EXHIBIT 2.2
THE MERGER AGREEMENT
PLAN AND AGREEMENT OF MERGER
BY AND AMONG
SERVICEMASTER LIMITED PARTNERSHIP
(A DELAWARE LIMITED PARTNERSHIP)
SERVICEMASTER ACQUISITION CORPORATION
(A DELAWARE CORPORATION)
AND
BAREFOOT INC.
(A DELAWARE CORPORATION)
DECEMBER 5, 1996
PLAN AND AGREEMENT OF MERGER
This PLAN AND AGREEMENT OF MERGER, dated as of December 5, 1996, is entered
into by and among ServiceMaster Limited Partnership ("ServiceMaster"), a
Delaware limited Partnership, ServiceMaster Acquisition Corporation (the
"Merger Sub"), a Delaware corporation and wholly-owned indirect subsidiary of
ServiceMaster and Barefoot Inc. ("Barefoot"), a Delaware corporation.
RECITALS
Simultaneous with the execution of this Agreement, the parties hereto have
entered into an Acquisition Agreement which provides subject to the terms and
conditions specified therein that ServiceMaster will make a tender offer (the
"Offer") for all of the issued and outstanding shares of Barefoot in which
ServiceMaster will pay the Offer Consideration (as defined in Acquisition
Agreement) for each Share tendered. The term "Share" as used in this Agreement
means a share of Barefoot's common stock as constituted prior to the
consummation of the Merger provided for by this Agreement.
The respective boards of directors of ServiceMaster, MergerSub and Barefoot
have determined that it is advisable for MergerSub to be merged with and into
Barefoot (the "Merger") on the terms prescribed in this Agreement. The Merger
is intended to (i) convert all Shares not tendered in the Offer into an amount
of cash (herein called the "Merger Price") exactly equal to the Cash
Consideration paid under the Acquisition Agreement for the Shares acquired by
means of the Offer and (ii) convert Barefoot into a wholly-owned subsidiary of
ServiceMaster. The parties have entered into this Agreement to prescribe terms
for the Merger. Each term which is defined in the Acquisition Agreement and is
not given a different meaning in this Agreement has the same meaning in this
Agreement as the term is given in the Acquisition Agreement.
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.3), in
accordance with this Agreement and the Delaware General Corporation Law, as
amended (the "Delaware Law"), MergerSub shall be merged with and into Barefoot,
the separate existence of MergerSub (except as may be continued by operation of
law) shall cease, and Barefoot shall continue as the surviving corporation.
Barefoot, in its capacity as the surviving corporation in the Merger, is
hereinafter sometimes referred to as the "Surviving Corporation." Barefoot and
MergerSub are sometimes referred to collectively as the "Constituent
Corporations", or individually as a "Constituent Corporation."
1.2 Effect of the Merger. The Surviving Corporation shall at and after the
Effective Time possess all the rights, privileges, immunities, and franchises,
as well of a public and of a private nature, of the Constituent Corporations
and all property, real, personal and mixed, and all debts due on whatever
account, and all other causes of action, and all and every other interest, or
belonging to or due to each of the Constituent Corporations, shall be taken and
deemed to be transferred to and vested in the Surviving Corporation without
further act or deed, and the title to any real estate, or any interest thereto,
vested in any of the Constituent Corporations, shall not revert or be in any
way impaired by reason of the Merger; and the Surviving Corporation shall
henceforth be responsible and liable for all the obligations and liabilities of
each of the Constituent Corporations, and any claim existing or action or
proceeding pending by or against any of the Constituent Corporations may be
prosecuted to judgment as if the Merger had not taken place, or the Surviving
Corporation may be substituted in its place, all with the effect set forth in
Sections 259, 260 and 261 of the Delaware Law.
1
The authority of the officers of MergerSub shall continue with respect to the
due execution thereof or conveyance and other documents where the execution
thereof is required or convenient to comply with any provision of the Delaware
Law, of any contract to which MergerSub was a party or the plan of merger
contained herein.
1.3 Effective Time. As soon as is reasonably practicable after the
stockholders of Barefoot have approved the Merger or ServiceMaster shall have
acquired at least 90% of then outstanding Shares (whichever shall first occur),
the parties hereto shall cause the Merger to be consummated by filing with the
Secretary of State of Delaware in accordance with Section 251 or Section 253 of
the Delaware Law three duplicate original certificates of merger with respect
to the Merger (the "Certificates of Merger"), in the form and executed and
acknowledged as required by Section 103 of the Delaware Law. The Merger shall
become effective at the time of such filing or at such other subsequent time
specified in the Certificate of Merger. The time and date on which the Merger
shall become effective is referred to as the "Effective Time."
1.4 Certificate of Incorporation and Bylaws.
(a) The Certificate of Incorporation of MergerSub, as in effect immediately
prior to the Effective Time, shall be the Certificate of Incorporation of the
Surviving Corporation as amended by the Certificate of Merger, and thereafter
shall continue to be its Certificate of Incorporation until amended as provided
therein and under the Delaware Law, except that the name of the Surviving
Corporation shall be "Barefoot Inc."
(b) The Bylaws of MergerSub, as in effect immediately prior to the Effective
Time, shall be the Bylaws of the Surviving Corporation and thereafter shall
continue to be its Bylaws until amended as provided therein and under the
Delaware Law.
1.5 Directors and Officers. Unless otherwise determined by ServiceMaster
prior to the Effective Time, the officers of Barefoot holding office
immediately prior to the Effective Time shall be the officers (holding the same
positions as they held with Barefoot) of the Surviving Corporation immediately
after the Effective Time, to hold office until their successors have been
elected and shall qualify or as otherwise provided by the Bylaws of the
Surviving Corporation. Unless otherwise determined by ServiceMaster prior to
the Effective Time, the directors of MergerSub holding office immediately prior
to the Effective Time shall be the directors of the Surviving Corporation
immediately after the Effective Time, to hold office until their successors
have been elected and shall qualify or as otherwise provided by the Bylaws of
the Surviving Corporation.
ARTICLE II
CONVERSION OF SHARES
2.1 Conversion of MergerSub Common Stock. Each of the shares of common stock
of MergerSub ("MergerSub Common Stock") issued and outstanding immediately
prior to the Effective Time shall, by virtue of the Merger and without any
action on the part of the holder thereof, be converted into and represent the
right to receive one fully paid and non-assessable share of common stock of the
Surviving Corporation ("Surviving Corporation Common Stock"). From and after
the Effective Time, each outstanding certificate theretofore representing
shares of MergerSub Common Stock shall be deemed for all purposes to evidence
ownership of and to represent the number of shares of Surviving Corporation
Common Stock into which such shares of MergerSub Common Stock shall have been
converted. Promptly after the Effective Time, the Surviving Corporation shall
issue a stock certificate or certificates representing shares of Surviving
Corporation Common Stock in exchange for the certificate or certificates which
formerly represented the shares of MergerSub Common Stock, which shall be
canceled.
2
2.2 Conversion of Barefoot Securities. Each Share issued and outstanding
immediately prior to the Effective Time shall, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive an amount, in cash, without interest, equal to the Merger
Price except that each of the following Shares shall not be so converted: (i)
every Barefoot Share held by ServiceMaster shall be canceled and shall cease to
be outstanding; (ii) Dissenting Shares (as defined in Section 2.4) in respect
of which appraisal rights are perfected (which shall be treated as prescribed
in Section 2.4); and (iii) every Share held in the treasury of Barefoot or by
any direct or indirect subsidiary of Barefoot (which shall be canceled and
retired at the Effective Time).
2.3 Surrender of Certificates.
(a) As soon as practicable after the Effective Time, a person appointed by
ServiceMaster to act as exchange agent to effect the exchange of certificates
(the "Exchange Agent") shall mail to each holder of record of a certificate or
certificates (the "Certificates") that immediately prior to the Effective Time
represented outstanding Shares (other than Shares excluded from conversion
under clauses (i) - (iii) in Section 2.2) a form letter of transmittal for
return to the Exchange Agent (which form shall specify that delivery of
Certificates shall be effected, and risk of loss and title to the Certificates
shall pass, only upon delivery of the Certificates to the Exchange Agent) and
instructions for use in effecting the surrender of the certificates in exchange
for the Merger Price. From time to time at or following the Effective time,
ServiceMaster shall deposit with the Exchange Agent in trust for the benefit of
the holders immediately available funds in an amount necessary to make the
payments contemplated by Section 2.2 hereof on a timely basis (such amount
being hereinafter referred to as the "Payment Fund"). Upon surrender of a
Certificate for cancellation to the Exchange Agent or to such other agent or
agents as may be appointed by ServiceMaster and Barefoot, together with such
letter of transmittal and such documentation as shall be necessary effectively
to transmit the Certificate for cancellation, duly executed, the holder of such
Certificates shall be entitled to receive in exchange therefor the Merger
Price, and the Certificate so surrendered shall forthwith be canceled. The
Exchange Agent shall, pursuant to irrevocable instructions, make the payments
referred to in the preceding sentence out of the Payment Fund. The Payment Fund
shall not be used for any other purpose except as described herein. Until
surrendered and exchanged, each such certificate shall represent solely the
right to receive the Merger Price for each Share previously represented by that
certificate, and ServiceMaster shall not be required to pay the holder thereof
any property, stock or cash to which such holder otherwise would be entitled as
a holder of Barefoot Common Stock, provided that customary and appropriate
procedures allowing for the surrender and exchange of former Shares represented
by lost or destroyed certificates shall be provided.
(b) Any cash in respect of the Merger Price delivered or made available to
the Exchange Agent pursuant to this Section 2.3 and not exchanged for
Certificates within one year after the Effective Time pursuant to this Section
2.3 shall be returned by the Exchange Agent to ServiceMaster, after which time
persons entitled thereto may look only to ServiceMaster for payment thereof,
subject to the rights of holders of unsurrendered Certificates under this
Article II and subject to any applicable abandoned property, escheat or similar
law.
(c) If the Merger Price is to be issued to a person whose name is other than
that in which the Certificate surrendered in exchange therefor is registered,
it shall be a condition of the issuance thereof that the Certificate so
surrendered shall be properly endorsed and otherwise in proper form for
transfer, and that the person requesting such exchange shall pay to the
Exchange Agent any transfer or other taxes required by reason of the payment of
the Merger Price to a person whose name is other than that of the registered
holder of the Certificate so surrendered, or required for any other reason, or
shall establish to the satisfaction of the Exchange Agent that such tax has
been paid or is not payable. Notwithstanding the foregoing, neither the
Exchange Agent nor any party hereto shall be liable to a holder of any
Certificate for any amount paid to or deposited with a public official pursuant
to any applicable abandoned property, escheat or similar law.
3
(d) After the Effective Time, there shall be no transfers on the stock
transfer books for the Surviving Corporation of the Shares that were
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates representing such shares are presented for transfer to the
Exchange Agent or to the Surviving Corporation, they shall be canceled and
exchanged for the Merger Price.
2.4 Dissenting Shares. Notwithstanding anything in this Agreement to the
contrary, but only in the circumstances and to the extent provided by the
Delaware Law, Shares that are issued and outstanding immediately prior to the
Effective Time and that are held by stockholders who have not voted such Shares
in favor of the approval and adoption of the Merger Agreement and shall have
delivered a written demand for appraisal of such Shares in the manner
(including the time of delivery) provided in Section 262 of the Delaware Law
(the "Dissenting Shares") shall not be converted into or be exchangeable for
the right to receive the Merger Price, but shall be entitled to receive such
consideration as shall be determined pursuant to Section 262 of the Delaware
Law; provided, however, that, if such holder shall have failed to perfect or
shall have effectively withdrawn or lost such holder's right to appraisal and
payment under the Delaware Law, such holder's Shares shall thereupon be deemed
to have been converted into and to have become exchangeable for, as of the
Effective Time, the right to receive the Merger Price, without any interest
thereon, in accordance with Section 2.2, and such Shares shall no longer be
Dissenting Shares.
ARTICLE III
AMENDMENT AND TERMINATION
3.1 Amendment. This Agreement may not be amended except by an instrument in
writing signed on behalf of each of the parties hereto. The respective boards
of directors of each of the parties hereto shall have the right to amend this
Agreement without approval of their respective stockholders to the extent
permitted by (S)251(d) of the Delaware Law.
3.2 Termination. At any time prior to the Effective Time, whether before or
after approval by the stockholders of the Constituent Corporations, this
Agreement may (subject to the provisions in Section 6.1 of the Acquisition
Agreement) be terminated and the Merger abandoned by mutual agreement of the
boards of directors of Barefoot and ServiceMaster. This Agreement shall be
automatically terminated if the Acquisition Agreement is validly terminated
pursuant to the provisions of Section 6.1 thereof. The filing of the
Certificate of Merger with the Secretary of State of Delaware pursuant to
Section 1.3 hereof shall constitute certification that this Agreement has not
theretofore been terminated. If terminated as provided in this Section 3.2,
this Agreement shall forthwith become wholly void and of no further force and
effect.
ARTICLE IV
MISCELLANEOUS
4.1 Counterparts. This Agreement may be executed in one or more counterparts,
each of which together shall constitute one agreement.
4.2 Governing Law. This Agreement shall be governed in all respects,
including validity, interpretation and effect, by the laws of the State of
Delaware.
* * * *
4
IN WITNESS WHEREOF, ServiceMaster, MergerSub and Barefoot have caused this
Agreement to be executed on the date first written above by their duly
authorized officers.
SERVICEMASTER LIMITED PARTNERSHIP
By ServiceMaster Management Corporation
Managing General Partner
/s/ Carlos H. Cantu
By: ____________________________________
Carlos H. Cantu
Name: __________________________________
President and Chief Executive
Officer
Title: _________________________________
SERVICEMASTER ACQUISITION CORPORATION
/s/ Carlos H. Cantu
By: ______________________________________
Carlos H. Cantu
Name: ____________________________________
President
Title: ___________________________________
BAREFOOT INC.
/s/ Patrick J. Norton
By: ______________________________________
Patrick J. Norton
Name: ____________________________________
Chief Executive Officer
Title: ___________________________________
5