<PAGE>
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(AMENDMENT NO. 16)
Under the Securities Exchange Act of 1934*
ERC Industries, Inc.
- --------------------------------------------------------------------------------
(Name of Issuer)
Common Stock, par value $0.01 per share
- --------------------------------------------------------------------------------
(Title of Class of Securities)
268912102
- --------------------------------------------------------------------------------
(CUSIP Number)
J. David Kirkland, Jr.
Baker Botts L.L.P.
3000 One Shell Plaza
910 Louisiana
Houston, Texas 77002
(713) 229-1101
- --------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
March 29, 2000
- --------------------------------------------------------------------------------
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(e), (f) or (g), check the following box [_].
Note: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Rule 13d-7(b) for other
parties to whom copies are to be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
<PAGE>
CUSIP No. 268912102
- --------------------------------------------------------------------------------
(1) Name of Reporting Person
I.R.S. Identification Nos. of Above Person
John Wood Group PLC, a company registered in Scotland and
incorporated under the laws of the United Kingdom
- --------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
- --------------------------------------------------------------------------------
(3) SEC Use Only
- --------------------------------------------------------------------------------
(4) Source of Funds
WC
- --------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e)
[ ]
- --------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
United Kingdom
- --------------------------------------------------------------------------------
Number of (7) Sole Voting Power 27,537,702
Shares Bene- _______________________________________________________
ficially (8) Shared Voting Power 0
Owned by _______________________________________________________
Each Report- (9) Sole Dispositive Power 27,537,702
ing Person _______________________________________________________
With (10) Shared Dispositive Power 0
________________________________________________________________________________
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
27,537,702
________________________________________________________________________________
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares
[ ]
- --------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
89.7%
- --------------------------------------------------------------------------------
(14) Type of Reporting Person (See Instructions) CO
-2-
<PAGE>
The Schedule 13D dated October 19, 1992, as amended and supplemented
by the amendments thereto previously filed with the Securities and Exchange
Commission (collectively, the "Schedule 13D"), of John Wood Group PLC (the
"Reporting Person"), relating to the common stock, $0.01 par value per share
(the "Common Stock"), and a series of preferred stock, $1.00 par value per
share, of ERC Industries, Inc., a Delaware corporation (formerly known as ERC
Subsidiary, Inc., successor by merger to ERC Industries, Inc. (the "Company")),
is hereby amended and supplemented as set forth below. Defined terms used in
this Amendment No. 16 and not defined herein shall have their respective
meanings as set forth in the Schedule 13D.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
Item 3 of the Schedule 13D is hereby amended and supplemented by
adding the following information thereto:
On March 29, 2000, the Company, the Reporting Person and ERC
Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of the
Reporting Person ("Merger Sub"), entered into an Agreement and Plan of Merger
(the "Merger Agreement") providing for the merger (the "Merger") of Merger Sub
with and into the Company. In the Merger, each share of Common Stock of the
Company outstanding immediately prior to the effective time the Merger (other
than shares held by the Reporting Person, Merger Sub or any subsidiary of the
Reporting Person or the Company, or held in the Company's treasury, which will
be canceled, or shares held by stockholders who have exercised their statutory
right under the laws of the state of Delaware to have such shares appraised and
be paid the fair value thereof ("Dissenting Shares")) will be converted into the
right to receive $1.60 in cash, without any interest thereon (such cash paid for
the shares of Common Stock is hereinafter referred to as the "Merger
Consideration"), and each outstanding share of common stock of Merger Sub will
be converted into one share of the common stock of the Company, as the surviving
corporation in the Merger (the "Surviving Corporation").
The Reporting Person has calculated that, assuming there are no
Dissenting Shares, approximately $5.1 million will be required to pay the
aggregate Merger Consideration due to stockholders of the Company at the closing
of the Merger. The Reporting Person expects that the funds to be used to pay
the aggregate Merger Consideration will come from the Reporting Person's working
capital.
ITEM 4. PURPOSE OF TRANSACTION
Item 4 of the Schedule 13D is hereby amended and supplemented by
adding the following information thereto:
The Reporting Person intends to consummate the Merger and acquire all
the outstanding shares of Common Stock not owned by the Reporting Person at the
earliest practicable date. The Merger Agreement specifies certain conditions
that must be satisfied prior to the closing of the Merger, including, among
other things, (a) the approval and adoption of the Merger Agreement and the
Merger by the affirmative vote of the holders of a majority of the outstanding
shares of Common Stock not owned by the Reporting Person that are voting for or
against the matter
-3-
<PAGE>
at the meeting of stockholders called for such purpose, and (b) the absence of
any court order, decree or injunction that prohibits the consummation of the
Merger.
As a result of the Merger, (a) all the outstanding shares of Common
Stock (other than Dissenting Shares and shares held by the Reporting Person,
Merger Sub or any subsidiary of the Reporting Person or the Company, or held in
the Company's treasury, which will be canceled) will be converted into the right
to receive the Merger Consideration, and the shares of Merger Sub will become
the shares of the Surviving Corporation, (b) the Reporting Person will own 100%
of the outstanding shares of the Surviving Corporation, (c) the Common Stock of
the Company will cease to be authorized to be quoted on the OTC Bulletin Board
or on any other interdealer quotation system of a registered national securities
association, (d) the Common Stock will be removed from registration under the
1934 Act, (e) the directors of Merger Sub will become the directors of the
Surviving Corporation and (f) the officers of the Company will become the
officers of the Surviving Corporation.
The foregoing description of the Merger Agreement and the transactions
contemplated thereby is only a summary thereof, does not purport to be complete
and is qualified in its entirety by the specific terms of the Merger Agreement,
which is filed as an exhibit hereto and incorporated herein by reference.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
Item 7 of the Schedule 13D is hereby amended and supplemented by
adding the following information thereto:
Q Agreement and Plan of Merger, dated as of March 29, 2000, among
John Wood Group PLC, ERC Acquisition, Inc. and ERC Industries, Inc.
-4-
<PAGE>
SIGNATURE
After reasonable inquiry and to the best of its knowledge and belief,
the undersigned certifies that the information set forth in this Amendment No.
16 to Schedule 13D is true, complete and correct.
Date: March 30, 2000
JOHN WOOD GROUP PLC
By: /s/ WENDELL BROOKS
------------------------
Wendell Brooks
Director
-5-
<PAGE>
EXHIBIT INDEX
99.Q Agreement and Plan of Merger, dated as of March 29, 2000, among John
Wood Group PLC, ERC Acquisition, Inc. and ERC Industries, Inc.
-6-
<PAGE>
- --------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
among
JOHN WOOD GROUP PLC,
ERC ACQUISITION, INC.
and
ERC INDUSTRIES, INC.
Dated as of March 29, 2000
- --------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
ARTICLE 1
THE MERGER
Section 1.1 The Merger.......................................... 1
Section 1.2 The Closing......................................... 1
Section 1.3 Effective Time...................................... 2
ARTICLE 2
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation....................... 2
Section 2.2 Bylaws............................................. 2
ARTICLE 3
DIRECTORS AND OFFICERS OF THE
SURVIVING CORPORATION
Section 3.1 Directors of Surviving Corporation................. 2
Section 3.2 Officers of Surviving Corporation.................. 2
ARTICLE 4
EFFECT OF THE MERGERS ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS
Section 4.1 Effect of Merger on Capital Stock.................. 3
Section 4.2 Exchange of Certificates Representing Company
Common Stock..................................... 3
Section 4.3 Dissenting Shares.................................. 5
Section 4.4 Adjustment of Consideration........................ 5
Section 4.5 Treatment of Units................................. 6
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 5.1 Existence; Good Standing; Corporate Authority...... 6
Section 5.2 Authorization, Validity and Effect of Agreements... 6
Section 5.3 Capitalization..................................... 6
Section 5.4 No Conflict........................................ 7
Section 5.5 SEC Documents...................................... 7
Section 5.6 No Brokers......................................... 8
i
<PAGE>
Section 5.7 Vote Required...................................... 8
Section 5.8 Opinion of Financial Advisor....................... 8
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
Section 6.1 Existence; Good Standing; Corporate Authority...... 9
Section 6.2 Authorization, Validity and Effect of Agreements... 9
Section 6.3 No Brokers......................................... 9
Section 6.4 No Conflict........................................ 9
Section 6.5 Merger Sub......................................... 10
Section 6.6 Financing.......................................... 10
ARTICLE 7
COVENANTS
Section 7.1 Conduct of Businesses.............................. 10
Section 7.2 Meetings of Stockholders........................... 11
Section 7.3 Proxy Statement.................................... 12
Section 7.4 Expenses........................................... 12
Section 7.5 Consents........................................... 12
Section 7.6 Publicity.......................................... 13
Section 7.7 Indemnification; Insurance......................... 13
ARTICLE 8
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to
Effect the Merger................................ 14
Section 8.2 Conditions to Obligation of the Company to
Effect the Merger................................ 14
Section 8.3 Conditions to Obligation of Parent and Merger Sub
to Effect the Merger............................. 15
ARTICLE 9
TERMINATION
Section 9.1 Termination by Mutual Consent...................... 15
Section 9.2 Termination by Parent or the Company............... 15
Section 9.3 Termination by the Company......................... 16
Section 9.4 Termination by Parent.............................. 16
Section 9.5 Effect of Termination.............................. 16
Section 9.6 Extension; Waiver.................................. 17
ii
<PAGE>
ARTICLE 10
GENERAL PROVISIONS
Section 10.1 Nonsurvival of Representations, Warranties
and Agreements................................... 17
Section 10.2 Notices............................................ 17
Section 10.3 Assignment; Binding Effect; Benefit................ 18
Section 10.4 Entire Agreement................................... 18
Section 10.5 Amendments......................................... 18
Section 10.6 Governing Law...................................... 19
Section 10.7 Counterparts....................................... 19
Section 10.8 Headings........................................... 19
Section 10.9 Interpretation..................................... 19
Section 10.10 Waivers............................................ 20
Section 10.11 Severability....................................... 20
Section 10.12 Obligation of Parent............................... 20
Section 10.13 Subsidiaries....................................... 20
Section 10.14 Action by the Company.............................. 20
iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
THIS AGREEMENT AND PLAN OF MERGER (this "Agreement") dated as of March
29, 2000 is among John Wood Group PLC, a company incorporated in the United
Kingdom and registered in Scotland ("Parent"), ERC Acquisition, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Merger Sub"), and ERC
Industries, Inc., a Delaware corporation (the "Company").
RECITALS
WHEREAS, as of the date hereof, Parent owns 89.7% of the outstanding
shares of common stock, par value $0.01 per share, of the Company ("Company
Common Stock");
WHEREAS, the parties hereto desire to merge Merger Sub with and into
the Company (the "Merger"), with the Company surviving as a wholly owned
subsidiary of Parent, pursuant to which each share of the Company Common Stock
not owned by Parent will be converted into the right to receive $1.60 in cash;
WHEREAS, the respective Boards of Directors of Merger Sub and the
Company have determined the Merger, in the manner contemplated herein, to be
advisable and in the best interests of their respective corporations and
stockholders and to be consistent with, and in furtherance of, their respective
business strategies and goals, and, by resolutions duly adopted, have approved
and adopted this Agreement;
NOW, THEREFORE, in consideration of the foregoing, and of the
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
ARTICLE 1
THE MERGER
Section 1.1 The Merger. Subject to the terms and conditions of this
Agreement, at the Effective Time (as defined in Section 1.3), Merger Sub shall
be merged with and into the Company in accordance with this Agreement, and the
separate corporate existence of Merger Sub shall thereupon cease. The Company
shall be the surviving corporation in the Merger (sometimes hereinafter referred
to as the "Surviving Corporation"). The Merger shall have the effects specified
in the General Corporation Law of the State of Delaware (the "DGCL").
Section 1.2 The Closing. Subject to the terms and conditions of this
Agreement, the closing of the Merger (the "Closing") shall take place (a) at the
offices of Baker Botts L.L.P., One Shell Plaza, 910 Louisiana, Houston, Texas,
at 9:00 a.m., local time, on the first business day on which the last to be
fulfilled or waived of the conditions set forth in Article 8 shall be fulfilled
1
<PAGE>
or waived in accordance herewith or (b) at such other time, date or place as
Parent and the Company may agree. The date on which the Closing occurs is
hereinafter referred to as the "Closing Date."
Section 1.3 Effective Time. If all the conditions to the Merger set
forth in Article 8 shall have been fulfilled or waived in accordance herewith
and this Agreement shall not have been terminated as provided in Article 9,
Parent, Merger Sub and the Company shall cause a certificate of merger (the
"Certificate of Merger") meeting the requirements of section 251 of the DGCL to
be properly executed and filed in accordance with such section on the Closing
Date. The Merger shall become effective at the time of filing of the
Certificate of Merger with the Secretary of State of the State of Delaware in
accordance with the DGCL, or at such later time that the parties hereto shall
have agreed upon and designated in such filing as the effective time of the
Merger (the "Effective Time").
ARTICLE 2
CERTIFICATE OF INCORPORATION AND BYLAWS
OF THE SURVIVING CORPORATION
Section 2.1 Certificate of Incorporation. The certificate of
incorporation of the Company in effect immediately prior to the Effective Time
shall be the certificate of incorporation of the Surviving Corporation, until
duly amended in accordance with applicable law.
Section 2.2 Bylaws. The bylaws of the Company in effect immediately
prior to the Effective Time shall be the bylaws of the Surviving Corporation,
until duly amended in accordance with applicable law.
ARTICLE 3
DIRECTORS AND OFFICERS OF THE
SURVIVING CORPORATION
Section 3.1 Directors of Surviving Corporation. The directors of
Merger Sub immediately prior to the Effective Time shall be the directors of the
Surviving Corporation as of the Effective Time.
Section 3.2 Officers of Surviving Corporation. The officers of the
Company immediately prior to the Effective Time shall be the officers of the
Surviving Corporation as of the Effective Time.
2
<PAGE>
ARTICLE 4
EFFECT OF THE MERGERS ON THE CAPITAL STOCK OF THE
CONSTITUENT CORPORATIONS
Section 4.1 Effect of Merger on Capital Stock.
(a) At the Effective Time, each share of the common stock, par value
$0.01 per share, of Merger Sub outstanding immediately prior to the Effective
Time shall be converted into and become one fully paid and non-assessable share
of Common Stock, par value $0.01 per share, of the Surviving Corporation.
(b) At the Effective Time, each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time (other than (i)
Dissenting Shares (as defined in Section 4.3) and (ii) shares of Company Common
Stock (x) held in the Company's treasury or (y) owned by Parent, Merger Sub or
any other wholly owned Subsidiary (as defined in Section 10.13) of Parent or the
Company) shall, by virtue of the Merger and without any action on the part of
the holder thereof, be converted into the right to receive $1.60 in cash (the
"Consideration"), subject to adjustment as provided in Section 4.4.
(c) As a result of the Merger and without any action on the part of
the holder thereof, each share of Company Common Stock shall cease to be
outstanding and shall be canceled and retired and shall cease to exist, and each
holder of a certificate (a "Certificate") representing any shares of Company
Common Stock (other than (i) Dissenting Shares and (ii) shares of Company Common
Stock (x) held in the Company's treasury or (y) owned by Parent, Merger Sub or
any other wholly owned Subsidiary of Parent or the Company) shall thereafter
cease to have any rights with respect to such shares, except the right to
receive, without interest, the Consideration in accordance with Section 4.2(b)
upon the surrender of such Certificate.
(d) Each share of Company Common Stock and all other shares of capital
stock of the Company that are held in the Company's treasury, and each share of
Company Common Stock and all other shares of capital stock of the Company that
are owned by Parent, Merger Sub or any other wholly owned Subsidiary of Parent
or the Company, shall, at the Effective Time and by virtue of the Merger, cease
to be outstanding, be canceled and retired and cease to exist without payment of
any consideration therefor, and no stock of Parent or other consideration shall
be delivered in exchange therefor.
Section 4.2 Exchange of Certificates Representing
Company Common Stock.
(a) As of the Effective Time, Parent shall deposit, or shall cause to
be deposited, with an exchange agent selected by Parent (the "Exchange Agent"),
for the benefit of the holders of shares of Company Common Stock (other than
Dissenting Shares), for exchange in accordance with this Article 4, cash in an
amount equal to the total aggregate Consideration (such cash being
3
<PAGE>
hereinafter referred to as the "Exchange Fund") to be paid pursuant to Section
4.1(b) in exchange for outstanding shares of Company Common Stock.
(b) As soon as reasonably practicable after the Effective Time, Parent
shall cause the Exchange Agent to mail to each holder of record of one or more
Certificates (other than to (i) holders of Dissenting Shares and (ii) holders of
Company Common Stock that, pursuant to Section 4.1(d), are canceled without
payment of any consideration therefor): (A) a letter of transmittal (the "Letter
of Transmittal") which shall specify that delivery 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 shall be in such form and have such other
provisions as Parent may reasonably specify and (B) instructions for use in
effecting the surrender of the Certificates in exchange for the Consideration.
Upon surrender of a Certificate for cancellation to the Exchange Agent, together
with such Letter of Transmittal, duly executed and completed in accordance with
the instructions thereto, the holder of such Certificate shall be entitled to
receive in exchange for each share of Company Common Stock represented by such
Certificate cash in an amount equal to the Consideration, after giving effect to
any required withholding tax, and the Certificate so surrendered shall forthwith
be canceled. No interest will be paid or accrued on the cash payable to holders
of Certificates. In the event of a transfer of ownership of Company Common
Stock which is not registered in the transfer records of the Company, the
Consideration shall be paid to such a transferee if the Certificate representing
such Company Common Stock is presented to the Exchange Agent, accompanied by all
documents required to evidence and effect such transfer and to evidence that any
applicable stock transfer taxes have been paid.
(c) At or after the Effective Time, there shall be no transfers on the
stock transfer books of the Company of the shares of Company Common Stock which
were outstanding immediately prior to the Effective Time. If, after the
Effective Time, Certificates are presented to the Surviving Corporation or the
Exchange Agent, the presented Certificates shall be canceled and exchanged for
cash in an amount equal to the Consideration deliverable in respect thereof
pursuant to this Agreement in accordance with the procedures set forth in this
Article 4.
(d) Any portion of the Exchange Fund (including the proceeds of any
investments thereof) that remains unclaimed by the former stockholders of the
Company one year after the Effective Time shall be delivered to Parent. Any
former stockholders of the Company who have not theretofore complied with this
Article 4 shall thereafter look only to Parent for payment of the Consideration
deliverable in respect of each Certificate such former stockholder holds as
determined pursuant to this Agreement.
(e) None of Parent, the Surviving Corporation, the Exchange Agent or
any other person shall be liable to any former holder of shares of Company
Common Stock for any amount properly delivered to a public official pursuant to
applicable abandoned property, escheat or similar laws.
4
<PAGE>
(f) Parent and the Exchange Agent shall be entitled to deduct and
withhold from the Consideration otherwise payable pursuant to this Agreement to
any holder of shares of Company Common Stock such amounts as Parent or the
Exchange Agent reasonably determines is required to be deducted and withheld
with respect to the making of such payment under the United States Internal
Revenue Code of 1986, as amended, or any provision of state, local or foreign
tax law. To the extent that amounts are so withheld by Parent or the Exchange
Agent, such withheld amounts shall be treated for all purposes of this Agreement
as having been paid to the holder of the shares of Company Common Stock in
respect of which such deduction and withholding was made by Parent or the
Exchange Agent.
(g) In the event any Certificate shall have been lost, stolen or
destroyed, upon the making of an affidavit of that fact by the person claiming
such Certificate to be lost, stolen or destroyed and, if required by the
Surviving Corporation, the posting by such person of a bond in such reasonable
amount as the Surviving Corporation may direct as indemnity against any claim
that may be made against it with respect to such Certificate, the Exchange Agent
will issue in exchange for such lost, stolen or destroyed Certificate cash in an
amount equal to the Consideration deliverable in respect thereof pursuant to
this Agreement.
Section 4.3 Dissenting Shares. Notwithstanding anything in this
Agreement to the contrary, no share of Company Common Stock, the holder of which
shall not have voted shares in favor of the Merger and shall have properly
complied with the provisions of Section 262 of the DGCL as to appraisal rights
(a "Dissenting Share"), shall be deemed converted into and to represent the
right to receive the Consideration hereunder; and the holders of Dissenting
Shares, if any, shall be entitled to payment, solely from the Surviving
Corporation, of the appraised value of such Dissenting Shares to the extent
permitted by and in accordance with the provisions of Section 262 of the DGCL;
provided, however, that (i) if any holder of Dissenting Shares shall, under the
circumstances permitted by the DGCL, subsequently deliver a written withdrawal
of his or her demand for appraisal of such Dissenting Shares, (ii) if any holder
fails to establish his or her entitlement to rights to payment as provided in
such Section 262 or (iii) if neither any holder of Dissenting Shares nor the
Surviving Corporation has filed a petition demanding a determination of the
value of all Dissenting Shares within the time provided in such Section 262,
such holder or holders (as the case may be) shall forfeit such right to payment
for such Dissenting Shares pursuant to such Section 262 and each such Dissenting
Share shall thereupon be deemed to be converted into the right to receive the
Consideration.
Section 4.4 Adjustment of Consideration. In the event that, subsequent
to the date of this Agreement but prior to the Effective Time, the Company
changes the number of shares of Company Common Stock issued and outstanding as a
result of a stock split, reverse stock split, stock dividend, recapitalization
or other similar transaction without receipt of consideration with respect to
Company Common Stock, the Consideration shall be appropriately adjusted.
5
<PAGE>
Section 4.5 Treatment of Units. All units outstanding as of the
Effective Time under the Company's long-term incentive plan (the "LTIP") shall
continue in full force and effect and shall not be affected in any manner as a
result of the Merger.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent that:
Section 5.1 Existence; Good Standing; Corporate Authority. The Company
is a corporation duly incorporated, validly existing and in good standing under
the laws of its jurisdiction of incorporation. The Company has all requisite
corporate power and authority to own, operate and lease its properties and to
carry on its business as now conducted. The copies of the Company's certificate
of incorporation and bylaws previously made available to Parent are true and
correct and contain all amendments as of the date hereof.
Section 5.2 Authorization, Validity and Effect of Agreements. The
Company has the requisite corporate power and authority to execute and deliver
this Agreement and all other agreements and documents contemplated hereby. This
Agreement and the consummation by the Company of the Merger and the other
transactions contemplated hereby has been duly authorized and approved by a
unanimous vote of a special committee of the Board of Directors of the Company
consisting solely of directors who are not affiliated with Parent (the "Special
Committee") and by all other requisite corporate action, other than, with
respect to the Merger, the approval and adoption of this Agreement by the
Company's stockholders. This Agreement constitutes the valid and legally
binding obligation of the Company, enforceable against the Company in accordance
with its terms, subject to applicable bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights and general principles of
equity.
Section 5.3 Capitalization. The authorized capital stock of the
Company consists of 40,000,000 shares of Company Common Stock and 10,000,000
shares of serial preferred stock, par value $1.00 per share, of the Company
("Company Preferred Stock"). As of March 29, 2000, (i) 30,698,272 shares of
Company Common Stock and no shares of Company Preferred Stock were issued and
outstanding and (ii) no shares of Company Common Stock or Company Preferred
Stock were reserved for issuance. All such issued and outstanding shares of
Company Common Stock are duly authorized, validly issued, fully paid,
nonassessable and free of preemptive rights. There are no outstanding shares of
capital stock and there are no options, warrants, calls, subscriptions,
convertible securities, or other rights, agreements or commitments that obligate
the Company or any of its Subsidiaries to issue, transfer or sell any shares of
capital stock or other voting securities of the Company or any of its
Subsidiaries. The Company has no outstanding bonds, debentures, notes or other
obligations the holders of which have the right to vote (or which are
convertible into or exercisable for securities having the right to vote) with
the stockholders of the Company on any matter.
6
<PAGE>
Section 5.4 No Conflict.
(a) Neither the execution and delivery by the Company of this
Agreement nor the consummation by the Company of the transactions contemplated
hereby in accordance with the terms hereof will: (i) conflict with or result in
a breach of any provisions of the certificate of incorporation or bylaws of the
Company; (ii) violate, or 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 or in a
right of termination or cancellation of, or give rise to a right of purchase
under, or accelerate the performance required by, or result in the creation of
any lien upon any of the properties of the Company or its Subsidiaries under, or
result in being declared void, voidable, or without further binding effect, or
otherwise result in a detriment to the Company or any of its Subsidiaries under,
any of the terms, conditions or provisions of, any note, bond, mortgage,
indenture, deed of trust, license, franchise, permit, lease, contract,
agreement, joint venture or other instrument or obligation to which the Company
or any of its Subsidiaries is a party, or by which the Company or any of its
Subsidiaries or any of their properties is bound or affected; or (iii)
contravene or conflict with or constitute a violation of any provision of any
law, rule, regulation, judgment, order or decree binding upon or applicable to
the Company or any of its Subsidiaries, except, in the case of matters described
in clause (ii) or (iii), as would not have, individually or in the aggregate, a
Company Material Adverse Effect.
(b) Neither the execution and delivery by the Company of this
Agreement nor the consummation by the Company of the transactions contemplated
hereby in accordance with the terms hereof will require any consent, approval or
authorization of, or filing or registration with, any governmental or regulatory
authority, other than (i) the filings provided for in Article 1 and (ii) filings
required the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
with respect to the meeting of the stockholders of the Company to approve and
adopt this Agreement and the transactions contemplated hereby (collectively, the
"Filings"), except for any consent, approval or authorization the failure of
which to obtain and for any filing or registration the failure of which to make
would not have a Company Material Adverse Effect.
Section 5.5 SEC Documents. The Company has made available to Parent
each registration statement, report, schedule, proxy statement or information
statement (other than preliminary materials) filed by the Company with the
Securities and Exchange Commission (the "SEC") since January 1, 1998, each in
the form (including exhibits and any amendments thereto) filed with the SEC
(collectively, the "Company Reports"). As of their respective dates, the
Company Reports (i) were prepared in all material respects in accordance with
the applicable requirements of the Securities Act of 1933, as amended (the
"Securities Act"), the Exchange Act and the rules and regulations promulgated
thereunder and (ii) did not contain any untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to make
the statements made therein, in the light of the circumstances under which they
were made, not misleading, except for such statements, if any, as have been
modified by subsequent filings with the SEC prior to the date hereof. Each of
the consolidated balance sheets included in or incorporated by reference into
the
7
<PAGE>
Company Reports (including the related notes and schedules) fairly presents in
all material respects the consolidated financial position of the Company and its
Subsidiaries as of its date and each of the consolidated statements of income,
cash flows and changes in stockholders' equity of the Company included in or
incorporated by reference into the Company Reports (including any related notes
and schedules) fairly presents in all material respects the results of
operations, cash flows or changes in stockholders' equity, as the case may be,
of the Company and its Subsidiaries for the periods set forth therein (subject,
in the case of unaudited statements, to (x) such exceptions as may be permitted
by Form 10-Q of the SEC and (y) normal year-end audit adjustments), in each case
in accordance with generally accepted accounting principles consistently applied
during the periods involved, except as may be noted therein. Except as and to
the extent set forth on the consolidated balance sheet of the Company and its
Subsidiaries at December 31, 1998, including all notes thereto, as of such date,
neither the Company nor any of its Subsidiaries had any liabilities or
obligations of any nature (whether accrued, absolute, contingent or otherwise)
that would be required to be reflected on, or reserved against in, a balance
sheet of the Company or in the notes thereto prepared in accordance with
generally accepted accounting principles consistently applied, other than
liabilities or obligations which would not have, individually or in the
aggregate, a Company Material Adverse Effect.
Section 5.6 No Brokers. The Company has not entered into any contract,
arrangement or understanding with any person or firm that may result in the
obligation of the Company or Parent to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby, except that the Special Committee has retained Schroder & Co. Inc. as
its financial advisor, the arrangements with which have been disclosed in
writing to Parent prior to the date hereof.
Section 5.7 Vote Required. The affirmative vote of the holders of at
least a majority of the outstanding shares of Company Common Stock, together
with the vote contemplated by Section 8.1(a)(ii), is the only vote of the
holders of any class or series of Company capital stock necessary to approve and
adopt this Agreement and the transactions contemplated hereby.
Section 5.8 Opinion of Financial Advisor. The Special Committee has
received the opinion dated March 28, 2000 (the "Fairness Opinion") of Schroder &
Co. Inc. to the effect that, as of the date thereof, the Consideration is fair,
from a financial point of view, to the holders of the Company Common Stock other
than Parent.
8
<PAGE>
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF PARENT
AND MERGER SUB
Parent and Merger Sub, jointly and severally, represent and warrant to
the Company that:
Section 6.1 Existence; Good Standing; Corporate Authority. Parent and
Merger Sub are corporations duly incorporated, validly existing and in good
standing under the laws of their respective jurisdictions of incorporation.
Parent has all requisite corporate power and authority to own, operate and lease
its properties and to carry on its business as now conducted. The copies of
Parent's certificate of incorporation and bylaws previously made available to
the Company are true and correct and contain all amendments as of the date
hereof.
Section 6.2 Authorization, Validity and Effect of Agreements. Each of
Parent and Merger Sub has the requisite corporate power and authority to execute
and deliver this Agreement and all other agreements and documents contemplated
hereby to which it is a party. This Agreement and the consummation by Parent and
Merger Sub of the transactions contemplated hereby has been duly authorized by
all requisite corporate action on the part of Parent and Merger Sub. This
Agreement constitutes the valid and legally binding obligation of each of Parent
and Merger Sub, enforceable against Parent and Merger Sub in accordance with its
terms, subject to applicable bankruptcy, insolvency, moratorium or other similar
laws relating to creditors' rights and general principles of equity.
Section 6.3 No Brokers. Parent has not entered into any contract,
arrangement or understanding with any person or firm that may result in the
obligation of the Company or Parent to pay any finder's fees, brokerage or
agent's commissions or other like payments in connection with the negotiations
leading to this Agreement or the consummation of the transactions contemplated
hereby.
Section 6.4 No Conflict.
(a) Neither the execution and delivery by Parent and Merger Sub of
this Agreement nor the consummation by Parent and Merger Sub of the transactions
contemplated hereby in accordance with the terms hereof will: (i) conflict with
or result in a breach of any provisions of the certificate of incorporation or
bylaws of Parent or Merger Sub; (ii) violate, or 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 or in a right of termination or cancellation of, or give rise to
a right of purchase under, or accelerate the performance required by, or result
in the creation of any lien upon any of the properties of Parent or its
Subsidiaries under, or result in being declared void, voidable, or without
further binding effect, or otherwise result in a detriment to Parent or any of
its Subsidiaries under, any of the terms, conditions
9
<PAGE>
or provisions of, any note, bond, mortgage, indenture, deed of trust, license,
franchise, permit, lease, contract, agreement, joint venture or other instrument
or obligation to which Parent or any of its Subsidiaries is a party, or by which
Parent or any of its Subsidiaries or any of their properties is bound or
affected; or (iii) contravene or conflict with or constitute a violation of any
provision of any law, rule, regulation, judgment, order or decree binding upon
or applicable to Parent or any of its Subsidiaries, except, in the case of
matters described in clause (ii) or (iii), as would not have, individually or in
the aggregate, a Parent Material Adverse Effect.
(b) Neither the execution and delivery by Parent or Merger Sub of this
Agreement nor the consummation by Parent or Merger Sub of the transactions
contemplated hereby in accordance with the terms hereof will require any
consent, approval or authorization of, or filing or registration with, any
governmental or regulatory authority, other than the Filings, except for any
consent, approval or authorization the failure of which to obtain and for any
filing or registration the failure of which to make would not have a Parent
Material Adverse Effect.
Section 6.5 Merger Sub. Merger Sub was formed solely for the purpose
of engaging in the transactions contemplated by this Agreement and has not
engaged in any activities other than in connection with or as contemplated by
this Agreement.
Section 6.6 Financing. Parent has the financial resources to
consummate the transactions contemplated by this Agreement and to pay the total
aggregate Consideration.
ARTICLE 7
COVENANTS
Section 7.1 Conduct of Businesses. Prior to the Effective Time, except
as expressly contemplated by any other provision of this Agreement or as
required by applicable law, unless Parent has consented in writing thereto, the
Company:
(a) shall, and shall cause each of its Subsidiaries to, conduct its
operations according to their usual, regular and ordinary course in
substantially the same manner as heretofore conducted;
(b) shall use its reasonable best efforts, and shall cause each of
its Subsidiaries to use its reasonable best efforts, to preserve intact
their business organizations and goodwill, keep available the services of
their respective officers and employees and maintain satisfactory
relationships with those persons having business relationships with them;
(c) shall not amend its certificate of incorporation or bylaws;
(d) shall promptly deliver to Parent true and correct copies of any
report, statement or schedule filed with the SEC subsequent to the date of
this Agreement;
10
<PAGE>
(e) shall not (i) except pursuant to the exercise of options,
warrants, conversion rights and other contractual rights existing on the
date hereof, issue any shares of its capital stock, effect any stock split
or otherwise change its capitalization as it existed on the date hereof;
(ii) grant, confer or award any option, warrant, conversion right or other
right not existing on the date hereof to acquire any shares of its capital
stock; (iii) increase any compensation or benefits, except in the ordinary
course of business consistent with past practice, or enter into or amend
any employment agreement with any of its present or future officers or
directors, except with new employees consistent with past practice; or (iv)
adopt any new employee benefit plan (including any stock option, stock
benefit or stock purchase plan) or amend (except as required by law) any
existing employee benefit plan in any material respect, except for changes
which are less favorable to participants in such plans;
(f) shall not (i) declare, set aside or pay any dividend or make any
other distribution or payment with respect to any shares of its capital
stock or (ii) redeem, purchase or otherwise acquire any shares of its
capital stock or capital stock of any of its Subsidiaries, or make any
commitment for any such action;
(g) shall not, and shall not permit any of its Subsidiaries to, sell,
lease or otherwise dispose of any of its assets (including capital stock of
Subsidiaries) that are material to the Company, individually or in the
aggregate, except in the ordinary course of business;
(h) shall not, nor shall it permit any of its Subsidiaries to, agree
in writing or otherwise to take any of the foregoing actions; and
(i) shall not take any action that is likely to delay materially or
adversely affect the ability of any of the parties hereto (i) to obtain any
consent, authorization, order or approval of any governmental commission,
board or other regulatory body or (ii) to consummate the Merger.
Section 7.2 Meetings of Stockholders.
(a) The Company will take all action necessary in accordance with
applicable law and its certificate of incorporation and bylaws to convene a
meeting of its stockholders as promptly as practicable to consider and vote upon
the approval and adoption of this Agreement and the Merger.
(b) The Company, through the Special Committee, shall recommend
approval of such matters subject to the determination by the Board of Directors
of the Company after consultation with counsel that recommending approval of
such matters would not be inconsistent with its fiduciary obligations.
Additionally, the Special Committee may at any time prior to the Effective Time
withdraw, modify, or change any recommendation and declaration regarding this
Agreement or the Merger if in the opinion of the Special Committee after
consultation with its
11
<PAGE>
counsel the failure to so withdraw, modify, or change its recommendation and
declaration would be inconsistent with its fiduciary obligations.
Section 7.3 Proxy Statement.
(a) Each of Parent and the Company shall cooperate and promptly
prepare and the Company shall file as soon as practicable with the SEC under the
Exchange Act a proxy statement with respect to the meeting of the stockholders
of the Company to approve and adopt this Agreement and the transactions
contemplated hereby (the "Proxy Statement"). The respective parties will cause
the Proxy Statement to comply as to form in all material respects with the
applicable provisions of the Exchange Act and the rules and regulations
promulgated thereunder, including Rule 13e-3. The Company will advise Parent,
promptly after it receives notice thereof, of any request by the SEC for
amendment of the Proxy Statement or comments thereon and responses thereto or
requests by the SEC for additional information.
(b) The Company will use its reasonable best efforts to cause the
Proxy Statement to be mailed to its stockholders as promptly as practicable
after the date hereof.
(c) Each of Parent and the Company agrees that the information
provided by it for inclusion in the Proxy Statement and each amendment or
supplement thereto, at the time of mailing thereof and at the time of the
meeting of stockholders of the Company, (i) will not include an untrue statement
of a material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, and (ii) will comply
as to form in all material respects with the provisions of the Exchange Act.
(d) As soon as practicable after the date of this Agreement, Parent,
Merger Sub and the Company shall file with the SEC a Rule 13E-3 Transaction
Statement on Schedule 13E-3 ("Schedule 13E-3"), with respect to the Merger.
Each of the parties hereto agrees to use its reasonable best efforts to
cooperate and to provide each other with such information as any of such parties
may reasonably request in connection with the preparation of the Schedule 13E-3.
Each party hereto agrees promptly to supplement, update and correct any
information provided by it for use in the Schedule 13E-3 if and to the extent
that it is or shall have become incomplete, false or misleading.
Section 7.4 Expenses. Whether or not the Merger is consummated, all
costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses.
Section 7.5 Consents. Each of the Company and Parent shall cooperate,
and use its reasonable best efforts, to make all filings and obtain all
licenses, permits, consents, approvals, authorizations, qualifications and
orders of governmental authorities and other third parties necessary to
consummate the transactions contemplated by this Agreement.
12
<PAGE>
Section 7.6 Publicity. The parties will consult with each other and
will mutually agree upon any press releases or public announcements pertaining
to this Agreement or the transactions contemplated hereby and shall not issue
any such press releases or make any such public announcements prior to such
consultation and agreement, except as may be required by applicable law or by
obligations pursuant to any listing agreement with any national securities
exchange, in which case the party proposing to issue such press release or make
such public announcement shall use its best efforts to consult in good faith
with the other party before issuing any such press releases or making any such
public announcements.
Section 7.7 Indemnification; Insurance.
(a) From and after the Effective Time, Parent shall cause the
Surviving Corporation to indemnify, defend and hold harmless to the fullest
extent permitted under applicable law each person who is now, or has been at any
time prior to the date hereof, an officer or director of the Company or any
Subsidiary thereof (individually, an "Indemnified Party" and, collectively, the
"Indemnified Parties") against all losses, claims, damages, liabilities, costs
or expenses (including reasonable attorneys' fees), judgments, fines, penalties
and amounts paid in settlement in connection with any claim, action, suit,
proceeding or investigation arising out of or pertaining to acts or omissions,
or alleged acts or omissions, with respect to matters occurring through the
Effective Time, by them in their capacities as such, whether commenced, asserted
or claimed before or after the Effective Time. In the event of any such claim,
action, suit, proceeding or investigation (an "Action"), (i) Parent shall cause
the Surviving Corporation to pay, as incurred, the reasonable fees and expenses
of counsel selected by the Indemnified Party, which counsel shall be reasonably
acceptable to the Surviving Corporation, in advance of the final disposition of
any such Action to the fullest extent permitted by applicable law, upon receipt
of any undertaking required by applicable law, and (ii) Parent shall cause the
Surviving Corporation to cooperate in the defense of any such matter; provided,
however, the Surviving Corporation shall not be liable for any settlement
effected without its written consent, and provided further that the Surviving
Corporation shall not be obligated pursuant to this Section 7.7 to pay the fees
and disbursements of more than one counsel for all Indemnified Parties in any
single Action, unless, in the opinion of counsel for any of the Indemnified
Parties, there is a conflict of interests between two or more of such
Indemnified Parties.
(b) The parties agree that the rights to indemnification, including
provisions relating to advances of expenses incurred in defense of any action or
suit, in the certificate of incorporation and bylaws of the Company with respect
to matters occurring through the Effective Time, shall survive the Merger and
shall continue in full force and effect for a period of six years from the
Effective Time; provided, however, that all rights to indemnification in respect
of any Action pending or asserted within such period shall continue until the
disposition of such Action.
(c) For a period of six years after the Effective Time, Parent shall
cause to be maintained officers' and directors' liability insurance covering the
Indemnified Parties who are currently covered, in their capacities as officers
and directors, by Parent's existing officers' and directors' liability insurance
policies on terms substantially no less advantageous to the Indemnified
13
<PAGE>
Parties than such existing insurance, with respect to matters occurring through
the Effective Time; provided that Parent shall not be required to pay annual
premiums in excess of the last annual premium paid by Parent prior to the date
hereof, but in such case shall purchase as much coverage as reasonably
practicable for such amount.
(d) The rights of each Indemnified Party hereunder shall be in
addition to any other rights such Indemnified Party may have under the
certificate of incorporation or bylaws of the Company, under the DGCL, under
indemnity agreements with the Company existing on the date hereof or otherwise.
The provisions of this Section 7.7 shall survive the consummation of the Merger
and expressly are intended to benefit each of the Indemnified Parties.
ARTICLE 8
CONDITIONS
Section 8.1 Conditions to Each Party's Obligation to Effect the
Merger. The respective obligation of each party to effect the Merger shall be
subject to the fulfillment at or prior to the Closing Date of the following
conditions:
(a) This Agreement and the Merger shall have been adopted and
approved by the affirmative vote of (i) holders of a majority of the issued
and outstanding shares of Company Common Stock entitled to vote thereon and
(ii) holders of a majority of the issued and outstanding shares of Company
Common Stock not owned, directly or indirectly, by Parent that are entitled
to vote thereon and that are voting for or against the matter in person or
by proxy at the meeting of stockholders of the Company called for such
purpose.
(b) None of the parties hereto shall be subject to any decree, order
or injunction of a court of competent jurisdiction, U.S. or foreign, which
prohibits the consummation of the Merger; provided, however, that prior to
invoking this condition each party agrees to use its reasonable best
efforts to have any such decree, order or injunction lifted or vacated; and
no statute, rule or regulation shall have been enacted by any governmental
authority which prohibits or makes unlawful the consummation of the Merger.
Section 8.2 Conditions to Obligation of the Company to Effect the
Merger. The obligation of the Company to effect the Merger shall be subject to
the fulfillment at or prior to the Closing Date of the following conditions:
(a) Parent shall have performed in all material respects its
covenants and agreements contained in this Agreement required to be
performed on or prior to the Closing Date and the representations and
warranties of Parent and Merger Sub contained in this Agreement and in any
document delivered in connection herewith shall be true and correct in all
material respects as of the date of this Agreement and as of the Closing
Date (except for representations and warranties made as of a specified
date, which need be true and correct in all material respects only as of
the specified date), and the Company shall have received
14
<PAGE>
a certificate of the Parent, executed on its behalf by its President or a
Vice President of Parent, dated the Closing Date, certifying to such
effect.
(b) At any time after the date of this Agreement, there shall not
have been any event or occurrence that has had or is likely to have a
Parent Material Adverse Effect.
(c) At the time of the mailing of the Proxy Statement to the
stockholders of the Company and at the Effective Time, Schroder & Co. Inc.
shall not have withdrawn the Fairness Opinion.
Section 8.3 Conditions to Obligation of Parent and Merger Sub to
Effect the Merger. The obligations of Parent and Merger Sub to effect the Merger
shall be subject to the fulfillment at or prior to the Closing Date of the
following conditions:
(a) The Company shall have performed in all material respects its
covenants and agreements contained in this Agreement required to be
performed on or prior to the Closing Date and the representations and
warranties of the Company contained in this Agreement and in any document
delivered in connection herewith shall be true and correct in all material
respects as of the date of this Agreement and as of the Closing Date
(except for representations and warranties made as of a specified date,
which need be true and correct in all material respects only as of the
specified date), and Parent shall have received a certificate of the
Company, executed on its behalf by its President or a Vice President of the
Company, dated the Closing Date, certifying to such effect.
(b) At any time after the date of this Agreement, there shall not
have been any event or occurrence that has had or is likely to have a
Company Material Adverse Effect.
ARTICLE 9
TERMINATION
Section 9.1 Termination by Mutual Consent. This Agreement may be
terminated at any time prior to the Effective Time by the mutual written consent
of the Company and Parent.
Section 9.2 Termination by Parent or the Company. This Agreement may
be terminated by Parent or the Company if:
(a) a meeting (including adjournments and postponements) of the
Company's stockholders for the purpose of obtaining the approvals required
by Section 8.1(a) shall have been held and such stockholder approvals shall
not have been obtained; or
(b) a court of competent jurisdiction (U.S. or foreign) or a U.S. or
foreign governmental, regulatory or administrative agency or commission
shall have issued an order,
15
<PAGE>
decree or ruling or taken any other action permanently restraining,
enjoining or otherwise prohibiting the Merger and such order, decree,
ruling or other action shall have become final and non-appealable;
provided, however, that the party seeking to terminate this Agreement
pursuant to this clause (b) shall have used its reasonable best efforts to
remove such injunction, order or decree.
Section 9.4 Termination by the Company. This Agreement may be
terminated prior to the Effective Time, by action of the Board of Directors of
the Company, if (i) there has been a breach by Parent or Merger Sub of any
representation, warranty, covenant or agreement set forth in this Agreement or
if any representation or warranty of Parent or Merger Sub shall have become
untrue, in either case such that the conditions set forth in Section 8.2(a)
would not be satisfied and (ii) such breach is not curable, or, if curable, is
not cured within 30 days after written notice of such breach is given to Parent
by the Company; provided, however, that the right to terminate this Agreement
pursuant to this Section 9.3 shall not be available to the Company if it, at
such time, is in material breach of any representation, warranty, covenant or
agreement set forth in this Agreement such that the condition set forth in
Section 8.3(a) shall not be satisfied.
Section 9.4 Termination by Parent. This Agreement may be terminated at
any time prior to the Effective Time, by action of the Board of Directors of
Parent, if:
(a) (i) there has been a breach by the Company of any representation,
warranty covenant or agreement set forth in this Agreement or if any
representation or warranty of the Company shall have become untrue, in
either case such that the conditions set forth in Section 8.3(a) would not
be satisfied and (ii) such breach is not curable, or, if curable, is not
cured within 30 days after written notice of such breach is given by Parent
to the Company; provided, however, that the right to terminate this
Agreement pursuant to this Section 9.4(a) shall not be available to Parent
if it, at such time, is in material breach of any representation, warranty,
covenant or agreement set forth in this Agreement such that the conditions
set forth in Section 8.2(a) shall not be satisfied; or
(b) the Board of Directors of the Company or the Special Committee
shall have withdrawn or materially modified, in a manner adverse to Parent,
its approval or recommendation of the Merger, or resolved to do so.
Section 9.2 Effect of Termination. In the event of termination of this
Agreement and the abandonment of the Merger pursuant to this Article 9, all
obligations of the parties hereto shall terminate, except the obligations of the
parties pursuant to this Section 9.5 and Section 7.4 and except for the
provisions of Sections 10.3, 10.4, 10.6, 10.8, 10.9, 10.11 and 10.12, provided
that nothing herein shall relieve any party from any liability for any willful
and material breach by such party of any of its covenants or agreements set
forth in this Agreement and all rights and remedies of such nonbreaching party
under this Agreement in the case of such a willful and material breach, at law
or in equity, shall be preserved.
16
<PAGE>
Section 9.6 Extension; Waiver. At any time prior to the Effective
Time, each party may, to the extent legally allowed, (a) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(b) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (c)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party.
ARTICLE 10
GENERAL PROVISIONS
Section 10.1 Nonsurvival of Representations, Warranties and
Agreements. All representations, warranties and agreements in this Agreement or
in any instrument delivered pursuant to this Agreement shall not survive the
Merger; provided, however, that the agreements contained in Article 4, in
Sections 7.4 and 7.7 and this Article 10 shall survive the Merger.
Section 10.2 Notices. Any notice required to be given hereunder shall
be sufficient if in writing, and sent by facsimile transmission or by courier
service (with proof of service), hand delivery or certified or registered mail
(return receipt requested and first-class postage prepaid), addressed as
follows:
(a) if to Parent or Merger Sub:
John Wood Group PLC
John Wood House
East Tullos
Greenwell Road
Aberdeen, Scotland
AB12 3AX
Attention: General Counsel
Facsimile: 011-44-1-224-851-110
with a copy to:
J. David Kirkland, Jr., Esq.
Baker Botts L.L.P.
One Shell Plaza
910 Louisiana
Houston, Texas 77002-4995
Facsimile: (713) 229-1522
17
<PAGE>
(b) if to the Company:
ERC Industries, Inc.
1441 Park Ten Boulevard
Houston, Texas 77084
Attention: President
Facsimile: (281) 398-8086
with a copy to:
Bryce D. Linsenmayer
Haynes and Boone, LLP
1000 Louisiana, Suite 4300
Houston, Texas 77002-5012
Facsimile: (713) 547-2600
or to such other address as any party shall specify by written notice so given,
and such notice shall be deemed to have been delivered as of the date so
telecommunicated, personally delivered or mailed.
Section 10.3 Assignment; Binding Effect; Benefit. Neither this
Agreement nor any of the rights, interests or obligations hereunder shall be
assigned by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties. Subject to the preceding
sentence, this Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their respective successors and assigns. Notwithstanding
anything contained in this Agreement to the contrary, except for the provisions
of Article 4 and Section 7.7, nothing in this Agreement, expressed or implied,
is intended to confer on any person other than the parties hereto or their
respective heirs, successors, executors, administrators and assigns any rights,
remedies, obligations or liabilities under or by reason of this Agreement. The
provisions of Article 4 and Section 7.7 may be enforced by the beneficiaries
thereof.
Section 10.4 Entire Agreement. This Agreement and any documents
delivered by the parties in connection herewith constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all
prior agreements and understandings among the parties with respect thereto. No
addition to or modification of any provision of this Agreement shall be binding
upon any party hereto unless made in writing and signed by all parties hereto.
Section 10.5 Amendments. This Agreement may be amended by the parties
hereto (in the case of the Company, only if authorized by the Special
Committee), at any time before or after approval of matters presented in
connection with the Merger by the stockholders of the Company, but after any
such stockholder approval, no amendment shall be made which by law requires the
further approval of stockholders without obtaining such further approval. This
18
<PAGE>
Agreement may not be amended except by an instrument in writing signed on behalf
of each of the parties hereto.
Section 10.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware without regard to
its rules of conflict of laws. Each of the Company and Parent hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of Delaware and of the United States of America
located in the State of Delaware (the "Delaware Courts") for any litigation
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating thereto except in
such courts), waives any objection to the laying of venue of any such litigation
in the Delaware Courts and agrees not to plead or claim in any Delaware Court
that such litigation brought therein has been brought in an inconvenient forum.
Section 10.7 Counterparts. This Agreement may be executed by the
parties hereto in separate counterparts, each of which when so executed and
delivered shall be an original, but all such counterparts shall together
constitute one and the same instrument. Each counterpart may consist of a number
of copies hereof each signed by less than all, but together signed by all of the
parties hereto.
Section 10.8 Headings. Headings of the Articles and Sections of this
Agreement are for the convenience of the parties only, and shall be given no
substantive or interpretative effect whatsoever.
Section 10.9 Interpretation.
In this Agreement:
(a) Unless the context otherwise requires, words describing the
singular number shall include the plural and vice versa, and words denoting any
gender shall include all genders and words denoting natural persons shall
include corporations and partnerships and vice versa.
(b) The phrase "to the knowledge of" and similar phrases relating to
knowledge of the Company or Parent, as the case may be, shall mean the actual
knowledge of its executive officers.
(c) "Company Material Adverse Effect" shall mean a material adverse
effect or change on (a) the business or financial condition of the Company and
its Subsidiaries on a consolidated basis, except for such changes or effects in
general economic, capital market, regulatory or political conditions or changes
that affect generally the energy services industry, or (b) the ability of the
Company to consummate the transactions contemplated by this Agreement or fulfill
the conditions to Closing.
19
<PAGE>
(d) "Parent Material Adverse Effect" shall mean a material adverse
effect or change on the ability of Parent to consummate the transactions
contemplated by this Agreement or fulfill the conditions to Closing.
Section 10.10 Waivers. Except as provided in this Agreement, no action
taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
Section 10.11 Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broadly as is enforceable.
Section 10.12 Obligation of Parent. Whenever this Agreement requires
Merger Sub (or its successors) to take any action, such requirement shall be
deemed to include an undertaking on the part of Parent to cause Merger Sub to
take such action and a guarantee of the performance thereof.
Section 10.13 Subsidiaries. As used in this Agreement, the word
"Subsidiary" when used with respect to any party means any corporation or other
organization, whether incorporated or unincorporated, of which such party
directly or indirectly owns or controls at least a majority of the securities or
other interests having by their terms ordinary voting power to elect a majority
of the board of directors or others performing similar functions with respect to
such corporation or other organization, or any organization of which such party
is a general partner; provided, however, that for purposes of this Agreement,
prior to the Effective Time, neither the Company nor any of its Subsidiaries
shall be deemed a Subsidiary of Parent.
Section 10.14 Action by the Company. Any action permitted to be
taken by the Company pursuant to Article VIII or IX shall be taken only if
authorized by the Special Committee prior thereto.
20
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Agreement and
caused the same to be duly delivered on their behalf on the day and year first
written above.
JOHN WOOD GROUP PLC
By: /s/ Wendell Brooks
--------------------------------------
Name: Wendell Brooks
Title: Director
ERC ACQUISITION, INC.
By: /s/ Wendell Brooks
--------------------------------------
Name: Wendell Brooks
Title: President
ERC INDUSTRIES, INC.
By: /s/ Alan Senn
--------------------------------------
Name: Alan Senn
Title: President
