 13 shall not be affected by any breach of any
other provision hereof by any party hereto. The covenants contained in Section
13 shall have no effect if the transactions contemplated by this Agreement are
not consummated.
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13.7 MATERIALITY. The Company and the Stockholders hereby agree that
the covenants contained in this Section 13 are a material and substantial part
of this transaction.
14. NONDISCLOSURE OF CONFIDENTIAL INFORMATION
14.1 STOCKHOLDERS. Robert C. Richey recognizes and acknowledges that
he had in the past, currently has, and in the future may possibly have, access
to certain confidential information of the Company, the Other Founding
Companies, and/or AmPaM, such as operational policies, customer lists, and
pricing and cost policies that are valuable, special and unique assets of the
Company's, the Other Founding Companies' and/or AmPaM's respective businesses.
Robert C. Richey agrees that he will not disclose such confidential information
to any person, firm, corporation, association or other entity for any purpose
or reason whatsoever, except (a) to authorized representatives of AmPaM, (b)
following the Closing, such information may be disclosed by Robert C. Richey as
is required in the course of performing his duties for AmPaM or the Company and
(c) to its counsel and other advisers, provided that such advisers (other than
counsel) agree to the confidentiality provisions of this Section 14.1;
provided, however that (i) the foregoing disclosure prohibition shall not apply
in the event that (i) such information becomes known to the public generally
through no fault of Robert C. Richey, (ii) disclosure is required by law or the
order of any governmental authority under color of law, provided, that prior to
disclosing any information pursuant to this clause (ii), Robert C. Richey
shall, if possible, give prior written notice thereof to AmPaM and provide
AmPaM with the opportunity to contest such disclosure, or (iii) the disclosing
party reasonably believes that such disclosure is required in connection with
the defense of a lawsuit against the disclosing party. In the event of a breach
or threatened breach by Robert C. Richey of the provisions of this Section,
AmPaM shall be entitled to an injunction restraining Robert C. Richey from
disclosing, in whole or in part, such confidential information. Nothing herein
shall be construed as prohibiting AmPaM from pursuing any other available
remedy for such breach or threatened breach, including the recovery of damages.
In the event the transactions contemplated by this Agreement are not
consummated, Robert C. Richey shall have none of the above-mentioned
restrictions on their ability to disseminate confidential information with
respect to the Company.
14.2 AmPaM. AmPaM recognizes and acknowledges that it had in the past
and currently has access to certain confidential information of the Company,
such as operational policies, customer lists, and pricing and cost policies
that are valuable, special and unique assets of the Company's business. AmPaM
agrees that, prior to the Closing, or if the transactions contemplated by this
Agreement are not consummated, it will not disclose such confidential
information to any person, firm, corporation, association or other entity for
any purpose or reason whatsoever, except (a) to authorized representatives of
the Company, (b) to its counsel and other advisers, provided that such advisers
(other than counsel) agree to the confidentiality provisions of this Section
14.2, (c) to the Other Founding Companies and their representatives pursuant to
Section 7.1(b) of the Other Agreements and (d) to potential purchasers of
securities of AmPaM to the extent necessary or advisable in connection with the
applicable securities laws; provided, however that the foregoing disclosure
prohibition shall not apply in the event that (A) such information becomes
known to the public generally through no fault of AmPaM, (B) disclosure is
required by law or the order of any
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governmental authority under color of law, provided, that prior to disclosing
any information pursuant to this clause (B), AmPaM shall, if possible, give
prior written notice thereof to the Company and the Stockholders and provide
the Company and the Stockholders with the opportunity to contest such
disclosure, or (C) the disclosing party reasonably believes that such
disclosure is required in connection with the defense of a lawsuit against the
disclosing party. In the event of a breach or threatened breach by AmPaM of the
provisions of this Section 14.2, the Company and the Stockholders shall be
entitled to an injunction restraining AmPaM from disclosing, in whole or in
part, such confidential information. Nothing herein shall be construed as
prohibiting the Company and the Stockholders from pursuing any other available
remedy for such breach or threatened breach, including the recovery of damages.
In the event the transactions contemplated by this Agreement are not
consummated for any reason, AmPaM shall nevertheless remain subject to this
Section 14.2, except that it shall not be permitted to make any disclosures
otherwise than pursuant to clause (A), (B) or (C) above.
14.3 DAMAGES. Because of the difficulty of measuring economic losses
as a result of the breach of the foregoing covenants in Sections 14.1 and 14.2,
and because of the immediate and irreparable damage that would be caused for
which they would have no other adequate remedy, the parties hereto agree that,
in the event of a breach by any of them of the foregoing covenants, the
covenant may be enforced against the other parties by injunctions and
restraining orders.
14.4 SURVIVAL. The obligations of the parties under this Article 14
shall survive the termination of this Agreement for a period of five years from
the Closing Date.
14.5 RETURN OF INFORMATION. If the transactions contemplated by this
Agreement are not consummated, AmPaM will return or destroy all confidential
information regarding the Company.
15. TRANSFER RESTRICTIONS
15.1 TRANSFER RESTRICTIONS RELATING TO AmPaM STOCK AND AmPaM NOTES.
For a period of two years from the Closing Date or, in the event that the
Company completes an IPO, for a period through the second anniversary of the
date of the closing of such IPO (the "Restricted Period"), no Stockholder shall
(i) sell, assign, exchange, transfer, pledge, or otherwise dispose of any
shares of AmPaM Stock or AmPaM Notes received by the Stockholders pursuant to
this Agreement or any securities convertible into, exchangeable or exercisable
for any shares of AmPaM Stock or AmPaM Notes received by such Stockholder
pursuant to this Agreement, (ii) grant any option to purchase, or otherwise
enter into any contract to sell, assign, transfer, pledge or otherwise dispose
of, any shares of AmPaM Stock or AmPaM Notes received by such Stockholder
pursuant to this Agreement, or (iii) enter into any swap or any other agreement
or any transaction that transfers, in whole or in part, directly or indirectly,
the economic consequence of ownership of the AmPaM Stock or AmPaM Notes,
whether any such swap or transaction is to be settled by delivery of shares of
AmPaM Stock or AmPaM Notes or other securities, by the delivery or payment of
cash or otherwise, except, in the case of clauses (i), (ii) or (iii) above, (A)
as otherwise agreed by AmPaM, (B) for the sale of shares of AmPaM Stock, and
entering into agreements relating to the sale of shares of AmPaM Stock,
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pursuant to Section 17 hereof, (C) for transfers to (I) immediate family
members of such Stockholder who agree with AmPaM in writing to be bound by the
restrictions set forth in this Section 15.1, (II) trusts, limited partnerships
or other estate planning entities for the benefit of such Stockholder or family
members of such Stockholder which have agreed with AmPaM in writing, through
action taken by the trustees, partners or other persons having authority to
bind the trust, limited partnership or other estate planning entity, to be
bound by the restrictions set forth in this Section 15.1, (III) any charitable
organization that qualifies for receipt of charitable contributions under
Section 170(c) of the Code which agrees with AmPaM in writing to be bound by
the restrictions set forth in this Section 15.1, (D) for transfers of AmPaM
Stock or AmPaM Notes to AmPaM pursuant to Section 11.5(d), (E) for transfers to
another Stockholder, to another person or entity who receives shares of AmPaM
Stock or AmPaM Notes or AmPaM Series A Preferred Stock pursuant to the Other
Agreements or to Sterling City Capital LLC or any of its Affiliates provided
that (1) such transaction is exempt from the registration requirements of the
1933 Act as evidenced by the delivery to AmPaM of an opinion of counsel in form
and substance reasonably satisfactory to AmPaM and (2) any such transferee
agrees in writing to be bound by the restrictions set forth in this Section
15.1, (F) transfers of shares of AmPaM Notes, shares of AmPaM Stock, or grants
of options to purchase shares of AmPaM Stock, by such Stockholder to employees
of the Company of up to an aggregate of 15% of the shares of AmPaM Stock
received by such Stockholder pursuant to this Agreement provided that (1) any
such transaction is exempt from the registration requirements of the 1933 Act
as evidenced by the delivery to AmPaM of an opinion of counsel in form and
substance reasonably satisfactory to AmPaM and (2) any such employee agrees
with AmPaM in writing to be bound by the restrictions set forth in this Section
15.1 or (G) the sale by such Stockholder in an IPO of shares of AmPaM Stock
representing not more than 10% of the Aggregate Consideration in cash;
provided, however, that in no circumstance will a Stockholder be entitled to
sell shares of AmPaM Stock in an IPO to the extent that the sale of such shares
by such Stockholder would result in such Stockholder receiving in excess of 45%
of the Aggregate Consideration in cash; and, provided further, if AmPaM is
advised in writing in good faith by any managing underwriter of an underwritten
offering of the securities being offered pursuant to any registration statement
under Section 17.1 that the number of shares to be sold by persons other than
AmPaM is greater than the number of such shares which can be offered without
adversely affecting the success of the offering, AmPaM may reduce pro rata
(among the Stockholders and all other selling security holders in the offering)
the number of shares offered for the accounts of such persons (based upon the
number of shares held by such person) to a number deemed satisfactory by such
managing underwriter. During the Restricted Period, the certificates evidencing
the AmPaM Stock or AmPaM Notes delivered to the Stockholders pursuant to
Section 3 of this Agreement will bear a legend substantially in the form set
forth below:
THE [SHARES/NOTES] REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, ASSIGNED,
EXCHANGED, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO THE
TERMS OF THE ACQUISITION AGREEMENT PURSUANT TO WHICH SUCH SHARES WERE ISSUED,
AND THE ISSUER SHALL NOT BE REQUIRED TO GIVE EFFECT TO ANY ATTEMPTED SALE,
ASSIGNMENT, EXCHANGE, TRANSFER, PLEDGE OR OTHER DISPOSITION PRIOR TO EXPIRATION
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OF THE RESTRICTED PERIOD REFERRED TO IN THE ACQUISITION AGREEMENT EXCEPT IN
ACCORDANCE WITH THE TERMS OF SUCH AGREEMENT. SUCH RESTRICTIONS ON TRANSFER ARE
SET FORTH IN AN ACQUISITION AGREEMENT, A COPY OF WHICH IS MAINTAINED AT THE
PRINCIPAL OFFICES OF THE ISSUER. UPON THE WRITTEN REQUEST OF THE HOLDER OF THIS
CERTIFICATE, THE ISSUER AGREES TO REMOVE THIS RESTRICTIVE LEGEND (AND ANY STOP
ORDER PLACED WITH THE TRANSFER AGENT) AFTER THE DATE SPECIFIED ABOVE.
15.2 TRANSFER RESTRICTIONS RELATING TO ADDITIONAL CONSIDERATION. No
Stockholder shall (i) sell, assign, exchange, transfer, pledge, or otherwise
dispose of any right to receive any consideration pursuant to Section II of
Annex I to this Agreement (the "Additional Consideration Right") or any
securities convertible into, exchangeable or exercisable for any Additional
Consideration Right, (ii) grant any option to purchase, or otherwise enter into
any contract to sell, assign, transfer, pledge or otherwise dispose of, any
Additional Consideration Right, or (iii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of any Additional
Consideration Right, whether any such swap or transaction is to be settled by
delivery of shares of AmPaM Stock or other securities, by the delivery or
payment of cash or otherwise.
16. FEDERAL SECURITIES ACT REPRESENTATIONS
16.1 COMPLIANCE WITH LAW. Each Stockholder acknowledges that the
shares of AmPaM Stock, the Additional Consideration Right and any AmPaM Notes
to be delivered to such Stockholder pursuant to this Agreement have not been
and will not be registered under the 1933 Act (except as provided in Section 17
hereof) and therefore may not be sold, assigned, exchanged, transferred,
pledged or otherwise disposed of without compliance with the 1933 Act which,
among other matters, would require registration under the 1933 Act unless
exemption from the registration requirements is available for such transaction.
The AmPaM Stock, the Additional Consideration Right and any AmPaM Notes to be
acquired by each Stockholder pursuant to this Agreement is being acquired
solely for such Stockholder's own account, for investment purposes only, and
with no present intention of selling, assigning, exchanging, transferring,
pledging, or otherwise disposing of it. Each Stockholder covenants, warrants
and represents that neither the shares of AmPaM Stock, the Additional
Consideration Right nor any AmPaM Notes issued to such Stockholder will be
offered, sold, assigned, exchanged, pledged, transferred or otherwise disposed
of except after full compliance with all of the applicable provisions of the
1933 Act and the rules and regulations of the SEC. All certificates
representing the AmPaM Stock shall bear the following legend in addition to the
legend required under Section 15 of this Agreement:
THE SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") AND MAY ONLY BE SOLD OR OTHERWISE TRANSFERRED IF THE HOLDER
HEREOF COMPLIES WITH THE ACT AND APPLICABLE FEDERAL AND STATE SECURITIES LAWS.
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16.2 ECONOMIC RISK; SOPHISTICATION. Each Stockholder is able to bear
the economic risk of an investment in the AmPaM Stock and AmPaM Notes to be
acquired pursuant to this Agreement and can afford to sustain a total loss of
such investment. Each Stockholder has substantial knowledge and experience in
making investment decisions of this type (or is relying on qualified purchaser
representatives with such knowledge and experience in making this decision),
and is capable, either individually or with such purchaser representatives, of
evaluating the merits and risks of this investment. Each Stockholder has had an
adequate opportunity to ask questions and receive answers from the officers of
AmPaM concerning any and all matters relating to the transactions described
herein including, without limitation, the background and experience of the
current and proposed officers and directors of AmPaM, the plans for the
operations of the business of AmPaM, the business, operations and financial
condition of the Founding Companies other than the Company, and any plans for
additional acquisitions. Each Stockholder has asked any and all questions of
the nature described in the preceding sentence and all questions have been
answered to such Stockholder's satisfaction. Except as set forth on Schedule
16.2, each Stockholder is an "accredited investor" as defined in Rule 501(a) of
the 1933 Act. Neither the foregoing nor any investigation made by the
Stockholders referred to above shall in any way affect the representations,
warranties, covenants and agreements of AmPaM made herein except to the extent
that AmPaM is relying upon the representations of the Stockholders in Section
16.1 and in this Section 16.2 for purposes of AmPaM's representations and
warranties in Sections 6.9, 6.11, 6.15 and 6.17 hereof as specified therein.
16.3 RELIANCE BY AMPAM. Each Stockholder acknowledges that AmPaM in
relying upon the representations and covenants of such Stockholder set forth in
Section 16.1 and Section 16.2 for purposes of compliance by AmPaM with Federal
and state securities laws related to the issuance of AmPaM Stock pursuant to
this Agreement and the Other Agreements.
17. REGISTRATION RIGHTS
17.1 PIGGYBACK REGISTRATION RIGHTS. Whenever AmPaM proposes to register
any AmPaM Stock for its own or other's account under the 1933 Act for a public
offering, other than (i) any shelf or other registration of shares to be used
as consideration for acquisitions of additional businesses by AmPaM and (ii)
registrations relating to employee benefit plans, AmPaM shall give each of the
Stockholders prompt written notice of its intent to do so. Upon the written
request of any of the Stockholders given within 15 calendar days after receipt
of such notice, notwithstanding the provisions of Section 15 (except as
specified below with respect to an IPO), AmPaM shall cause to be included in
such registration all of the AmPaM Stock issued to such Stockholders pursuant
to this Agreement (including any stock issued as or issuable upon the
conversion or exchange of any convertible security, warrant, right or other
security which is issued by AmPaM as a stock split, dividend or other
distribution with respect to, or in exchange for, or in replacement of such
AmPaM Stock) which any such Stockholder requests, other than shares of AmPaM
Stock which may then be immediately sold under Rule 144(k) (or any similar or
successor provision) promulgated under the 1933 Act, and other than shares of
AmPaM Stock that have been theretofore sold by the Stockholder in accordance
with the 1933 Act, provided that AmPaM shall have the right to reduce pro rata
the
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number of shares of each selling Stockholder included in such registration to
the extent that inclusion of such shares would, in the written opinion of tax
counsel to AmPaM or its independent auditors, jeopardize the status of the
transactions contemplated hereby and by the Private Placement Memorandum as a
tax-free organization under Section 351 of the Code; provided, however, that
with respect to a proposal by AmPaM to register AmPaM Stock under the 1933 Act
in connection with an IPO, no Stockholder shall be permitted pursuant to this
Section 17.1 to have included in such registration more shares of AmPaM Stock
than permitted to be sold by such Stockholder pursuant to Section 15.1. In
addition, if AmPaM is advised in writing in good faith by any managing
underwriter of an underwritten offering of the securities being offered
pursuant to any registration statement under this Section 17.1 that the number
of shares to be sold by persons other than AmPaM is greater than the number of
such shares which can be offered without adversely affecting the success of the
offering, AmPaM may reduce pro rata (among the Stockholders and all other
selling security holders in the offering) the number of shares offered for the
accounts of such persons (based upon the number of shares held by such person)
to a number deemed satisfactory by such managing underwriter. If any
Stockholder disapproves of the terms of the underwriting, that Stockholder may
elect to withdraw therefrom by written notice to AmPaM and the managing
underwriter. That Stockholder's shares of AmPaM Stock so withdrawn shall also
be withdrawn from registration; provided, however, that, if by the withdrawal
of such shares a greater number of shares of AmPaM Stock held by other
Stockholders may be included in such registration, then AmPaM shall offer to
all other Stockholders of AmPaM the right to include additional shares in the
same proportion used in effecting the above limitations. AmPaM shall not, for a
period of two years following the Closing Date, grant to any other person any
rights to cause AmPaM to register any securities in priority over, or in
precedent to, the rights granted to the Stockholders hereunder and to the
stockholders of the Other Founding Companies pursuant to Section 17 of the
Other Agreements.
17.2 REGISTRATION PROCEDURES. Whenever AmPaM is required to register
shares of AmPaM Stock pursuant to Section 17.1, AmPaM will, as expeditiously as
possible:
(i) Prepare and file with the SEC a registration statement
with respect to such shares and use its best efforts to cause such
registration statement to become effective (provided that before
filing a registration statement or prospectus or any amendments or
supplements or term sheets thereto, AmPaM will furnish a
representative of the Stockholders with copies of all such documents
proposed to be filed) as promptly as practical;
(ii) Notify the Stockholders of any stop order issued or
threatened by the SEC and take all reasonable actions required to
prevent the entry of such stop order or to remove it if entered;
(iii) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective for a period of not less than 120 days, cause the
prospectus to be supplemented by any required prospectus supplement,
and as so supplemented to be filed pursuant to Rule 424 under the 1933
Act; and comply with the
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provisions of the 1933 Act applicable to it with respect to the
disposition of all securities covered by such registration statement
during the applicable period in accordance with the intended methods
of disposition by the sellers thereof set forth in such registration
statement or supplement to the prospectus;
(iv) Furnish to each Stockholder who so requests such number
of copies of such registration statement, each amendment and
supplement thereto and the prospectus included in such registration
statement (including each preliminary prospectus and any term sheet
associated therewith), and such other documents as such Stockholder
may reasonably request in order to facilitate the disposition of the
relevant shares;
(v) Make "generally available to its security holders"
(within the meaning of Rule 158) an earnings statement satisfying the
provisions of Section 11(a) of the 1933 Act and Rule 158 thereunder no
later than 90 days after the end of the 12-month period beginning with
the first day of AmPaM's first fiscal quarter commencing after the
effective date of the registration statement;
(vi) Make every reasonable effort to obtain the withdrawal of
any order suspending the effectiveness of the registration statement
at the earliest possible moment;
(vii) If requested by the managing underwriter or
underwriters, if any, or any participating Stockholder, promptly
incorporate in a prospectus supplement or post-effective amendment
such information as the managing underwriter or underwriters or any
participating Stockholder, as the case may be, reasonably requests to
be included therein, including, without limitation, information with
respect to the number of shares of AmPaM Stock being sold by
participating Stockholders to any underwriter or underwriters, the
purchase price being paid therefor by such underwriter or underwriters
and with respect to any other terms of an underwritten offering of the
shares of AmPaM Stock to be sold in such offering, and promptly make
all required filings of such prospectus by supplement or
post-effective amendment;
(viii) Make available for inspection by participating
Stockholders, any underwriter participating in any disposition
pursuant to such registration statement, and the counsel retained by
the participating Stockholders, counsel for the underwriters and any
accountant or other agent retained by participating Stockholders or
any such underwriter (collectively, the "Inspectors"), all financial
and other records, pertinent corporate documents and properties of
AmPaM (the "Records"), as shall be reasonably necessary to enable them
to exercise their due diligence responsibility, and cause AmPaM's
officers, directors and employees to supply all information reasonably
requested by any such Inspectors in connection with such registration
statement; provided, that records which AmPaM determines, in good
faith, to be confidential and which AmPaM notifies the Inspectors are
confidential shall not be disclosed by the Inspectors unless (i) the
disclosure of such Records is necessary to avoid or correct a
misstatement or omission in the registration statement or
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(ii) the release of such Records is ordered pursuant to a subpoena or
other order from a court of competent jurisdiction after delivery of
sufficient notice to AmPaM to enable AmPaM to contest such subpoena or
order;
(ix) Take all other steps reasonably necessary to effect the
registration of the shares of AmPaM Stock contemplated hereby;
(x) Use its best efforts to register or qualify the
securities covered by such registration statement under such other
securities or blue sky laws of such jurisdictions as shall be
reasonably requested by the Stockholders, and to keep such
registration or qualification effective during the period such
registration statement is required to be kept effective, provided that
AmPaM shall not be required to become subject to taxation, to qualify
generally to do business or to file a general consent to service of
process in any such states or jurisdictions;
(xi) Cause all such shares of AmPaM Stock to be listed or
included not later than the date of the first sale of shares of AmPaM
Stock under such registration statement on any securities exchanges or
trading systems on which similar securities issued by AmPaM are then
listed or included; and
(xii) Notify each Stockholder at any time when a prospectus
relating thereto is required to be delivered under the 1933 Act within
the period that AmPaM is required to keep the registration statement
effective of the happening of any event as a result of which the
prospectus included in such registration statement (as then in
effect), together with any associated term sheet, contains an untrue
statement of a material fact or omits to state any fact required to be
stated therein or necessary to make the statements therein (in the
case of the prospectus or any preliminary prospectus, in light of the
circumstances under which they were made) not misleading, and, at the
request of such Stockholder, AmPaM promptly will prepare a supplement
or amendment to such prospectus so that, as thereafter delivered to
the purchasers of the covered shares, such prospectus will not contain
an untrue statement of material fact or omit to state any fact
required to be stated therein or necessary to make the statements
therein (in the case of the prospectus or any preliminary prospectus,
in light of the circumstances under which they were made) not
misleading.
All expenses incurred in connection with the registration under this
Article 17 and compliance with securities and blue sky laws (including all
registration, filing, listing, escrow agent, qualification, legal, printer and
accounting fees, but excluding underwriting commissions and discounts), shall
be borne by AmPaM.
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17.3 INDEMNIFICATION.
(a) In connection with any registration under Section 17.1,
AmPaM shall indemnify, to the extent permitted by law, each selling Stockholder
(an "Indemnified Party") against all losses, claims, damages, liabilities and
expenses arising out of or resulting from any untrue or alleged untrue
statement of material fact contained or incorporated by reference in any
registration statement, prospectus or preliminary prospectus or associated term
sheet or any omission or alleged omission to state or incorporated by reference
therein a material fact required to be stated or incorporated by reference
therein or necessary to make the statements therein not misleading except
insofar as the same are caused by or contained in or omitted from any
information furnished in writing to AmPaM by such Indemnified Party expressly
for use therein or by any Indemnified Parties' failure to deliver a copy of the
registration statement or prospectus or any amendment or supplements thereto
after AmPaM has furnished such Indemnified Party with a sufficient number of
copies of the same.
(b) In connection with any registration under Section 17.1,
each selling Stockholder shall furnish to AmPaM in writing such information
concerning the Stockholder and his or her proposed offering of shares as is
reasonably requested by AmPaM for use in any such registration statement or
prospectus and will indemnify, to the extent permitted by law, AmPaM, its
directors and officers and each person who controls AmPaM (within the meaning
of the 1933 Act) against any losses, claims, damages, liabilities and expenses
resulting from any untrue or alleged untrue statement of a material fact or any
omission or alleged omission to state therein a material fact required to be
stated in the registration statement or prospectus or any amendment thereof or
supplement thereto or necessary to make the statements therein not misleading,
but only to the extent that such untrue or alleged untrue statement or omission
or alleged omission is contained in or omitted from information so furnished in
writing to AmPaM by such Stockholder expressly for use in the registration
statement. Notwithstanding the foregoing, the liability of a Stockholder under
this Section 17.3 shall be limited to an amount equal to the net proceeds
actually received by such Stockholder from the sale of the relevant shares
covered by the registration statement.
(c) Any person entitled to indemnification hereunder will (i)
give prompt notice to the indemnifying party of any claim with respect to which
it seeks indemnification and (ii) unless in such indemnified parties'
reasonable judgment, a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel reasonably
satisfactory to the indemnified party. Any failure to give prompt notice shall
deprive a party of its right to indemnification hereunder only to the extent
that such failure shall have adversely affected the indemnifying party. If the
defense of any claim is assumed, the indemnifying party will not be subject to
any liability for any settlement made without its consent (but such consent
shall not be unreasonably withheld). An indemnifying party that is not entitled
or elects not, to assume the defense of a claim, will not be obligated to pay
the fees and expenses of more than one counsel for all parties indemnified by
such indemnifying party with respect to such claim, unless in the reasonable
judgment of any indemnified party, a
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conflict of interest may exist between such indemnified party and any other of
such indemnified parties with respect to such claim.
17.4 UNDERWRITING AGREEMENT. In connection with each registration
pursuant to Sections 17.1 covering an underwritten registered offering, (i)
each participating Stockholder shall execute and deliver to AmPaM a written
power of attorney instrument that (A) appoints an officer of AmPaM as such
Stockholder's attorney-in-fact for purposes of executing and delivering an
underwriting agreement among AmPaM, the underwriters named therein and such
Stockholder specifying the terms and conditions applicable to the sale of AmPaM
Stock of such Stockholder in such offering and (B) otherwise is in such form
and containing such provisions as are customary in the securities business for
such an arrangement in connection with an underwritten registered offering in
which one or more stockholders of the issuer are participants, including a
provision that authorizes the attorney-in-fact appointed by such Stockholder to
execute and deliver such an underwriting agreement in the event that the net
price per share to be received by such Stockholder from the sale of the shares
of AmPaM Stock to be sold in such offering is not less than a price specified
in such instrument and (iii) AmPaM and each participating Stockholder agree to
enter into a written agreement with the managing underwriters in such form and
containing such provisions as are customary in the securities business for such
an arrangement between such managing underwriters and companies of AmPaM's size
and investment stature, including indemnification; provided, however, that (A)
such Stockholder shall be exempt and excluded from any indemnification of the
managing underwriters other than with respect to information provided by such
Stockholder with respect to such Stockholder to AmPaM or the managing
underwriters specifically for inclusion in any such registration statement and
(B) such Stockholder shall not be obligated to enter into such an underwriting
agreement in the event that the net price per share to be received by such
Stockholder from the sale of shares of AmPaM Stock to be sold in such offering
is less than the floor price specified in the power of attorney instrument
executed and delivered to AmPaM pursuant to clause (i) above.
17.5 TRANSFER OF RIGHTS. The right to cause AmPaM to register shares
of AmPaM Stock under this Agreement may be assigned to a transferee or assignee
of any Stockholder to the extent that such transferee or assignee is a member
of the immediate family of a Stockholder, a trust, limited partnership or other
estate planning entity for the benefit of any such persons or a charitable
organization that qualifies for receipt of charitable contributions under
Section 170(c) of the Code.
17.6 RULE 144 REPORTING. With a view to making available the benefits
of certain rules and regulations of the SEC that may permit the sale of AmPaM
stock to the public without registration, following an IPO AmPaM agrees to use
its reasonable efforts, from and after the completion of an IPO, to:
(i) make and keep public information regarding AmPaM
available as those terms are understood and defined in Rule 144 under
the 1933 Act beginning 90 days following the effective date of a
registration statement relating to an IPO;
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(ii) file with the SEC in a timely manner all reports and
other documents required of AmPaM under the 1933 Act and the 1934 Act
at any time after it has become subject to such reporting
requirements; and
(iii) so long as a Stockholder owns any restricted AmPaM
Stock, furnish to each Stockholder forthwith upon written request a
written statement by AmPaM as to its compliance with the current
public information requirements of Rule 144 (at any time from and
after 90 days following the effective date of a registration statement
relating to an IPO), and of the 1933 Act and the 1934 Act (any time
after it has become subject to such reporting requirements), a copy of
the most recent annual or quarterly report of AmPaM, and such other
reports and documents so filed as a Stockholder may reasonably request
in availing itself of any rule or regulation of the SEC allowing a
Stockholder to sell any such shares without registration.
18. REDEMPTION OF AMPAM STOCK
18.1 REDEMPTION TRIGGER. In the event that, within three years of the
Closing Date, (i) AmPaM has not consummated an IPO and (ii) any Stockholder has
not received cash (including proceeds from the public or private sale of AmPaM
Stock received as consideration hereunder and the receipt of principal
payments, if any, made with respect to AmPaM Notes held by such Stockholder)
equal to or exceeding 50% of the Aggregate Consideration on or prior to the
third anniversary of the Closing Date, such Stockholder shall have the right
(the "Put Right"), but not the obligation, commencing on the third anniversary
date of the Closing Date to require AmPaM to purchase a number of shares of
AmPaM Stock then owned by such Stockholder, subject to the limitations set
forth in Section 18.2 below. The purchase price for such redemption shall be
$13.00 per share, such price to be subject to appropriate adjustment to reflect
any reclassification, stock dividend, subdivision, split-up or combination of
shares of AmPaM Stock after the date hereof.
18.2 MINIMUM REDEMPTION; LIMITATIONS. If the events specified in
Section 18.1(i) and 18.1(ii), with Section 18.1(ii) being determined on an
individual Stockholder basis, have not occurred within the time specified,
AmPaM shall be obligated to purchase from each eligible Stockholder no less
than 10% of the AmPaM Stock held by such Stockholder annually; provided,
however, that the Stockholders shall not be entitled to exercise their Put
Rights if and to the extent the Company has not achieved the Target Net Income
(as defined in Annex I hereto) for the year preceding the year in which a
Stockholder seeks to exercise his Put Right. The redemptions will be funded by
internal cash flows or alternative financing arrangements but AmPaM's
obligation to make any redemption pursuant to this Section 18 will be subject
to the covenants and restrictions contained in AmPaM's then existing private or
public debt or equity instruments.
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18.3 NOTICE; EXERCISE. The Stockholders may exercise their Put Right
by giving written notice (the "Put Notice") to AmPaM within thirty (30) days of
the third anniversary of the execution hereof. If any Stockholder does not
provide AmPaM with a Put Notice within such thirty-day period, the Put Right
applicable to such Stockholder shall expire. The date for closing the sale of
any shares of AmPaM Stock pursuant to a proper exercise of a Put Right shall in
no event be earlier than 90 days after the date AmPaM receives the Put Notice.
Any such closing shall be at such time of day and place as shall be mutually
agreed between such holder and AmPaM. At such closing AmPaM shall make payment
for the AmPaM Stock to be repurchased by wire transfer of immediately available
funds to a bank account designated by such Stockholder for such purpose and
such Stockholder shall deliver to AmPaM certificates, duly endorsed for
transfer, representing the shares of AmPaM Stock to be purchased and sold
pursuant to the exercise of such Put Right.
18.4 ADDITIONAL REDEMPTIONS. In the event AmPaM has not consummated an
IPO and notwithstanding the foregoing, to the extent the Stockholders who have
received greater than 50% of their Aggregate Consideration in cash wish to
tender AmPaM Stock to AmPaM for purchase, AmPaM will use its commercially
reasonable efforts to continue to repurchase up to 10% of the AmPaM Stock held
by such Stockholder annually.
18.5 TERMINATION OF REDEMPTION OBLIGATION. Put Rights with respect to
any individual Stockholder will terminate upon receipt by such Stockholder of
50% of his Aggregate Consideration in cash; such termination will not, however,
limit such Stockholders ability to participate in the additional redemptions
provided in Section 18.4. Notwithstanding the foregoing, all of AmPaM's
redemption obligations contained in this Section 18 shall terminate on the
earlier to occur of (i) an IPO, (ii) any sale of all or substantially all of
AmPaM's assets in one transaction or series of transactions, (iii) any merger
or consolidation which involves AmPaM and in which AmPaM is not the surviving
entity or (iv) any transaction after which the shares of AmPaM Common Stock, if
any, which are then held by persons other than the holders of AmPaM Common
Stock as of the Closing Date constitute 50% or more of AmPaM Common Stock
outstanding as of the date of the consummation of such transaction.
19. GENERAL
19.1 COOPERATION. The Company, Stockholders and AmPaM shall each
deliver or cause to be delivered to the other on the Closing Date, and at such
other times and places as shall be reasonably agreed to, such additional
instruments as the other may reasonably request for the purpose of carrying out
this Agreement. The Company will cooperate and use its reasonable efforts to
have the present officers, directors and employees of the Company cooperate
with AmPaM on and after the Closing Date in furnishing information, evidence,
testimony and other assistance in connection with any tax return filing
obligations, actions, proceedings, arrangements or disputes of any nature with
respect to matters pertaining to all periods prior to the Closing Date.
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19.2 SUCCESSORS AND ASSIGNS. This Agreement and the rights of the
parties hereunder may not be assigned (except by operation of law and except as
provided in Section 17.5) and shall be binding upon and shall inure to the
benefit of the parties hereto, the successors of AmPaM and the Company, and the
heirs, successors and legal representatives of the Stockholders.
19.3 ENTIRE AGREEMENT. This Agreement (including the schedules,
exhibits and annexes attached hereto) and the documents delivered pursuant
hereto constitute the entire agreement and understanding among the
Stockholders, the Company and AmPaM and supersede any prior agreement and
understanding relating to the subject matter of this Agreement. This Agreement,
upon execution, constitutes a valid and binding agreement of the parties hereto
enforceable in accordance with its terms and may be modified or amended only by
a written instrument executed by the Stockholders, the Company and AmPaM,
acting through their respective officers or trustees, duly authorized by their
respective Boards of Directors. Any disclosure made on any Schedule delivered
pursuant hereto shall be deemed to have been disclosed for purposes of any
other Schedule required hereby, provided that the Company shall make a good
faith effort to cross reference disclosure, as necessary or advisable, between
related Schedules.
19.4 COUNTERPARTS. This Agreement may be executed simultaneously in
two (2) or more counterparts, each of which shall be deemed an original and all
of which together shall constitute but one and the same instrument. A
telecopied facsimile of an executed counterpart of this Agreement shall be
sufficient to evidence the binding agreement of each party to the terms hereof.
However, each party agrees to return to the other parties an original, duly
executed counterpart of this Agreement promptly after delivery of a telecopied
facsimile thereof.
19.5 BROKERS AND AGENT. Except as disclosed on Schedule 18.5, each
party hereto represents and warrants that it employed no broker or agent in
connection with this transaction and agrees to indemnify the other parties
hereto against all loss, cost, damages or expense arising out of claims for
fees or commission of brokers employed or alleged to have been employed by such
indemnifying party.
19.6 EXPENSES. Whether or not the transactions herein contemplated
shall be consummated, AmPaM will pay the reasonable fees, expenses and
disbursements of AmPaM and its agents, representatives, accountants and counsel
incurred in connection with the subject matter of this Agreement and any
amendments thereto, including all costs and expenses incurred in the
performance and compliance with all conditions to be performed by AmPaM under
this Agreement, including the fees and expenses of Arthur Andersen LLP, Andrews
& Kurth L.L.P., and any other person or entity retained by AmPaM, and the costs
of preparing the Private Placement Memorandum incurred in connection with the
subject matter of this Agreement and any amendments thereto. In addition,
whether or not the transactions contemplated herein shall be consummated, AmPaM
will pay the reasonable fees and expenses of Bracewell & Patterson LLP incurred
on behalf of the Company and the Stockholders in connection with the subject
matter of this Agreement. Whether or not the transactions herein contemplated
shall be consummated, the Company will pay all of its costs and expenses
incurred on behalf of the Company and the Stockholders in connection with the
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subject matter of this Agreement except that (i) the Company shall not be
required to pay any of the costs, fees and expenses specified above as to which
AmPaM is responsible for the payment thereof and (ii) neither the Company nor
the Stockholders shall be responsible for the payment of the costs, fees and
expenses incurred by or on behalf of AmPaM. Whether or not the transactions
herein contemplated shall be consummated, AmPaM shall reimburse Sterling City
Capital, LLC (or any person or entity which is an Affiliate thereof) for any of
the foregoing fees, expenses and disbursements paid by Sterling City Capital,
LLC (or any person or entity which is an Affiliate thereof) and shall repay
Sterling City Capital, LLC (or any person or entity which is an Affiliate
thereof) for any loans or advances made by Sterling City Capital, LLC (or any
person or entity which is an Affiliate thereof) for the purpose of providing
AmPaM funds to pay any such fees, expenses and disbursements, provided that
such reimbursement and loan repayment obligation shall be limited to the
foregoing fees, expenses, and disbursements which are out-of-pocket expenses of
AmPaM, Sterling City Capital, LLC or any person or entity which is an Affiliate
thereof. Sterling City Capital, LLC shall be reimbursed by AmPaM in the form of
AmPaM Notes. AmPaM retains the right, within a reasonable period following the
Closing Date, to conduct an audit of the expenses for which Sterling City
Capital, LLC is reimbursed. Each Stockholder shall pay all sales, use,
transfer, real property transfer, recording, gains, stock transfer and other
similar taxes and fees ("Transfer Taxes") imposed in connection with the
purchase and sale of the Company Stock, other than Transfer Taxes, if any,
imposed by the State of Delaware. Each Stockholder shall file all necessary
documentation and Returns with respect to such Transfer Taxes. In addition,
each Stockholder acknowledges that he, and not the Company or AmPaM, will pay
all Taxes due by him upon receipt of the consideration payable pursuant to
Section 1 hereof. The Stockholders acknowledge that the risks of the
transactions contemplated hereby include Tax risks, with respect to which the
Stockholders are relying substantially on the opinion contemplated by Section
8.12 hereof and representations by AmPaM in this Agreement.
19.7 NOTICES. All notices of communication required or permitted
hereunder shall be in writing and may be given by depositing the same in United
States mail, addressed to the party to be notified, postage prepaid and
registered or certified with return receipt requested, or by delivering the
same in person or via a nationally recognized courier service to an officer or
agent of such party.
(a) If to AmPaM addressed to it at:
American Plumbing & Mechanical, Inc.
515 Post Oak Blvd., Suite 450
Houston, Texas 77027
Attention: Chief Executive Officer
with copies to:
Thomas P. Mason
Andrews & Kurth L.L.P.
4200 Chase Tower
Houston, Texas 77002
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(b) If to the Stockholders, addressed to them at their addresses set
forth on the signature pages hereto.
(c) If to the Company, addressed to it at:
Robert C. Richey
R.C.R. Plumbing, Inc.
12620 Magnolia Ave.
Riverside, California 92503
or to such other address or counsel as any party hereto shall specify pursuant
to this Section 18.7 from time to time.
19.8 GOVERNING LAW. This Agreement shall be construed in accordance
with the laws of the State of Texas, excluding any conflicts of law, rule or
principle that might refer same to the laws of another jurisdiction.
19.9 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations,
warranties, covenants and agreements of the parties made herein and at the time
of the Closing or in writing delivered pursuant to the provisions of this
Agreement shall survive the consummation of the transactions contemplated
hereby and any examination on behalf of the parties until the respective
Expiration Dates referred to herein with respect thereto or, if no Expiration
Date is applicable with respect thereto, until the expiration of all applicable
statute of limitations periods.
19.10 EXERCISE OF RIGHTS AND REMEDIES. Except as otherwise provided
herein, no delay of or omission in the exercise of any right, power or remedy
accruing to any party as a result of any breach or default by any other party
under this Agreement shall impair any such right, power or remedy, nor shall it
be construed as a waiver of or acquiescence in any such breach or default, or
of any similar breach or default occurring later; nor shall any waiver of any
single breach or default be deemed a waiver of any other breach or default
occurring before or after that waiver.
19.11 TIME. Time is of the essence with respect to this Agreement.
19.12 REFORMATION AND SEVERABILITY. In case any provision of this
Agreement shall be invalid, illegal or unenforceable, it shall, to the extent
possible, be modified in such manner as to be valid, legal and enforceable but
so as to most nearly retain the intent of the parties, and if such modification
is not possible, such provision shall be severed from this Agreement, and in
either case the validity, legality and enforceability of the remaining
provisions of this Agreement shall not in any way be affected or impaired
thereby. No provision of this Agreement shall be interpreted or construed
against any party solely because that party or its legal representative drafted
such provision.
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19.13 REMEDIES CUMULATIVE. No right, remedy or election given by any
term of this Agreement shall be deemed exclusive but each shall be cumulative
with all other rights, remedies and elections available at law or in equity.
19.14 CAPTIONS. The headings of this Agreement are inserted for
convenience only, shall not constitute a part of this Agreement or be used to
construe or interpret any provision hereof.
19.15 AMENDMENTS AND WAIVERS. Any term of this Agreement may be
amended and the observance of any term of this Agreement may be waived only
with the written consent of AmPaM, the Company and Stockholders who would
receive a majority of the Aggregate Consideration specified in Section I of
Annex I to this Agreement if the transactions contemplated hereby were
consummated. Any amendment or waiver effected in accordance with this Section
19.15 shall be binding upon each of the parties hereto, any other person
receiving AmPaM Stock in connection with the purchase and sale of the Company
Stock and each future holder of such AmPaM Stock. Any consent of the
Stockholders who would receive a majority of the Aggregate Consideration
pursuant to Section I of Annex I of this Agreement if the transactions
contemplated hereby were consummated shall be deemed to be the consent of the
Stockholders for purposes of provisions of this Agreement as to which a consent
of the Stockholders may be requested or required.
19.16 MEDIATION AND ARBITRATION. If a dispute arises out of or relates
to this Agreement, or the breach thereof, and if said dispute cannot be settled
through direct discussions, the parties agree to first endeavor to settle the
dispute in an amicable manner by mediation administered by the American
Arbitration Association under its then prevailing Commercial Mediation Rules,
before resorting to arbitration. Thereafter, any unresolved controversy or
claim arising out of or relating to this Agreement, or the breach thereof,
shall be settled by arbitration administered by the American Arbitration
Association in accordance with its then prevailing Commercial Arbitration
Rules. The enforcement, interpretation and procedural and substantive effect of
the obligation to arbitrate created by this Section 19.16 shall be governed by
the Federal Arbitration Act as amended from time to time, 9 U.S.C. Section 1 et
seq. The parties hereby disclaim any intention to have the substantive or
procedural law of any state or other jurisdiction, other than the law of the
United States as embodied in the Federal Arbitration Act, applied to such
obligation. Any such mediation or arbitration proceeding will be conducted in
Houston, Texas.
19.17 INFORMATION PROVIDED FOR PRIVATE PLACEMENT MEMORANDUM. For
purposes of this Agreement, the information provided by the Company in writing
specifically for inclusion in the Private Placement Memorandum shall include
solely (i) the Financial Statements (in the form that they appear in the
Private Placement Memorandum), (ii) any financial statements provided to AmPaM
pursuant to Section 7.9, (iii) the description of the Company contained in the
Private Placement Memorandum under the caption "The Company", (iv) the
description of the Company's results of operations and its liquidity and
capital resources, if any, contained in the Private Placement Memorandum under
the caption "Management's Discussion and Analysis of Financial Condition and
Results of Operations" and (v) the description, if any, of matters related to
the Company contained in the Private Placement Memorandum under the caption
"Certain Transactions Transactions involving Certain Officers, Directors and
Stockholders". For purposes of this
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Agreement, the information provided by a Stockholder in writing specifically
for inclusion in the Private Placement Memorandum shall include only (i) the
description, if any, of matters related to such Stockholder contained in the
Private Placement Memorandum under the caption "Certain Transactions -
Transactions involving Certain Officers, Directors and Stockholders" and (ii)
the biographical description of such Stockholder, if any, contained in the
Private Placement Memorandum under the caption "Management."
19.18 EFFECTIVE DATE OF AGREEMENT. This Agreement shall become
effective upon (i) the execution and delivery of this Agreement by all of the
parties hereto and (ii) the delivery to AmPaM of each Employment Agreement
attached hereto.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
AMERICAN PLUMBING & MECHANICAL, INC.
By: /s/ DAVID BAGGETT
-------------------------------------
Name: David Baggett
-----------------------------------
Title: Chief Financial Officer
----------------------------------
R.C.R. PLUMBING, INC.
By: /s/ ROBERT C. RICHEY
-------------------------------------
Robert C. Richey
Chief Executive Officer
By: /s/ MICHAEL A. MAHONY
-------------------------------------
Michael A. Mahony
Chief Financial Officer
[Remainder of page intentionally left blank]
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STOCKHOLDERS: SPOUSES (WITHOUT PERSONAL LIABILITY AND
SOLELY TO ACKNOWLEDGE THE SALE OF THE
COMPANY STOCK BY THE STOCKHOLDER):
ROBERT C. RICHEY FAMILY TRUST, 1/20/97
By: /s/ ROBERT C. RICHEY
------------------------------------
Robert C. Richey, Trustee
1215 Seacrest Drive
Corona Del Mar, California 92625
BAKER FAMILY TRUST, 6/3/97
By: /s/ THOMAS L. BAKER
------------------------------------
Thomas L. Baker, Trustee
6863 Canyon Hill Drive
Riverside, California 92506
By: /s/ LINDA S. BAKER
------------------------------------
Linda S. Baker, Trustee
6863 Canyon Hill Drive
Riverside, California 92506
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