SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): AUGUST 22, 1995
IWC RESOURCES CORPORATION
(Exact name of registrant as specified in its charter)
INDIANA 0-15420 35-166886
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
1220 WATERWAY BLVD.
INDIANAPOLIS, INDIANA 46202
(Address of principal (Zip Code)
executive offices)
Registrant's telephone number, including area code:
(317) 639-1501
NOT APPLICABLE
(Former name or former address, if changed since last report)
Page 1 of __ Pages
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS
On August 22, 1995, the Registrant acquired Miller
Pipeline Corporation, an Ohio corporation ("MPC"), by means of a
merger (the "Merger") of MPC into a wholly-owned subsidiary of
the Registrant ("NewCo"). The Merger was completed in accordance
with the terms of a Reorganization Agreement dated as of July 21,
1995 entered into by the Registrant, MPC and NewCo, a copy of
which is enclosed as an exhibit to this report and which is
incorporated by reference herein.
MPC installs, repairs and maintains underground
pipelines used in gas, water and sewer utility transmission and
distribution systems. MPC also repairs and provides installation
services and products for natural gas, water and sewer utilities.
Pursuant to the Merger, the Registrant acquired all of
the assets, and assumed all of the liabilities, of MPC by
operation of law. The Registrant intends to use the property,
plant and equipment and other assets acquired from MPC for
substantially the same purposes as they were used by MPC prior to
the Merger.
In the Merger, the Registrant issued a total of 755,148
shares of its common stock, without par value, and paid
approximately $5,513,000 in cash to the MPC shareholders. The
amount of consideration issued to MPC shareholders was determined
by negotiation between the Registrant and MPC and reflected a
dividend declared by MPC subsequent to March 31, 1995 to
distribute previously taxed earnings. Prior to the Merger,
neither MPC nor any of its shareholders were affiliated with the
Registrant. Following the Merger, management officials of MPC
were made management officials of NewCo.
The Registrant borrowed $5,600,000 from National City
Bank, Indiana, to pay the cash portion of the consideration in
the Merger.
Following the Merger, NewCo changed its name to "Miller
Pipeline Corporation" and continued the operation of the
businesses previously conducted by MPC.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS
(a) Financial statements of businesses acquired:
(1) Audited Balance Sheet of Miller Pipeline Corporation as
of March 31, 1995, the related Statements of Earnings
and Retained Earnings and Cash Flows for the year then
ended, the Notes to Financial Statements, and the
Independent Auditor's Report.
(2) Audited Balance Sheet of Miller Pipeline Corporation as
of March 31, 1994, the related Statements of Earnings
and Retained Earnings and Cash Flows for the year then
ended, the Notes to Financial Statements, and the
Independent Auditor's Report.
(3) The unaudited financial statements of Miller Pipeline
Corporation as of June 30, 1995 and the quarter then
ended required by Rule 3-05(b) of Regulation S-X will
be provided under cover of an amendment on Form 8-K/A
as soon as practicable, but not later than 60 days
after the filing of this report.
(b) Pro forma financial information
The pro forma financial information required pursuant to
Article 11 of Regulation S-X will be provided under cover of
an amendment on Form 8-K/A as soon as practicable but not
later than 60 days after the date of filing this report.
(c) Exhibits
2 Reorganization Agreement dated as of July 21, 1995
(without exhibits other than the Plan and Agreement of
Merger dated as of August 18, 1995).
10(1) Employment Agreement between Miller Pipeline
Corporation (surviving corporation) and Don W. Miller
dated August 22, 1995.
10(2) Employment Agreement between Miller Pipeline
Corporation (surviving corporation) and Dale R. Miller
dated August 22, 1995.
23 Consent of Independent Auditor of Miller Pipeline
Corporation.
Page 1 of __ Pages
<PAGE>
MILLER PIPELINE CORPORATION
Financial Statements and
Supplemental Schedules
March 31, 1995 and 1994
(With Independent Auditors' Report Thereon)
Page 1 of __ Pages
<PAGE>
MILLER PIPELINE CORPORATION
Table of Contents
PAGE
Independent Auditors' Report 1
Balance Sheets 2
Statements of Earnings and Retained Earnings 3
Statements of Cash Flows 4
Notes to Financial Statements 5-7
SCHEDULE
Pipeline Construction, Repair and Other Costs 1
Selling, General and Administrative Expenses 2
Page 1 of __ Pages
<PAGE>
INDEPENDENT AUDITORS' REPORT
The Board of Directors and Stockholders
MILLER PIPELINE CORPORATION:
We have audited the accompanying balance sheets of Miller
Pipeline Corporation as of March 31, 1995 and 1994, and the
related statements of earnings and retained earnings and cash
flows for the years then ended. These financial statements are
the responsibility of the Company's management. Our
responsibility is to express an opinion on these financial
statements based on our audits.
We conducted our audits in accordance with generally accepted
auditing standards. Those standards require that we plan and
perform the audit to obtain reasonable assurance about whether
the financial statements are free of material misstatement. An
audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit
also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating
the overall financial statement presentation. We believe that our
audits provide a reasonable basis for our opinion.
In our opinion, the financial statements referred to above
present fairly, in all material respects, the financial position
of Miller Pipeline Corporation as of March 31, 1995 and 1994, and
the results of its operations and its cash flows for the years
then ended in conformity with generally accepted accounting
principles.
Our audits were made for the purpose of forming an opinion on the
basic financial statements taken as a whole. The supplementary
information included in Schedules 1 and 2 is presented for
purposes of additional analysis and is not a required part of the
basic financial statements. Such information has been subjected
to the auditing procedures applied in the audits of the basic
financial statements and, in our opinion, is fairly stated in all
material respects in relation to the basic financial statements
taken as a whole.
/s/ KPMG Peat Marwick LLP
May 19, 1995
1
<PAGE>
MILLER PIPELINE CORPORATION
Balance Sheets
March 31, 1995 and 1994
<TABLE>
<CAPTION>
ASSETS 1995 1994
<S> <C> <C>
Current assets:
Cash and cash equivalents (note 2) $5,089,865 4,373,272
Receivables:
Pipeline construction and repair, 4,370,353 4,328,810
less allowance for doubtful receivables of
$140,000 and $15,000
Costs and estimated earnings in 2,099,723 1,691,323
excess of billings
Related parties and other 573,844 426,144
Inventories (note 3) 796,771 815,382
Prepaid expenses and other 160,406 146,129
TOTAL CURRENT ASSETS 13,090,962 11,781,060
Property, plant and equipment
(note 4):
Land 467,492 467,492
Land improvements 333,708 319,068
Buildings and improvements 2,024,770 1,989,544
Construction equipment 13,178,908 11,916,489
Transportation equipment 14,167,464 12,612,428
Furniture and fixtures 702,733 573,267
30,875,075 27,878,288
Less accumulated depreciation 20,342,730 18,594,645
10,532,345 9,283,643
Construction in progress 349,847 203,657
NET PROPERTY, PLANT AND EQUIPMENT 10,882,192 9,487,300
Other assets:
Patents and license fees, net of 845,747 306,179
accumulated amortization of $755,414 and
$594,982
Investment in real estate, at cost -- 73,633
less accumulated depreciation
Other 71,443 101,552
$ 24,890,344 21,749,724
2
<PAGE>
LIABILITIES AND STOCKHOLDERS' EQUITY 1995 1994
Current liabilities:
Accounts payable:
Trade $ 1,026,411 1,128,520
Taxes withheld from employees 41,123 54,242
TOTAL ACCOUNTS PAYABLE 1,067,534 1,182,762
Accrued expenses:
Payroll 494,579 443,990
Dividends payable 5,000,000 -
Insurance 1,006,459 806,867
Taxes other than federal income 474,801 418,360
taxes
Other 244,196 383,020
TOTAL ACCRUED EXPENSES 7,220,035 2,052,237
TOTAL CURRENT LIABILITIES 8,287,569 3,234,999
Stockholders' equity:
Common stock, without par value. 46,660 46,660
Authorized, issued and outstanding 233,300
shares, at stated value
Additional paid-in capital 1,109,740 1,109,740
Retained earnings 15,446,375 17,358,325
TOTAL STOCKHOLDERS' EQUITY 16,602,775 18,514,725
$ 24,890,344 21,749,724
</TABLE>
See accompanying notes to financial statements.
3
<PAGE>
MILLER PIPELINE CORPORATION
Statements of Earnings and Retained Earnings
Years ended March 31, 1995 and 1994
19951994
Pipeline construction, repair and
other revenues (note 7) $ 50,952,349 45,957,574
Pipeline construction, repair and
other costs 43,100,369 38,328,482
GROSS PROFIT 7,851,980 7,629,092
Selling, general and administrative
expenses 4,013,480 3,662,844
EARNINGS FROM OPERATIONS 3,838,500 3,966,248
Other income (deductions):
Rental income, net (note 4) 210,481 29,480
Gain (loss) on disposals of land
and equipment, net 47,809 (8,455)
Interest income 178,611 101,790
Miscellaneous income (loss), net 9,478 (7,902)
446,379 114,913
NET EARNINGS 4,284,879 4,081,161
Retained earnings at beginning
of year 17,358,325 14,758,619
Dividends - $26.56 and $6.35
per share (6,196,829) (1,481,455)
Retained earnings at end of year $ 15,446,375 17,358,325
See accompanying notes to financial statements.
4
<PAGE>
MILLER PIPELINE CORPORATION
Statements of Cash Flows
Years ended March 31, 1995 and 1994
1995 1994
Cash flows from operating activities:
Net earnings $ 4,284,879 4,081,161
Adjustments to reconcile net
earnings to net cash provided
by operating activities:
Depreciation and amortization 3,009,052 2,645,557
Gain (loss) on disposals of
equipment and real estate (47,809) 8,455
Provision for bad debts, net 152,264 6,270
Change in operating assets
and liabilities:
Accounts receivable, net (596,214) (1,909,109)
Inventories 222,268 (126,198)
Accounts payable (115,228) 143,318
Accrued expenses 167,798 578,559
Other, net 15,832 (34,725)
NET CASH PROVIDED BY
OPERATING ACTIVITIES 7,092,842 5,393,288
Cash flows from investing activities:
Proceeds from disposals of equipment 185,139 722,974
Purchase of licenses (700,000) (10,000)
Additions to property, plant
and equipment (4,664,559) (4,498,164)
NET CASH USED IN
INVESTING ACTIVITIES (5,179,420) (3,785,190)
Cash used in financing activities -
Dividends paid (1,196,829) (1,539,780)
NET INCREASE IN CASH
AND CASH EQUIVALENTS 716,593 68,318
Cash and cash equivalents
at beginning of year 4,373,272 4,304,954
Cash and cash equivalents
at end of year $ 5,089,865 4,373,272
Supplemental disclosures -
Dividends declared but unpaid $ 5,000,000 -
See accompanying notes to financial statements.
5
<PAGE>
MILLER PIPELINE CORPORATION
Notes to Financial Statements
MILLER PIPELINE CORPORATION
Notes to Financial Statements
March 31, 1995 and 1994
(L) SUMMARY OF SIGNIFICANT ACCOUNTING POLICIES
REVENUE RECOGNITION
Pipeline construction and repair is performed primarily under
short-term contracts with revenue being recognized as
services are performed.
Costs and estimated earnings in excess of billings represent
revenue earned under the percentage of completion method
which are not yet billable or due under terms of the related
contracts.
INVENTORIES
Inventories are valued at the lower of cost or market. Cost
is determined using the last-in, first-out (LIFO) method
except fabricated materials inventory for which cost is
determined using the first-in, first-out (FIFO) method.
PROPERTY, PLANT AND EQUIPMENT
Property, plant and equipment is stated at cost and is
depreciated on a straight-line basis over the estimated
useful lives of the assets which range from five to thirty
years. Routine maintenance and repairs and minor replacement
costs are charged to expense as incurred.
PATENTS, LICENSE, FEES AND ROYALTIES
The Company has purchased the exclusive rights to use or to
sublicense the use of certain pipeline repair technology and
the accompanying patents. Purchased licenses and patents are
amortized on a straight-line basis over periods of 5 to 10
years. Royalties for use of such technologies are recognized
as the related services are performed.
FEDERAL INCOME TAXES
The Company has elected to be taxed as an S Corporation under
the related provisions of the Internal Revenue Code.
Accordingly, no provision for federal income taxes has been
made in the accompanying financial statements. The Company's
taxable income is allocated to the stockholders of the
Company who are responsible for reporting their share of such
income on their personal federal income tax returns.
The Company files composite state and local income tax
returns in certain jurisdictions. Amounts paid aggregated
$99,443 and $34,182 in 1995 and 1994, respectively, and are
included as a component of selling, general and
administrative expenses.
CASH AND CASH EQUIVALENTS
All highly liquid investments with maturities of three months
or less are considered to be cash equivalents.
<PAGE>
MILLER PIPELINE CORPORATION
Notes to Financial Statements
RECLASSIFICATIONS
Certain 1994 amounts have been reclassified to conform with
the 1995 presentation.
(2) CASH AND CASH EQUIVALENTS
Cash and cash equivalents are comprised of both interest
bearing and non-interest bearing deposits. At March 31,
these deposits consisted of the following:
19951994
Non-
interest bearing cash
deposits $ 347,395
466,296
Interest
bearing deposits,
money market funds and
certificates of deposit 4,742,470
3,906,976
$ 5,089,865
4,373,272
The cost of the interest bearing deposits and money market
funds approximates fair value.
(3) INVENTORIES
At March 31, inventories consisted of the following:
1995 1994
Sales inventory $ 791,240 730,333
Fabricated materials inventory 5,531 85,049
$ 796,771
815,382
Sales inventory is valued using the LIFO method. If the FIFO
method had been used, inventories would have been valued
approximately $74,000 and $76,000 higher than reported at
March 31, 1995 and 1994, respectively.
(4) RELATED PARTY TRANSACTIONS
Income from rental of various equipment and office and
warehouse space to related parties under short-term operating
leases amounted to $210,481 in 1995 and $29,480 in 1994.
The Company provides equipment repair services as well as
certain administrative services for an affiliate, Miller
Cable Company. The Company was paid $314,250 and $285,600 in
1995 and 1994, respectively, to offset the cost of providing
equipment repair services and $78,000 in both 1995 and 1994,
to offset the cost of providing administrative services.
These amounts have been netted against the related costs and
expenses.
In 1995, the Company sold equipment and property to Miller
Pipeline Service Corporation, an affiliate. The assets were
sold for $153,693, which amount remains in the Company's
related parties and other receivable balance at March 31,
1995. A gain of $13,635 was recognized on the sale.
Additionally, at March 31, 1995, the Company had other
outstanding receivable balances of $28,113 for rent and
$20,165 for amounts paid to other parties on behalf of Miller
Pipeline Service Corporation.
<PAGE>
MILLER PIPELINE CORPORATION
Notes to Financial Statements
Related party and other receivables includes notes
aggregating $156,376 and $54,376 at March 31, 1995 and 1994,
respectively, due from a Mexican affiliate, Miller De Mexico
S.A. DE C.V. The notes are due on demand and bear interest
at the prime rate plus 4.5%. Related party and other
receivables also includes $164,139 and $335,756 as of March
31, 1995 and 1994, respectively, due from this affiliate.
In December 1993, the Company sold land to its largest
stockholder for its appraised value of $560,000.
(5) LINES OF CREDIT
At March 31, 1995, the Company had $11,400,000 of unsecured
lines of credit, expiring at various dates through October
20, 1996, against which there were no borrowings.
(6) RENTAL EXPENSE
Rental expense for various equipment and warehouse space
under short-term operating leases amounted to approximately
$651,124 and $699,455 in 1995 and 1994, respectively.
(7) MAJOR CUSTOMERS
Revenues from certain of the Company's utility customers
individually account for more than 5% of total Company
revenues. Three customers accounted for 57% of total 1995
revenues while four customers accounted for 65% of total 1994
revenues.
(8) PENSION PLANS
The Company participates in several industry-wide, multi-
employer pension plans for its union employees which provide
for monthly benefits based on length of service. Specified
amounts per compensated hour for each employee are
contributed to the trustees of these plans. The expense for
these plans amounted to $1,541,856 in 1995 and $1,394,962 in
1994. The relative position of each employer participating in
these plans with respect to the actuarial present value of
accumulated plan benefits and net assets available for
benefits is not available.
(9) PROFIT-SHARING PLAN
The Company has a profit-sharing retirement plan which covers
substantially all full-time, non-union employees having at
least one full year of service. The annual contribution is
determined by the Board of Directors, subject to the maximum
amount deductible for federal income tax purposes.
Contributions amounted to $185,202 and $178,344 for 1995 and
1994, respectively.
(10) CONTINGENCIES
The Company is a defendant in a personal injury action in
which the plaintiff is seeking compensatory damages in excess
of $1,000,000 plus punitive damages. Management believes
that the ultimate resolution of this and other litigation
arising in the normal course of business will not have a
material adverse effect on the Company's business or
financial condition.
<PAGE>
SCHEDULE 1
MILLER PIPELINE CORPORATION
Pipeline Construction, Repair and Other Costs
Years ended March 31, 1995 and 1994
1995
1994
Salaries and wages $ 19,370,835 17,630,567
Payroll taxes 3,049,956 2,579,288
Employee benefits (pension, group
insurance, etc.) 4,159,000 3,723,691
Profit-sharing contribution 103,462 86,952
Materials and supplies 6,110,629 4,989,763
Royalties 27,095
67,820
Subcontractors 512,821 603,533
Insurance and bonds 1,111,011 922,044
Equipment maintenance 1,803,913 1,671,939
Gasoline and oil 1,510,390 1,348,627
Depreciation and amortization 2,912,284 2,548,299
Equipment rental 415,313 505,054
Security and traffic control 563,223 493,756
Road and travel expense 299,598 218,231
Licenses and permits 207,114 175,820
Claims and damages 102,999 78,980
Freight 307,421
256,431
Warehouse rent 234,665 194,183
Telephone 212,983
155,933
Utilities 76,213
77,267
Other 9,444
304
$ 43,100,369
38,328,482
<PAGE>
SCHEDULE 2
MILLER PIPELINE CORPORATION
Selling, General and Administrative Expenses
Years ended March 31, 1995 and 1994
1995 1994
Salaries and wages $ 1,791,345 1,778,081
Payroll taxes and employee benefits 235,295 279,023
Profit-sharing contribution 81,740 91,392
Office and data processing supplies 129,440 77,456
Equipment rental 1,146 218
Advertising and promotion 164,369 114,164
Travel and entertainment 318,499 275,310
Telephone 133,076 132,843
Utilities 8,996 8,894
Insurance 8,427 43,141
Professional services 291,416 219,146
Building maintenance and repairs 141,815 175,415
Security 68,551 49,128
Depreciation96,768 97,258
Taxes 287,178 230,532
Dues and subscriptions 21,923 20,156
Bad debt expense 152,264 6,270
Other 81,232 64,417
$ 4,013,480 3,662,844
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
Dated: September 5, 1995
IWC RESOURCES CORPORATION
By: /S/ J.A. ROSENFELD
J.A. Rosenfeld, Executive Vice
President
REORGANIZATION AGREEMENT
Among
IWC RESOURCES CORPORATION
PIPELINE ACQUISITION CORP.
MILLER PIPELINE CORPORATION
and certain of its shareholders
July 21, 1995
<PAGE>
REORGANIZATION AGREEMENT
THIS REORGANIZATION AGREEMENT (this "Agreement"), made
and entered into as of this 21st day of July, 1995, by and among
IWC Resources Corporation, an Indiana corporation ("Resources"),
Pipeline Acquisition Corp., an Indiana corporation and wholly-
owned subsidiary of Resources ("NewCo"), Miller Pipeline
Corporation, an Ohio corporation (the "Company"), and Dale R.
Miller, Don W. Miller and Karl D. Miller (each, a "Principal",
and collectively, the "Principals");
WITNESSETH:
WHEREAS, the Boards of Directors of Resources and the
Company deem it advisable and in the best interests of their
respective corporations that the Company be acquired by Resources
pursuant to the merger of the Company with and into NewCo on the
terms described herein (the "Merger"); and
WHEREAS, the Boards of Directors of Resources, NewCo
and the Company, by resolutions duly adopted, have approved this
Agreement providing for the Merger, and the Boards of Directors
of the Company and NewCo have recommended the Merger Agreement
(as defined herein) and the Merger for approval by their
respective shareholders in accordance with the terms of this
Agreement and applicable law; and
WHEREAS, the Principals are the controlling
shareholders of the Company and will benefit directly from the
Merger and are willing to make certain representations,
warranties, covenants and other agreements to facilitate the
Merger; and
WHEREAS, Resources, NewCo and the Company desire to
make certain representations, warranties, covenants and
agreements in connection with the transactions contemplated by
this Agreement and to prescribe various conditions precedent to
such transactions;
NOW, THEREFORE, in consideration of the premises and
the mutual representations, warranties, covenants and agreements
herein set forth, the parties to this Agreement have agreed, and
hereby agree subject to the terms and conditions hereinafter set
forth, as follows:
ARTICLE I
THE MERGER
1.1 THE MERGER. Upon the terms and subject to the
conditions set forth in this Agreement and the Plan and Agreement
of Merger to be entered into by NewCo and the Company and joined
in by Resources (the "Merger Agreement"), and in accordance with
Indiana and Ohio law, the Company shall be merged with and into
NewCo at the Effective Time (as hereinafter defined). Following
the Merger, the separate corporate existence of the Company shall
cease and NewCo shall continue as the surviving corporation (the
"Surviving Corporation") and shall succeed to and assume all of
the rights and obligations of the Company in accordance with
applicable law.
1.2 THE CLOSING. The closing of the Merger (the
"Closing") shall take place at the offices of Baker & Daniels,
300 North Meridian Street, Suite 2700, Indianapolis, Indiana at
10:00 a.m., Indianapolis time, as soon as practicable following
fulfillment or waiver of all conditions set forth in Articles VI
and VII hereof or at such other place, time and date as the
parties may mutually agree. The date and time at which the
Closing actually occurs is referred to herein as the "Closing
Date".
1.3 EFFECTIVE TIME. As soon as practicable following
the fulfillment or waiver of all conditions set forth in Articles
VI and VII hereof, the parties shall file Articles of Merger in
Indiana and a Certificate of Merger in Ohio (the "Articles of
Merger") executed in accordance with applicable law. The Merger
shall become effective at such time as is specified in the
Articles of Merger (the time the Merger becomes effective being
the "Effective Time"), it being understood that the parties shall
cause the Effective Time to occur on or within three business
days after the Closing Date.
1.4 PURCHASE PRICE. At the Effective Time, each of
the outstanding shares of common stock of the Company shall be
converted into the right to receive the consideration provided
for in the Merger Agreement. The aggregate consideration to be
paid pursuant to the Merger Agreement, shall be equal to
$20,000,000, adjusted as follows: (a) increased by the net
income or decreased by the net loss, as the case may be, reported
by the Company for the period from April 1, 1995 through the last
day of the calendar month preceding the Closing Date and (b)
reduced by the amount of any dividend or distribution in cash,
stock or property with respect to the Company's capital stock
paid or accrued after the date hereof and prior to the Effective
Time (such amount, as adjusted, is referred to as the "Purchase
Price").
1.5 MERGER CONSIDERATION. The Merger Agreement shall
specify the manner and basis for converting shares of capital
stock of the Company into cash and shares of common stock,
without par value, of Resources ("Resources Shares"). The
aggregate value of the Resources Shares issued in the Merger
shall not be less than Thirteen Million Five Hundred Thousand
Dollars ($13,500,000).
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE PRINCIPALS
The Company and the Principals, jointly and severally,
hereby represent and warrant to Resources and NewCo as follows:
2.1 CORPORATE EXISTENCE OF COMPANY.
(a) The Company is a corporation duly organized,
validly existing and in good standing under the laws of
the State of Ohio, and has all requisite power and
authority to own or lease and operate its properties
and to carry on its business as presently conducted.
The Company is duly qualified as a foreign corporation,
and is in good standing, in Indiana and every other
jurisdiction where the conduct of its business or the
character of its properties owned or held under lease
require it to be so qualified, all of which
jurisdictions are listed in the letter to Resources of
even date herewith (the "Disclosure Letter"), which is
made a part of this Agreement as though set forth in
full herein.
(b) The Company has all requisite corporate power
and authority to enter into and perform all of its
obligations under this Agreement. The execution and
delivery of this Agreement by the Company and the
consummation by the Company of the transactions
contemplated hereby have been duly authorized by all
necessary corporate action on the part of the Company,
subject only to the approval of its shareholders. This
Agreement has been duly executed and delivered by the
Company and constitutes the legal, valid and binding
obligation of the Company subject only to the effects
of bankruptcy, insolvency, reorganization,
receivership, moratorium and other similar laws
affecting the rights and remedies of creditors
generally and the effects of general principles of
equity, whether applied by a court of law or equity
(the "Limitations").
2.2 CAPITALIZATION. The authorized capital stock of
the Company consists of 233,300 shares of common stock, without
par value ("Common Stock"), of which 233,300 shares are issued
and outstanding. The Common Stock is owned of record and
beneficially by the shareholders whose names, and the number of
shares held by each, are set forth in the Disclosure Letter. All
outstanding shares of Common Stock have been duly authorized and
validly issued, are fully paid and nonassessable and were not
issued in violation of any preemptive rights. There is
outstanding no security, option, warrant, right, call,
subscription, agreement, commitment or understanding of any
nature whatsoever, real or contingent, to which the Company is a
party that directly or indirectly (i) calls for the issuance,
sale, pledge or other disposition of any Common Stock or of any
other capital stock of the Company or any securities convertible
into, or other rights to acquire, any such Common Stock or other
capital stock of the Company, (ii) obligates the Company to
grant, offer or enter into any of the foregoing, or (iii) relates
to the voting or control of such Common Stock, capital stock,
securities or rights. No person has any right to require the
Company to register any of its securities under the Securities
Act of 1933, as amended (the "Securities Act").
2.3 CAPACITY OF THE PRINCIPALS. Each Principal has
full legal capacity and authority to enter into this Agreement;
and this Agreement has been duly executed and delivered on behalf
of each Principal and constitutes the valid and binding
obligation of such Principal, enforceable against such Principal
in accordance with its terms, except for the Limitations.
2.4 CONSENTS AND APPROVALS. Other than the filings
required under the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and all applicable regulations promulgated
thereunder (collectively, the "HSR Act") any filings required by
federal or state securities laws or as disclosed in the
Disclosure Letter, no consent, approval or authorization of,
exemption by, or filing with, any governmental or regulatory
authority, or any third party, is required in connection with the
execution, delivery and performance by the Company of this
Agreement and the consummation by the Company of the transactions
contemplated hereby.
2.5 NO CONFLICTS. The execution, delivery and
performance of this Agreement by the Company and the consummation
by the Company of the transactions contemplated hereby will not
conflict with, or constitute or result in a breach, default or
violation of (with or without the giving of notice or the passage
of time) any of the terms, provisions or conditions of, (i) the
Articles of Incorporation or By-Laws of the Company; (ii) any
law, ordinance, regulation or rule applicable to the Company;
(iii) any order, judgment, injunction, or other decree by which
the Company or any of its assets or properties is bound; or (iv)
any written or oral contract, agreement, or commitment to which
the Company is a party or by which it or any of its assets or
properties is bound, including agreements between the Company and
its customers except to the extent that consent of third parties
may be required as specified in the Disclosure Letter; nor will
such execution, delivery and performance result in the creation
of any lien, security interest, adverse claim or other
encumbrance upon any properties, assets or rights of the Company.
2.6 SUBSIDIARIES. The Company does not own any
equity ownership interest, directly or indirectly, in any
corporation or other entity. There are no entities in which the
Company owns 50% or more of the outstanding voting stock.
2.7 FINANCIAL STATEMENTS. A copy of the audited
balance sheet of the Company as of March 31, 1995 (the "Balance
Sheet"), and the audited statements of income and retained
earnings and cash flows of the Company for the years ended March
31, 1995 and March 31, 1994, including the notes thereto
(collectively the "Financial Statements"), have been supplied to
Resources. The Balance Sheet fairly presents the financial
position of the Company as at March 31, 1995 and has been
prepared in accordance with generally accepted accounting
principles consistently applied. Except as may be noted therein,
the statements of income and retained earnings and cash flows for
the years ended March 31, 1995 and 1994 fairly present the
results of operations, shareholders' equity and cash flows of the
Company in all material respects for the periods then ended and
have been prepared on a basis consistent with each other.
2.8 LIABILITIES. Except as disclosed in the
Disclosure Letter, as of March 31, 1995, the Company had no
debts, obligations or liabilities of whatever kind or nature,
either direct or indirect, absolute or contingent, matured or
unmatured, and regardless of whether they are of a type required
by generally accepted accounting principles to be included in the
Financial Statements, except debts, obligations and liabilities
that are fully reflected in, or reserved against on, the
Financial Statements. Since March 31, 1995, and except as
disclosed in the Disclosure Letter, the Company has incurred no
liabilities other than in the ordinary course of business.
2.9 ABSENCE OF CERTAIN CHANGES OR EVENTS. Except as
disclosed in the Disclosure Letter or specifically contemplated
by this Agreement, since March 31, 1995, there has not been (a)
any damage, destruction or casualty loss to the physical
properties of the Company (whether covered by insurance or not)
in excess of $10,000 in the aggregate; (b) any material adverse
change in the business, prospects, properties, assets, operations
or financial condition of the Company; (c) any redemption or
other acquisition by the Company of the Company's capital stock
or any declaration, setting aside or payment of any dividend or
other distribution in cash, stock or property with respect to the
Company's capital stock except for cash dividends or
distributions with respect to the Company's capital stock in an
amount not to exceed the net income of the Company for the period
April 1, 1995 through the last day of the calendar month
preceding the Closing Date ("Permitted Dividends"); (d) any entry
into any transaction, commitment or agreement (including without
limitation any borrowing or capital expenditure) not in the
ordinary course of business; (e) any material increase in the
rate or terms of compensation payable or to become payable by the
Company to its directors, officers or employees or any increase
in the rate or terms of any bonus, pension, insurance or other
employee benefit plan, payment or arrangement made to, for or
with any such directors, officers or employees; (f) any
acceleration of sales (i.e., the issuance of services billings at
an accelerated rate outside of the ordinary course of business),
or reduction of aggregate administrative, marketing, advertising
and promotional expenses other than in the ordinary course of
business; (g) any sale, transfer or other disposition of any
asset of the Company to any party, except for (i) payment of
third-party obligations incurred in the ordinary course of
business in accordance with the Company's regular payment
practices, (ii) compensation to employees and officers and
directors in the ordinary course of business, (iii) sales or
transfers for fair consideration, and (iv) abandonment or
disposal of assets deemed of little or no value; (h) any
termination or waiver of any material rights of value to the
business of the Company; or (i) any failure by the Company to pay
their accounts payable or other obligations in the ordinary
course of business consistent with past practice, other than
items disputed by the Company in good faith.
2.10 TITLE TO PROPERTIES. The Company has good and
marketable title to all of the assets and properties which it
purports to own and which are reflected on the Balance Sheet,
free and clear of all liens, security interests, adverse claims,
defects or other encumbrances of any character whatsoever
("Encumbrances"), except for (a) liens for current taxes not yet
due and payable or for taxes the validity of which is being
contested in good faith by appropriate proceedings, (b)
Encumbrances which individually or in the aggregate do not
materially affect the business, operations or financial condition
of the Company, and (c) assets and properties disposed of in the
ordinary course of business since March 31, 1995 or as disclosed
in the Disclosure Letter.
2.11 INTELLECTUAL PROPERTY. Included in the
Disclosure Letter is a complete and accurate list of all patents,
copyrights, trademarks, trade names, service marks, licenses, and
all applications therefor, of the Company (the "Intellectual
Property"). The Company has and owns all right, title and
interest to and in the Intellectual Property, free and clear of
all Encumbrances. Except as disclosed in the Disclosure Letter,
the Company is aware of no person that has challenged the use of
or ownership by the Company of any of the Intellectual Property,
or that uses or claims rights to use any confusingly similar
Intellectual Property. To the Company's best knowledge, the
present conduct of the business of the Company and the use and
registration of the Intellectual Property do not conflict with
any valid patents, copyrights, trademarks, trade names, service
marks licenses or other rights of any other person.
2.12 INSURANCE. Included in the Disclosure Letter is
a complete and accurate list of all insurance policies (the
"Insurance Policies") with respect to the properties, assets,
operations and business of the Company with respect to which the
Company has paid a premium within the last 13 months. All
Insurance Policies listed in the Disclosure Letter are in full
force and effect. Except as disclosed in the Disclosure Letter,
as of July 19, 1995, there were no pending claims against the
insurers under the Insurance Policies by the Company that had
been reported to the Company's Indianapolis office. Except as
disclosed in the Disclosure Letter, there are no unsettled claims
as to which the insurers have denied liability and with respect
to which there is a reasonable likelihood of a settlement or
determination adverse to the Company. To the Company's best
knowledge, there are no circumstances existing which would enable
the insurers to avoid liability under the Insurance Policies in
accordance with the terms thereof. There are no material claims
under the Insurance Policies that have not been properly filed by
the Company, and no insurance company has refused to renew any
material insurance policy of the Company during the past 18
months.
2.13 COMPANY CONTRACTS. The Disclosure Letter
includes a list of the following agreements, contracts,
commitments and understandings (the "Company Contracts") all of
which have been made available to Resources for its review:
(a) All leases of real property to which the
Company is a party (whether as lessor or lessee);
(b) All leases of vehicles, machinery or
equipment to which the Company is a party (whether as
lessor or lessee), involving the payment by or to it of
more than $25,000 in the aggregate with respect to any
one lease, with the annual rental, the termination
date, and the conditions of assignment and renewal
being given with respect to each lease;
(c) All rights, and all licenses, leases, and
other agreements relating to rights, in other tangible
personal property to which the Company is a party,
involving the payment by or to it of more than $25,000
in the aggregate with respect to any one agreement;
(d) All agreements of the Company for the
borrowing or lending of money;
(e) All agreements granting any person a lien,
security interest, or mortgage on any property or asset
of the Company, including any factoring agreement or
agreement for the assignment of receivables or
inventory;
(f) All agreements of the Company guaranteeing,
indemnifying, or otherwise becoming liable for the
obligations or liabilities of another other than the
endorsement of negotiable instruments in the ordinary
course of business;
(g) All agreements of the Company with any
manufacturer or supplier, including agreements with
respect to discounts or allowances or extended payment
terms;
(h) All agreements of the Company with any
distributor, dealer, sales agent, or representative;
(i) All agreements which restrict the Company
from doing any kind of business or from doing business
in any jurisdiction or from competing with any person;
(j) All agreements of the Company for the
purchase of goods, materials, supplies, machinery,
capital assets or services in excess of $25,000;
(k) All shareholders' agreements, proxies, voting
trusts, or powers of attorney to act on behalf of the
Company or in connection with its properties or
business affairs other than such powers to so act as
normally pertain to corporate officers;
(l) All joint venture or partnership agreements
of the Company with any other person;
(m) All agreements of the Company for the
construction or modification of any building or
structure or for the incurrence of any other capital
expenditure;
(n) All advertising agreements of the Company;
(o) All agreements of the Company giving any
party the right to renegotiate or require a reduction
in price or the repayment of any amount previously
paid;
(p) All other agreements and commitments
(including employment and consulting agreements) to
which the Company is a party, by which it is or may be
bound, or from which it does or may derive benefit, and
a description of the terms thereof, with the
termination date and conditions of assignment and
renewal being given in each case, except any contract
or commitment (A) involving the payment by or to the
Company of less than $25,000 in the aggregate as to
such contract or commitment, or, (B) terminable by the
Company without liability or expense on 60 days' notice
or less, or (C) for the purchase or sale of merchandise
or services entered into in the ordinary course of
business, which will be performed by the Company in
less than three months and which will not have any
material adverse effect on the properties and business
of the Company, or (D) covered by any other paragraph
of this Section 2.13; and
(q) The name of each bank in which the Company
has an account or safe deposit box and the names of all
persons authorized to draw thereon or to have access
thereto.
Each of the Company Contracts is valid, binding, and
enforceable in accordance with its terms for the periods (if any)
stated therein, except for the effect of Limitations. The
Company has fulfilled or has taken all actions necessary to
enable it to fulfill when due all of its material obligations
under the Company Contracts, and, to the Company's best
knowledge, there is not, under any of the Company Contracts, any
existing default or event of default or any event which, with or
without the giving of notice or the passage of time, would
constitute a default under any of the Company Contracts. The
Company's relationships with its customers and suppliers are good
commercial relationships, and the Company has not received any
information suggesting that any customer or supplier of the
Company has any present intention of ceasing to do business with
the Company after the consummation of the transactions
contemplated hereby.
2.14 LITIGATION. Except as disclosed in the
Disclosure Letter, there is not now pending any action,
proceeding or investigation in any court or before any
governmental or regulatory authority nor is any such action,
proceeding or investigation threatened in writing or orally
against the Company (a) which seeks to enjoin or obtain damages
in respect of the consummation of the transactions contemplated
hereby, or (b) which would render Resources or NewCo unable to
exercise control over the assets of the Company. The Company is
not subject to any outstanding order, writ, judgment or decree
which, individually or in the aggregate, could have a material
adverse effect on the business, operations or financial condition
of the Company.
2.15 TAXES. (a) All returns relating to federal,
state, local and foreign income, franchise, excise, payroll,
sales, use and property taxes (collectively, "Taxes") that are
required to be filed with respect to the Company and any employee
benefit plan have been filed in a timely manner (taking into
account all extensions of due dates); (b) such returns reflect
accurately all liability for Taxes of the Company for the periods
covered thereby; (c) all Taxes payable by or due from the Company
relating to all periods ending on or before March 31, 1995 have
been paid or accrued on the Financial Statements; (d) the Company
has made a valid and timely election under Subchapter S of the
Code to be treated as a small business corporation, which
election was accomplished in compliance with all applicable
federal and state laws and regulations, has been effective since
a date prior to April 1, 1987, remains in full force and effect
as of the date hereof, and will remain in full force and effect
through the Closing Date; (e) no election under Section 341(f) or
Section 338(g) of the Internal Revenue Code of 1986 (the "Code")
has been, or prior to the Closing Date will be, filed by or on
behalf of the Company; (f) the Company has not executed any
presently effective waiver or extension of any statute of
limitations against assessment and collection of Taxes with
respect to the Company; and (g) the proper amounts have been
withheld by the Company from employees with respect to all
compensation paid to employees for all periods in compliance in
all material respects with the tax and other withholding
provisions of all applicable laws. Except as reflected in the
Financial Statements, no deficiencies for any Taxes have been
asserted in writing or assessed against the Company which remain
unpaid.
2.16 COMPLIANCE WITH LAWS. The Company has complied
in all material respects with all laws, statutes, rules,
regulations, judgments, decrees and orders applicable to its
business.
2.17 EMPLOYEE BENEFITS AND AGREEMENTS.
(a) The Disclosure Letter includes a complete and
accurate list of (i) the names and current rates of
compensation of each director and officer of the
Company and each employee of the Company who is not
covered by a collective bargaining agreement to which
the Company is a party, (ii) all employment contracts
between the Company and each officer or employee
thereof (excluding any contract that has been fully
performed and oral agreements of employment terminable
at will without payment of severance or other benefits
except as are available to employees generally), (iii)
all collective bargaining agreements between the
Company and employee representatives and any other
labor agreements to which the Company is a party, (iv)
all employee benefit plans, programs, policies or
arrangements, whether or not constituting "employee
benefit plans" under Section 3(3) of the Employee
Retirement Income Security Act of 1974, as amended
("ERISA"), including, without limitation, all pension
benefits, welfare benefits, deferred compensation,
supplemental retirement, severance, hospitalization,
medical insurance, life insurance, salary continuation,
sick leave, vacation pay, change-of-control agreements,
bonus, incentive, stock option, stock purchase, phantom
stock, stock appreciation rights, performance shares,
and similar plans either currently maintained by the
Company or, if terminated, under which employees or
former employees have rights that are outstanding, and
all awards and agreements under any of such plans
pursuant to which any employees or former employees
hold outstanding rights, and (v) the names of each
retired employee, officer, or director, if any, of the
Company who is receiving or is entitled to receive any
payments not covered by any employee benefit plan and
his or her age, sex and current benefits. Each of the
contracts or agreements listed in the previous sentence
shall also constitute "Company Contracts" for purposes
of the representations and warranties contained in
Section 2.13 of this Agreement.
(b) The Disclosure Letter includes a complete and
accurate list of all employee pension benefit plans
(within the meaning of section 3(2) of ERISA) that is
subject to the provisions of section 401 of the Code
and which the Company currently maintains or to which
the Company contributes or is required to contribute on
behalf of its employees or as to which the Company has
any other obligation. With respect to each of such
plans, the most recent summary plan descriptions and
the most recently filed Form 5500 for each of such
plans have been provided to Resources. The Disclosure
Letter indicates which of such plans is a multiemployer
plan as defined in section 414(f) of the Code, or
section 3(37) of ERISA. With respect to each plan
described above in this Section 2.17(b): (i) the plan
is qualified under section 401 of the Code and the
trust maintained pursuant thereto is exempt from
federal income taxation under section 501 of the Code,
and nothing has occurred to cause the loss of such
qualification or exemption, (ii) all contributions
required by the Code to be made to the plan for the
plan year most recently ended and for all prior plan
years have been made timely in accordance with the Code
and ERISA, and the Company does not have a minimum
funding waiver outstanding with respect to such plan,
(iii) to the best knowledge of the Company, the
administrators or sponsors of the plan have complied in
all material respects with applicable ERISA and Code
requirements, including requirements as to the filing
of reports, returns, documents, and notices with the
Secretary of Labor and the Secretary of the Treasury,
or the furnishing of such documents to participants or
beneficiaries of such plan, and (iv) the Company has in
all material respects discharged all duties it has to
the plan under sections 404 and 405 of ERISA, and no
party whom the Company is obligated to indemnify for a
breach of those provisions has committed any such
breach.
(c) With respect to any ERISA Plan which is a
multiemployer plan within the meaning of Section 3(37)
of ERISA to which the Company contributes (or has at
any time contributed or had an obligation to
contribute), the Company has or will have, as of the
Closing Date, made or accrued for, all contributions to
each plan required by the terms of the plan or any
collective bargaining agreement, and except as
disclosed in the Disclosure Letter, the Company would
not be subject to any withdrawal liability under Part I
of Subtitle E of Title IV of ERISA if, as of the
Closing Date, the Company was to engage in a complete
withdrawal (as defined in ERISA Section 4203) or
partial withdrawal (as defined in ERISA Section 4205)
from the plan.
(d) The Disclosure Letter includes a complete and
accurate list of each of the following that is
currently maintained by the Company or pursuant to
which it has any obligation: any unfunded deferred
compensation, supplemental death, disability, medical
reimbursement, employee welfare benefit plan (within
the meaning of section 3(1) of ERISA) and, to the
extent not included in Section 2.17(b) above, each
employee pension benefit plan maintained by the
Company. With respect to each such plan that is funded
or required by its express terms to be funded through
insurance, all premiums due and payable with respect to
such insurance have been paid. With respect to each of
such plans, the most recent summary plan descriptions
and the most recently filed Form 5500 for each of such
plans have been provided to Resources.
(e) The Disclosure Letter includes a complete and
accurate list of (i) all governmental or court required
plans, including, but not limited to, affirmative
action plans, with respect to the Company, and (ii) all
governmental or court ordered audits for compliance
with applicable law that would require the continuation
of any such plan or the implementation of any such plan
that has not been put into effect on the date of this
Agreement.
2.18 EMPLOYEE RELATIONS. The Company is in compliance
in all material respects with all federal, state, local or
foreign laws, ordinances, rules and regulations respecting
employment and employment practices, terms and conditions of
employment and wages and hours, and has not and is not engaged in
any unfair labor practice. No unfair labor practice complaint
against the Company is pending before the National Labor
Relations Board (the "NLRB"). There is no labor strike,
jurisdictional dispute, material slowdown or stoppage pending or
threatened against or involving the Company, nor has there been
any such strike, dispute, slowdown or stoppage during the past
three (3) years. Except as disclosed in the Disclosure Letter,
no claim or grievance exists, has been threatened or has been
settled since March 31, 1995 which might have a material adverse
effect on the operations, business, assets, properties or
financial condition of the Company (including, without
limitation, claims of discrimination based on race, sex or age).
No arbitration proceeding arising out of or under any collective
bargaining or other labor agreement is pending and no claim
therefor has been asserted. No collective bargaining or other
labor agreement is currently being negotiated by the Company.
There is no organizational activity involving the Company pending
or threatened by any labor union or group of employees.
There are no representation proceedings involving the Company
pending or threatened with the NLRB, and no labor union or group
of Company employees has made a demand for recognition which is
currently pending.
2.19 LICENSES AND PERMITS. To the best of its
knowledge, the Company has all material governmental licenses and
permits and other governmental authorizations and approvals
required for the conduct of its businesses, as presently
conducted ("Material Permits"). The Disclosure Letter includes a
list of all Material Permits.
2.20 ACCOUNTS RECEIVABLE. All accounts receivable
(including those reduced to promissory notes) reflected on the
Financial Statements represent sales actually made or services
actually rendered in the ordinary course of business. All
accounts receivable (including those reduced to promissory notes)
of the Company as of the Closing Date will represent sales
actually made or services actually rendered or funds advanced in
the ordinary course of business on or prior to the Closing Date,
and shall be collectible in full in accordance with their terms.
2.21 ENVIRONMENTAL MATTERS. To the best knowledge of
the Company, based upon inquiry of the employees of the Company
identified in the Disclosure Letter whom the Principals believe
are the appropriate employees for such inquiries:
(a) The Company has obtained all material
permits, licenses, and other authorizations which are
required with respect to the operation of the
businesses of the Company under federal, state, and
local laws relating to pollution or protection of the
environment, including laws relating to emissions,
discharges, releases, or threatened releases of
pollutants, contaminants, chemicals, or industrial,
toxic, or hazardous substances or wastes into the
environment or otherwise relating to the manufacture,
processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants,
contaminants, chemicals, or industrial toxic or
hazardous substances or wastes ("Environmental Laws").
(b) The Company is in compliance in all material
respects with the terms and conditions of the required
permits, licenses, and authorizations and with all
other limitations, restrictions, conditions, standards,
prohibitions, requirements, obligations, schedules, and
timetables contained in the Environmental Laws or
contained in any regulation, or code, or any judgment,
decree, order or injunction, promulgated, issued, or
entered by or against the Company or with respect to
any of its properties thereunder and the Company has
not received any notice or demand letter with respect
thereto.
(c) There is no pending or threatened action,
suit, investigation, or other proceeding against the
Company relating to the Environmental Laws or any
regulation, code, plan, judgment, decree, order,
injunction, notice, or demand letter promulgated,
issued, or entered by or against the Company
thereunder.
(d) No event, condition, activity, practice,
ownership or lease of real property or other action or
inaction of the Company has or is reasonably likely to:
(i) prevent compliance by the Company with the
Environmental Laws or with any regulation, code,
judgment, decree, order or injunction promulgated,
issued, or entered by or against the Company thereunder
in any manner which could have a material adverse
effect on the business, assets, financial condition, or
results of operations of the Company; (ii) give rise to
any material liability of the Company, including
without limitation, liability under the Comprehensive
Environmental Response, Compensation, and Liability Act
of 1980, as amended by the Superfund Amendments and
Reauthorizations Act of 1986, or similar state or local
laws; or (iii) result in any material claim, action,
proceeding, or notice of violation based on or related
to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport, or handling,
or the emission, discharge, release, or threatened
release into the environment of any pollutant,
contaminant, chemical, or industrial, toxic, or
hazardous substance or waste.
2.22 NO BROKERS. With the exception of KPMG Peat
Marwick, the Company has not engaged or employed any broker or
finder in connection with the transactions contemplated by this
Agreement.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF RESOURCES
Resources hereby represents and warrants to the Company
and the Principals as follows:
3.1 ORGANIZATION. Resources and NewCo are each
corporations duly organized and validly existing under the laws
of the State of Indiana, and each has all requisite corporate
power and authority to carry on its business as it is now being
conducted and to execute, deliver and perform this Agreement and
to consummate the transactions contemplated hereby. NewCo is a
direct, wholly-owned, subsidiary of Resources.
3.2 CORPORATE POWER AND AUTHORITY. The execution,
delivery and performance by Resources and NewCo of this Agreement
and the consummation by them of the transactions contemplated
hereby have been duly authorized by all necessary corporate
action on the part of Resources and NewCo. This Agreement has
been duly and validly executed and delivered by Resources and
NewCo and constitutes the valid and binding obligation of each.
The Resources Shares to be issued in the Merger will be duly
authorized, validly issued and fully paid and nonassessable, and
free and clear of all Encumbrances except for (i) those created
pursuant to this Agreement and the agreements contemplated
hereby, and (ii) those imposed by securities or similar laws.
3.3 CAPITALIZATION. The authorized capital stock of
Resources consists of 10,000,000 common shares, without par value
("Resources Shares"), of which 7,113,679 shares were issued and
outstanding as of June 30, 1995, and 2,000,000 special shares,
without par value, of which 60,000 shares have been designated as
the Series B Convertible Redeemable Preferred Stock (the
"Preferred Stock"), and as of June 30, 1995, there were 51,612
shares of Preferred Stock issued and outstanding. All
outstanding Resources Shares and shares of Preferred Stock have
been duly authorized and validly issued and are fully paid and
nonassessable and were not issued in violation of any preemptive
rights.
3.4 NO CONFLICTS. The execution, delivery and
performance by Resources and NewCo of this Agreement and the
consummation by Resources and NewCo of the transactions
contemplated hereby will not, with or without the giving of
notice or the lapse of time, or both, (i) violate any provision
of law, statute, rule or regulation applicable to Resources or
NewCo, (ii) violate any order, judgment, injunction or decree by
which Resources or NewCo or any of their respective assets or
properties is bound or (iii) conflict with, or result in a breach
or default under, any term or condition of the respective
Articles of Incorporation or By-Laws of Resources or NewCo or any
agreement, contract or commitment or other instrument to which
Resources or NewCo or any of its subsidiaries is a party or by
which any of them may be bound.
3.5 CONSENTS. Other than filings under the HSR Act
and federal and state securities laws, no consent, approval or
authorization of, exemption by, or filing with, any governmental
or regulatory authority, or any third party, is required in
connection with the execution, delivery and performance by
Resources or NewCo of this Agreement or the consummation by
Resources or NewCo of the transactions contemplated hereby.
3.6 NO MATERIAL ADVERSE CHANGE. Since March 31, 1995,
there has not been any material adverse change in the business,
prospects, properties, assets, operations or financial condition
of Resources and its subsidiaries, taken as a whole.
3.7 RESOURCES' SEC REPORTS. Resources has delivered
to the Company (i) Resources' Annual Report on Form 10-K for the
year ended December 31, 1994, and (ii) Resources' Quarterly
Report on Form 10-Q for the period ended March 31, 1995, each in
the form (including exhibits) filed with the Securities and
Exchange Commission (collectively, "Resources' SEC Reports"). As
of their respective dates, Resources' SEC Reports 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 light of the circumstances in
which they were made, not misleading. Each of the consolidated
balance sheets included in or incorporated by reference into
Resources' SEC Reports (including the related notes and
schedules) fairly presented the consolidated financial position
of Resources and its subsidiaries as of its date and each of the
consolidated statements of income, of shareholders' equity and of
cash flows included in or incorporated by reference into
Resources' SEC Reports (including any related notes and
schedules) fairly presented the results of operations,
shareholders' equity and cash flows of Resources and its
subsidiaries for the periods set forth therein (subject, in the
case of unaudited statements, to 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. Resources has filed
all reports required to be filed by Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")
during the preceding twelve (12) months.
3.8 NO BROKERS. Neither Resources nor NewCo has
engaged or employed any broker or finder in connection with the
transactions contemplated by this Agreement.
ARTICLE IV
COVENANTS OF THE COMPANY AND THE PRINCIPALS
The Company and/or the Principals, as the case may be,
covenant and agree with Resources as follows:
4.1 CONDUCT OF BUSINESS. Except as may be otherwise
specifically contemplated by this Agreement or except as
Resources may otherwise consent to in writing between the date
hereof and the Closing Date:
(a) The Company will (i) operate its businesses
only in the ordinary course; (ii) use its best efforts
to preserve its business organization intact; (iii)
maintain its properties, machinery and equipment in as
good a state of operating condition and repair as they
were in on the date of this Agreement, except for
ordinary wear and tear and other maintenance required
by reason of fire, flood or other acts of God (except
that any insurance proceeds paid by reason of any such
casualty after the date hereof shall be applied towards
such maintenance); (iv) continue all of the Insurance
Policies (or comparable insurance) in full force and
effect; (v) use its best efforts to keep available
until the Closing Date the services of its present
officers and key employees; (vi) pay its accounts
payable and all other obligations in the ordinary
course of business; and (vii) use its best efforts to
preserve its relationships with its lenders, suppliers,
customers, licensors and licensees and others having
material business dealings with it such that the
business will not be impaired; and
(b) The Company will not (i) make any change in
its Articles of Incorporation or By-Laws; (ii) make any
change in its issued or outstanding capital stock, or
issue any warrant, option or other right to purchase
shares of its capital stock or any security convertible
into shares of its capital stock, or redeem, purchase
or otherwise acquire any shares of its capital stock,
or declare any dividends or make any other distribution
in respect of its capital stock other than Permitted
Dividends; (iii) voluntarily incur or assume, whether
directly or by way of guarantee or otherwise, any
material obligation or liability, except obligations
and liabilities incurred in the ordinary course of
business ; (iv) mortgage, pledge or encumber any
material part of its properties or assets, tangible or
intangible; (v) sell or transfer any material part of
its assets, property or rights, or cancel any material
claims against others except to the extent contemplated
by the Disclosure Letter; (vi) amend or terminate any
Company Contract or any Material Permit to which it is
a party, except in the ordinary course of business
pursuant to the terms of such agreement; (vii) make any
material change in any plan described in Section 2.17
and set forth in the Disclosure Letter, except as
required by law and except for changes made in the
ordinary course of business in accordance with the
Company's customary practices (including normal
increases in compensation and benefits to persons
consistent with past practice after normal periodic
performance reviews) or as disclosed in the Disclosure
Letter; (viii) make any changes in the accounting
methods, principles or practices employed by it, except
as required by generally accepted accounting
principles; (ix) make any capital expenditure or enter
into any commitment therefor other than in the ordinary
course of business; (x) incur any debt or make any
borrowings, or enter into any commitment therefor; or
(xi) enter into any other agreement, course of action
or transaction material to the Company except in the
ordinary course of business.
4.2 FILINGS/UNDERTAKINGS. The Company shall promptly
make all filings required to be made by it under the HSR Act with
respect to the transactions contemplated by this Agreement. In
addition, the Company will use its best efforts, and will
cooperate with Resources to secure any other necessary consents,
approvals, authorizations and exemptions from governmental
agencies and other third parties, and to obtain the satisfaction
of the conditions specified in Articles VI and VII, as shall be
required in order to enable the parties to effect the
transactions contemplated hereby in accordance with the terms and
conditions hereof.
4.3 ACCESS. The Company shall (a) provide Resources
with such information as Resources may from time to time
reasonably request with respect to the Company and the
transactions contemplated by this Agreement, (b) provide
Resources and its officers, accountants, counsel and other
authorized representatives reasonable access during regular
business hours and upon reasonable notice to the properties,
books, and records of the Company, or as Resources may otherwise
from time to time reasonably request, and (c) permit Resources to
make such inspections thereof as Resources may reasonably
request.
4.4 CONFIDENTIALITY.
(a) Unless and until the Closing is consummated,
the Company and the Principals (for purposes of this
Section 4.4, the "Recipient"), will keep confidential
any information which has been furnished to any one or
more of them by or on behalf of Resources (for purposes
of this Section 4.4, the "Provider"), in connection
with the transactions contemplated by this Agreement
("Confidential Information"), and shall use the
Confidential Information solely in connection with the
transactions contemplated by this Agreement. If this
Agreement is terminated, the Recipient will return all
Confidential Information to the Provider and either
destroy any writings prepared by or on behalf of the
Recipient based on Confidential Information or deliver
such writings to the Provider. Confidential
Information does not include information which (i) is
or becomes (but only after it becomes) generally
available to the public other than as a result of
disclosure in violation of this Section 4.4, or (ii) is
or becomes (but only after it becomes) available to the
Recipient on a non-confidential basis from a source
other than the Provider, or any of its agents or
advisors or employees, provided that such source is not
bound by a confidentiality agreement with the Provider
in respect thereof.
(b) The Recipient may disclose Confidential
Information to any of its directors, officers,
employees, agents, and advisors. In any event, the
Recipient will be responsible for damages incurred by
the Provider arising from any breach of this Section
4.4 by any person or entity to whom Confidential
Information shall have been furnished. The Recipient
may disclose Confidential Information if required by
legal process or by operation of applicable law (but
only to the extent so required and only after
reasonable written notice to Provider, unless the
giving of such notice would violate applicable law).
4.5 EXCLUSIVITY. Resources shall have the exclusive
right through the close of business on November 30, 1995 (or such
later date as the term of this Agreement may be extended by the
parties hereto in writing), to consummate the transactions
contemplated herein, and during such exclusive period, neither
the Principals, the Company nor any of their authorized
representatives will solicit or accept any other offer to
purchase any of the capital stock or all or any significant part
of the assets of the Company or any similar transaction nor hold
discussions or negotiations with, or provide any information to,
any other individual or corporation, partnership or other entity
concerning such purchase (other than such discussions which are
in furtherance of the transactions contemplated herein).
4.6 SHAREHOLDER APPROVAL OF MERGER. The Company
shall promptly call a meeting of the shareholders of the Company
to approve this Agreement, the Merger Agreement and the
transactions contemplated thereby. The Principals agree to vote
their shares of Common Stock in favor thereof.
4.7 FINAL "S CORPORATION" INCOME TAX RETURNS. The
Company shall cause to be prepared and shall file in a timely
manner (taking into account any extensions of due dates) the
Company's federal and state income tax returns for the period
from March 31, 1995 through the last day of the calendar month
preceding the Closing Date and shall promptly thereafter furnish
to Resources a copy of each Shareholder's related Form K-1
Shareholder's Share of Income, Credits, Deductions, Etc. (each, a
"Form K-1").
4.8 ENVIRONMENTAL ASSESSMENTS. At least 15 days
prior to the Closing Date, the Company shall have provided to
Resources environmental assessments prepared by an environmental
engineer designated by Resources for all real property owned or
leased by the Company except for properties subject to month-to-
month leases.
4.9 EXECUTION OF MERGER AGREEMENT. On the day prior
to the Closing Date, the Company shall enter into the Merger
Agreement in the form attached hereto as Exhibit A, except that
Section 3.01 will be completed to reflect the actual Purchase
Price as provided in Article I hereof.
4.10 COMPANY EXPENSES. All fees and expenses of the
Company, incurred or expected to be incurred by it in connection
with the transactions contemplated by this Agreement, including
the fees and disbursements of its financial advisor, KPMG Peat
Marwick, accountants, counsel and other advisors, together with
one-half of the expenses incurred in connection with the
environmental assessments contemplated by Section 4.8 and one-
half of the filing fee to be paid by Resources under the HSR Act,
shall be included in the determination of Company's net income or
net loss pursuant to Section 1.4.
4.11 ACTIONS RELATING TO TAX TREATMENT. The Company
and the Principals shall not take any actions, prior to or
following the Closing, that would be inconsistent with the Merger
qualifying as a tax-free reorganization under Sections
368(a)(1)(A) and 368(a)(2)(D) of the Code.
ARTICLE V
COVENANTS OF RESOURCES
Resources hereby covenants and agrees with the Company
and the Principals as follows:
5.1 FILINGS/UNDERTAKINGS. Resources will promptly
make all filings required to be made by it under the HSR Act and
applicable federal and state securities laws with respect to the
transactions contemplated by this Agreement. In addition,
Resources will use its best efforts and will cooperate with the
Company to secure any other necessary consents, approvals,
authorizations and exemptions from governmental agencies and
other third parties and to obtain the satisfaction of the
conditions specified in Articles VI and VII, as shall be required
in order to enable the parties to effect the transactions
contemplated hereby in accordance with the terms and conditions
hereof.
5.2 CONFIDENTIALITY.
(a) Unless and until the Closing is consummated,
Resources (for purposes of this Section 5.2, the
"Recipient"), will keep confidential any information
which has been furnished to it by or on behalf of the
Principals or the Company, as the case may be (for
purposes of this Section 5.2, the "Provider"), in
connection with the transactions contemplated by this
Agreement ("Confidential Information"), and shall use
the Confidential Information solely in connection with
the transactions contemplated by this Agreement. If
this Agreement is terminated, the Recipient will return
all Confidential Information to the Provider and either
destroy any writings prepared by or on behalf of the
Recipient based on Confidential Information or deliver
such writings to the Provider. Confidential
Information does not include information which (i) is
or becomes (but only when it becomes) generally
available to the public other than as a result of
disclosure in violation of this Section 5.2, or (ii) is
or becomes (but only when it becomes) available to the
Recipient on a non-confidential basis from a source
other than the Provider, or any of its agents or
advisors or employees, provided that such source is not
bound by a confidentiality agreement with the Provider
in respect thereof.
(b) The Recipient may disclose Confidential
Information to any of its directors, officers,
employees, agents, and advisors. In any event, the
Recipient will be responsible for damages incurred by
the Provider arising from any breach of this Section
5.2 by any person or entity to whom Confidential
Information shall have been furnished. The Recipient
may disclose Confidential Information if required by
legal process or by operation of applicable law (but
only to the extent so required and only after
reasonable written notice to the Provider, unless the
giving of such notice would violate applicable law).
5.3 EXECUTION OF MERGER AGREEMENT. On the day prior
to the Closing Date, Resources and NewCo shall enter into the
Merger Agreement in the form attached hereto as Exhibit A, except
that Section 3.01 shall be completed to reflect the actual
Purchase Price as provided in Article I hereof.
5.4 ACTIONS RELATING TO TAX TREATMENT. Resources and
NewCo shall not take any actions, prior to or following the
Closing, that would be inconsistent with the Merger qualifying as
a tax-free reorganization under Sections 368(a)(1)(A) and
368(a)(2)(D) of the Code.
5.5 EXCHANGE ACT REPORTS. Resources shall deliver to
the Company, as soon as available, copies of periodic reports and
other reports filed by Resources with the Securities and Exchange
Commission (the "Commission") through the Closing Date.
5.6 DIRECTORS AND OFFICERS' LIABILITY INSURANCE AND
INDEMNIFICATION.
(a) Following the Effective Time, the Surviving
Corporation will provide the directors and officers of
the Company who remain directors and officers of the
Surviving Corporation with the same directors' and
officers' insurance coverage that Resources provides to
directors and officers of its other subsidiaries
generally.
(b) For two years following the Effective Time,
Resources shall cause the Surviving Corporation to
indemnify, defend and hold harmless the present and
former officers, directors, employees and agents of the
Company (each, an "Indemnified Party") against all
losses, expenses (including attorneys' fees), claims,
damages or liabilities arising out of actions or
omissions occurring on or prior to the Effective Time
(including, without limitation, the transactions
contemplated by this Agreement) to the full extent then
permitted under Indiana law and by the Surviving
Corporation's Articles of Incorporation in effect at
the Effective Time, including provisions relating to
advances of expenses incurred in the defense of any
action or suit.
(c) If after the Effective Time the Surviving
Corporation or any of its successors or assigns (i)
shall consolidate with or merge into any other
corporation or entity and shall not be the continuing
or surviving corporation or entity of such
consolidation or merger or (ii) shall transfer all or
substantially all of its properties and assets to any
individual, corporation or other entity, then and in
each such case, proper provision shall be made so that
the successors and assigns of the Surviving Corporation
shall assume any remaining obligations set forth in
this Section 5.6. If the Surviving Corporation shall
liquidate, dissolve or otherwise wind up its business,
then Resources shall indemnify, defend and hold
harmless each Indemnified Party to the same extent and
on the same terms that the Surviving Corporation was so
obligated pursuant to this Section 5.6.
5.7 EMPLOYEE BENEFITS. Resources shall cause the
Surviving Corporation to provide the benefits described in this
Section 5.7 to each person who remains an employee of the
Surviving Corporation following the Effective Time (each, a
"Continued Employee"). Subject to the right of subsequent
amendment or termination in Resources' discretion, each Continued
Employee shall be entitled, as an employee of the Surviving
Corporation, to participate in such employee benefit plans, as
defined in Section 3(3) of ERISA, or any non-qualified employee
benefit plans or deferred compensation, stock option, restricted
stock, dividend reinvestment and stock purchase plan, bonus or
incentive plans, or other employee benefit or fringe benefit
programs that the Company has in effect on the Effective Time.
In addition, each Continued Employee shall be eligible to
participate in the Dividend Reimbursement and Share Purchase Plan
of Resources and such other employee benefit plans or
arrangements of Resources that Resources, in its sole discretion,
determines to extend to the Continued Employees (the "Resources
Plans"). Resources may terminate or modify the employee benefit
plans and arrangements maintained by the Company prior to the
Effective Time except insofar as benefits thereunder shall have
vested on the Effective Time and cannot be modified; provided
that the Company plans maintained by the Surviving Corporation
following the Effective Time and any Resources Plans shall
provide benefits on terms and conditions at least as favorable as
those provided to Company employees under Company plans in effect
immediately prior to the Effective Time. Resources shall, for
purposes of vesting and any age or period of service requirements
for commencement of participation with respect to any Resources
Plans in which Continued Employees may participate, credit each
Continued Employee with his or her term of service with the
Company.
ARTICLE VI
CONDITIONS TO RESOURCES' AND NEWCO'S OBLIGATIONS
The obligations of Resources and NewCo to consummate
the transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the
following conditions, except such conditions as Resources and
NewCo may waive:
6.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF
PRINCIPALS AND COMPANY. The Principals and the Company shall
have complied in all material respects with all of their
agreements and covenants contained herein required to be complied
with at or prior to the Closing Date, and all the representations
and warranties of the Company and the Principals contained
herein, including the Disclosure Letter, shall be true on and as
of the Closing Date with the same effect as though made on and as
of the Closing Date. Resources shall have received a certificate
executed by the chief executive officer of the Company and each
of the Principals, dated as of the Closing Date, certifying as to
the fulfillment of the conditions set forth in this Section 6.1.
6.2 APPROVAL OF MERGER. The Merger shall have been
duly approved by the shareholders of the Company.
6.3 FURTHER ACTION. All action (including
notifications and filings) that shall be required to be taken by
the Company or the Principals in order to consummate the
transactions contemplated hereby shall have been taken and all
consents, approvals, authorizations and exemptions from third
parties that shall be required by the Company or the Principals
in order to enable the Company and the Principals to consummate
the transactions contemplated hereby shall have been duly
obtained, and, as of the Closing Date, the transactions
contemplated hereby shall not violate any applicable law or
governmental regulation.
6.4 ENVIRONMENTAL CONDITIONS. The environmental
assessments delivered by the Company pursuant to Section 4.8
hereof (a) shall not disclose any evidence of any (i)
contamination of any real property owned or leased by the Company
by any hazardous or special wastes, substances, materials,
constituents, pollutants or contaminants (as defined by federal,
state or local laws, statutes, ordinances, rules or regulations)
or (ii) conditions existing on such owned or leased real property
that may give rise to any future civil, criminal or
administrative environmental proceedings or investigations with
respect thereto or the Company's use thereof or that require
remediation or other curative actions that would involve an
expenditure in excess of $50,000, and (b) shall be, in all other
respects, acceptable to Resources.
6.5 INVESTMENT LETTERS. Resources shall have received
from each shareholder of the Company an Investment Letter in the
form attached hereto as Exhibit B.
6.6 NO GOVERNMENTAL OR OTHER PROCEEDING. No order of
any court or governmental or regulatory authority or body which
restrains or prohibits the transactions contemplated hereby shall
be in effect on the Closing Date and no suit or investigation by
any government agency to enjoin the transactions contemplated
hereby or seek damages or other relief as a result thereof shall
be pending or threatened as of the Closing Date.
6.7 MATERIAL ADVERSE CHANGE. Resources shall have
received a certificate executed by the chief executive officer of
the Company and each of the Principals to the effect that, since
the date of this Agreement, there has been no change, occurrence
or circumstance in the business, assets, results of operations,
financial condition or business prospects of the Company having
or reasonably likely to have, individually or in the aggregate, a
material adverse effect on the Company.
6.8 OPINION OF COMPANY'S COUNSEL. Resources shall
have received an opinion of counsel for the Company, dated the
Closing Date, in substantially the form attached hereto as
Exhibit C.
6.9 EMPLOYMENT AGREEMENTS. Dale R. Miller shall have
executed an Employment Agreement in the form attached hereto as
Exhibit D, and Don W. Miller shall have executed an Employment
Agreement in the form attached hereto as Exhibit E.
6.10 HSR ACT. The applicable waiting period,
including any extension thereof, under the HSR Act shall have
expired or otherwise been terminated.
6.11 MCC-RELATED AGREEMENTS. The Company shall have
entered into agreements with Miller Cable Company, an Ohio
corporation ("MCC") on terms acceptable to Resources, providing
for MCC's use of space at the Company's facilities and the
sharing of expenses, including compensation, of persons who are
acting as joint employees of the Company and MCC (the "MCC
Agreement"). The MCC Agreement shall include provisions whereby
James Chamberlin, an employee of MCC and the Company, agrees with
the Company not to compete in the business of installing,
repairing and retrofitting underground pipelines in such
geographic areas and for such periods of time as are satisfactory
to Resources. In addition, Don W. Miller, Dale R. Miller, Karl
D. Miller and James Chamberlin as shareholders of MCC shall have
entered into agreements satisfactory to Resources providing
Resources with a right of first refusal to purchase the stock of
MCC upon substantially the same terms and for substantially the
same price as the terms and price contained in any bona fide
third party offer to the shareholders thereof and restricting the
MCC shareholders from approving other offers for MCC or any of
its assets.
6.12 OPINION OF KPMG PEAT MARWICK. Resources shall
have received, addressed to it, the opinion of KPMG Peat Marwick
to the effect that the Merger will constitute a tax-free
reorganization under Sections 368(a)(1)(A) and 368(a)(2)(D) of
the Code.
ARTICLE VII
CONDITIONS TO COMPANY'S OBLIGATIONS
The obligations of the Company to consummate the
transactions contemplated hereby shall be subject to the
satisfaction on or prior to the Closing Date of all of the
following conditions, except such conditions as the Company may
waive:
7.1 REPRESENTATIONS, WARRANTIES, AND COVENANTS OF
RESOURCES. Resources shall have complied in all material
respects with all of its agreements and covenants contained
herein required to be complied with at or prior to the Closing
Date, and all of the representations and warranties of Resources
contained herein shall be true in all material respects on and as
of the Closing Date with the same effect as though made on and as
of the Closing Date. The Company shall have received a
certificate of Resources, dated as of the Closing Date and signed
by an executive officer of Resources, certifying as to the
fulfillment of the conditions set forth in this Section 7.1.
7.2 FURTHER ACTION. All action (including
notifications and filings) that shall be required to be taken by
Resources in order to consummate the transactions contemplated
hereby shall have been taken and all consents, approvals,
authorizations and exemptions from third parties that shall be
requested in order to enable Resources to consummate the
transactions contemplated hereby shall have been duly obtained,
and, as of the Closing Date, the transactions contemplated hereby
shall not violate any applicable law or governmental regulation.
7.3 NO GOVERNMENTAL OR OTHER PROCEEDING. No order of
any court or governmental or regulatory authority or body which
restrains or prohibits the transactions contemplated hereby shall
be in effect on the Closing Date and no suit or investigation by
any government agency to enjoin the transactions contemplated
hereby or seek damages or other relief as a result thereof shall
be pending or threatened in writing as of the Closing Date.
7.4 OPINION OF RESOURCES' COUNSEL. The Principals
shall have received an opinion of Baker & Daniels, counsel to
Resources, dated the Closing Date, substantially in the form
attached hereto as Exhibit F.
7.5 HSR ACT. The applicable waiting period,
including any extension thereof, under the HSR Act shall have
expired or otherwise been terminated.
7.6 MATERIAL ADVERSE CHANGE. The Company shall have
received a certificate executed by an executive officer of
Resources to the effect that, since the date of this Agreement,
there has been no change, occurrence or circumstance in the
business, assets, results of operations, financial condition or
business prospects of Resources having or reasonably likely to
have, individually or in the aggregate, a material adverse effect
on Resources and its subsidiaries, taken as a whole.
7.7 OPINION OF KPMG PEAT MARWICK. The Company and the
Principals shall have received, addressed to them, the opinion of
KPMG Peat Marwick to the effect that the Merger constitutes a
tax-free reorganization under Sections 368(a)(1)(A) and
368(a)(2)(D) of the Code.
ARTICLE VIII
SURVIVAL AND INDEMNIFICATION
8.1 SURVIVAL. The representations, warranties and
covenants contained herein, or in any instrument or certificate
delivered pursuant hereto, shall survive Closing for a period of
two (2) years, except that any claim for indemnification arising
out of Sections 2.15, 2.21 or 8.7 shall survive for the
applicable statute of limitations period.
8.2 GENERAL INDEMNIFICATION. Subject to the
provisions of Section 8.1, from and after the Closing, the
Principals, jointly and severally, on the one hand, and
Resources, on the other hand, shall indemnify and hold harmless
the other (the party seeking indemnification or asserting a claim
being referred to as the "Indemnified Party") from and against
any and all claims, losses, liabilities and damages, including,
without limitation, amounts paid in settlement, interest,
penalties, reasonable costs of investigation and reasonable fees
and disbursements of counsel, accountants and experts
(collectively, "Claims"), arising out of or resulting from the
inaccuracy of any representation or warranty, or the breach of
any covenant or agreement, contained herein or in any instrument
or certificate delivered pursuant hereto, by the party against
whom indemnification or relief is sought (the "Indemnifying
Party").
8.3 NOTICE OF CLAIMS. The Indemnified Party shall
notify the Indemnifying Party in writing of any Claim, specifying
in reasonable detail the basis of such Claim, the facts
pertaining thereto and, if known, the amount, or an estimate of
the amount, of the liability arising therefrom. The Indemnified
Party shall provide to the Indemnifying Party as promptly as
practicable thereafter all information and documentation
necessary to support and verify the Claim asserted and the
Indemnifying Party shall be given reasonable access to all books
and records in the possession or control of the Indemnified Party
or any of its affiliates which the Indemnifying Party reasonably
determines to be related to such Claim.
8.4 DEFENSE. If the facts giving rise to a right to
indemnification arise out of the Claim of any third party, or if
there is any Claim against a third party, the Indemnifying Party
may assume the defense or the prosecution thereof, including the
employment of counsel, at its cost and expense. The Indemnified
Party shall have the right to employ counsel separate from
counsel employed by the Indemnifying Party in any such action and
to participate therein, but the fees and expenses of such counsel
employed by the Indemnified Party shall be at its expense. The
Indemnifying Party shall not be liable for any settlement of any
such Claim effected without its prior written consent which
consent shall not be unreasonably withheld. Whether or not the
Indemnifying Party does choose to so defend or prosecute such
Claim, all the parties hereto shall cooperate in the defense or
prosecution thereof and shall furnish such records, information
and testimony, and attend such conferences, discovery
proceedings, hearings, trials and appeals, as may be reasonably
requested in connection therewith. The Indemnifying Party shall
be subrogated to all rights and remedies of the Indemnified Party
to the extent of any indemnifications provided hereunder.
8.5 LIMITATIONS ON GENERAL INDEMNITY OBLIGATIONS. The
Principals shall have no obligation to indemnify Resources
pursuant to Section 8.2 for any Claims for indemnification or to
respond in damages for any other Claim under or pursuant to any
provision of this Agreement or any instrument or certificate
delivered pursuant hereto, however denominated, except to the
extent that the aggregate dollar amount of all unpaid Claims
exceeds $50,000.
8.6 INDEMNITY RELATED TO ACCOUNTS RECEIVABLE. The
Principals, jointly and severally, shall indemnify and hold
Resources harmless from and against all Claims arising out of or
resulting from any of the Company's accounts receivable in
existence on the Closing Date not being paid in full within two
(2) years thereof. The liability, if any, of the Principals
under this Section 8.6 shall be equal to the Closing Date book
value of such accounts receivable, reduced by any reserves
established by the Company as of the Closing Date and any
recoveries on such accounts receivable in excess of their Closing
Date book value. Resources shall cause the Surviving Corporation
to transfer to the Principals, any accounts receivable that are
the subject of a claim for indemnification pursuant to this
Section 8.6. Resources shall cause the Surviving Corporation to
pay to the Principals two (2) years after the Closing Date the
amount, if any, by which the aggregate recoveries made during
such two year period on the accounts receivable in existence on
the Closing Date exceed the Closing Date book value of such
receivables. Notwithstanding anything to the contrary in this
Agreement, the indemnity in this Section 8.6 shall be the sole
remedy for a breach of any representation and warranty made in
Section 2.20 hereof.
8.7 TAX-RELATED INDEMNITY. Resources shall cause the
Surviving Corporation to indemnify the shareholders of the
Company for any federal income tax and interest arising out of
the net income of the Company from the first day of the calendar
month in which the Closing Date occurs through the day
immediately preceding the Effective Time.
ARTICLE IX
REGISTRATION RIGHTS
9.1 INCIDENTAL REGISTRATION. If Resources, at any
time or from time to time during the two (2) year period
following the Effective Time, proposes to register any shares of
its common stock, without par value, under the Securities Act
(other than on Forms S-8 or S-4), it will each such time give
written notice to all holders of outstanding Resources Shares
issued in the Merger of its intention to do so and, upon the
written request of any such holder made within 10 days after the
receipt of any such notice (which request shall specify the
Resources Shares intended to be disposed of by such holder and
state the intended method of disposition thereof), Resources will
use its best efforts to cause all such Resources Shares, the
holders of which shall have so requested the registration
thereof, to be registered under the Securities Act to the extent
requisite to permit the disposition (in accordance with the
intended methods thereof as aforesaid) by the holders of the
Resources Shares to be so registered. Notwithstanding the
foregoing provisions of this Section 9.1, if the securities which
Resources proposes to register are to be registered in connection
with an underwritten offering, and, in the written opinion of the
managing underwriter of such offering, the proposed disposition
by the holders of Resources Shares would adversely affect such
offering, then all holders of Resources Shares who have requested
the registration thereof shall reduce the number of Resources
Shares each intended to dispose of through such offering on a
pro-rata basis so that the aggregate amount to be sold by such
holders is acceptable to the Managing Underwriter.
9.2 REGISTRATION PROCEDURES. If and whenever
Resources is required to use its best efforts or cause the
registration of any Resources Shares under the Securities Act as
provided in Section 9.1, Resources will, as expeditiously as
possible:
(a) prepare and file with the Commission (which
term shall include any similar or successor authority
under the Securities Act as at the time in effect) a
registration statement with respect to such Resources
Shares and use its best efforts to cause such
registration statement to become effective;
(b) prepare and file with the Commission such
amendments to such registration statement and
supplements to the prospectus relating thereto as may
be necessary to keep such registration statement
effective and such prospectus current for a period of
up to ninety (90) days, and to comply with the
provisions of the Securities Act with respect to the
disposition of all Resources Shares covered by such
registration statement during such period, as may be
necessary to effect the disposition of all Resources
Shares covered by such registration statement in
accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such
registration statement as of the date it became
effective, provided that, if the seller or sellers
determine to effect disposition of such Resources
Shares in a manner different from the methods set forth
in such registration statement, the obligations of
Resources under this clause (b) shall include the
preparation and filing of such amendments and
supplements as may be necessary to effect such
different disposition, but such seller or sellers shall
be obligated to reimburse Resources for all of its
additional expenses (including accounting and legal
fees and printing expenses) incurred by reason of the
change in the manner of disposition of such Resources
Shares;
(c) keep the holders of all Resources Shares to
be included in such registration statement advised in
writing as to the initiation of proceedings for such
registration and compliance and as to the completion
thereof, and advise any such holder, upon request, of
the progress of such proceedings;
(d) furnish to each seller of such Resources
Shares such number of copies of such registration
statement and of each such amendment thereto (in each
case including a sufficient number of exhibits as may
be required to furnish one set thereof to each managing
underwriter and to special counsel to the underwriters
of such offering), such number of copies of the
prospectus included in such registration statement and
amendment (including each preliminary prospectus) and
of each supplement to the prospectus, and such other
documents, as such seller may reasonably request in
order to facilitate the disposition of the Resources
Shares owned by such seller;
(e) use its best efforts to register or qualify
such Resources Shares included in such registration
statement under such laws regulating the offer and sale
of securities (blue sky laws) of such jurisdictions as
each seller shall reasonably request, and do any and
all other acts and things which may be reasonably
necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the
Resources Shares owned by such seller, except that
Resources shall not for any purpose be required to
qualify Resources Shares in any jurisdiction if to do
so would require Resources to qualify to do business as
a foreign corporation in any jurisdiction in which it
is not so qualified, or subject itself to taxation in
any jurisdiction in which it is not so subject, or to
consent to service of process in such jurisdiction in
connection with matters unrelated to the sale of
securities, it being understood that the filing of a
Uniform Consent to Service of Process on Form U-2 (or
any successor uniform form then in effect) in any
jurisdiction does not involve a consent to service of
process in connection with matters unrelated to the
sale of the securities;
(f) notify each seller of any Resources Shares
included in such registration statement, at any time
during the period when a prospectus relating thereto is
required to be delivered under the Securities Act or
under the Exchange Act within the appropriate period
mentioned in subdivision (b) of this Section 9.2, of
the happening of any event as a result of which the
prospectus as then amended and supplemented relating to
such registration statement, as then in effect,
includes an untrue statement of a material fact or
omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading in light of the circumstances then existing,
and at the request of any such seller prepare and
furnish to such seller a reasonable number of copies of
an amended prospectus or supplement to such prospectus
as may be necessary so that, as thereafter delivered to
the purchasers of such Resources Shares, such
prospectus shall 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 not misleading in light of the
circumstances then existing; and
(g) if the Resources Shares to be included in
such registration statement are to be disposed of in an
underwritten offering, execute and deliver an
underwriting agreement which contains representations,
warranties, indemnities and covenants of Resources of a
type customarily made under similar circumstances by
organizations of a type and size comparable to
Resources and which shall be reasonably satisfactory to
Resources and its counsel.
9.3 REGISTRATION EXPENSES. Resources shall bear all
registration and filing fees, fees and expenses of complying with
applicable securities or blue sky laws (including fees of blue
sky counsel who may be counsel for the seller or sellers or their
underwriters), printing expenses, and the fees and disbursements
of counsel for Resources, and of its independent public
accountants. Sellers of Resources Shares issued in the Merger
shall bear the fees and disbursements of their counsel and any
underwriting commissions or discounts or fees paid to broker-
dealers.
9.4 INDEMNIFICATION.
(a) In the event of any registration of any
Resources Shares under the Securities Act pursuant to
Section 9.1, Resources will indemnify and hold harmless
the seller of such Resources Shares and each
underwriter of such Resources Shares and each other
person, if any, who controls such seller or underwriter
within the meaning of the Securities Act, against any
losses, claims, damages or liabilities, joint or
several, to which such seller or underwriter or
controlling person may become subject under the
Securities Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon (i) any untrue
statement or alleged untrue statement of any material
fact contained in any registration statement under
which such Resources Shares were registered under the
Securities Act, any preliminary prospectus or final
prospectus contained therein, or any such final
prospectus as amended or supplemented, (ii) 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, or (iii) any violation by Resources of the
Securities Act or the Exchange Act with respect to
action or inaction required of Resources in connection
with the offer or sale of Resources Shares included in
a registration statement filed under the Securities
Act; and Resources will reimburse such seller and each
such underwriter and each such controlling person for
any legal or any other expenses reasonably incurred by
them in connection with investigating or defending any
such loss, claim, damage, liability or action, provided
that Resources shall not be liable in any such case to
the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or
alleged omission made in such registration statement,
any such preliminary prospectus, final prospectus, or
amended or supplemented final prospectus in reliance
upon and in conformity with written information
furnished to Resources through an instrument duly
executed by such seller, underwriter or controlling
person specifically for use in the preparation thereof.
(b) Resources may require, as a condition to
including any Resources Shares issued in the Merger in
any registration statement, that Resources shall have
received undertakings satisfactory to it from the
prospective seller and underwriters, if any, of such
Resources Shares, to indemnify and hold harmless (in
the manner and to the same extent as set forth in
subdivision (a) of this Section 9.4) Resources, each
director of Resources, each officer of Resources who
shall sign such registration statement and any person
who controls Resources within the meaning of the
Securities Act, with respect to any statement or
omission made in such registration statement, any
preliminary prospectus or final prospectus contained
therein, or any such final prospectus as amended or
supplemented, if such statement or omission was made in
reliance upon and in conformity with written
information furnished to Resources through instruments
duly executed by such seller or underwriters,
respectively, specifically for use in the preparation
of such registration statement, preliminary prospectus,
final prospectus, or final prospectus as amended or
supplemented.
(c) Promptly after receipt by an indemnified
party of notice of the commencement of any action
involving a claim referred to in the preceding
paragraphs of this Article IX, such indemnified party
will, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to
the latter of the commencement of such action, provided
that the failure of any indemnified party to give
notice as provided herein shall not relieve the
indemnifying party of its obligations other than under
the preceding paragraphs of this Article IX. In case
any such action is brought against an indemnified
party, the indemnifying party will be entitled to
participate in and to assume the defense thereof,
jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such
indemnified party of its election so to assume the
defense thereof, the indemnifying party will not be
liable to such indemnified party for any legal or other
expenses subsequently incurred by the latter in
connection with the defense thereof. No indemnifying
party, in the defense of any such claim or litigation,
shall, except with the consent of each indemnified
party, consent to entry of any judgment or enter into
any settlement which does not include as an
unconditional term thereof the giving by the claimant
or plaintiff to such indemnified party of a release
from all liability in respect to such claim or
litigation.
ARTICLE X
TERMINATION PRIOR TO CLOSING
10.1 TERMINATION OF AGREEMENT. This Agreement may be
terminated at any time prior to the Closing:
(a) By the mutual written consent of Resources
and the Company;
(b) By Resources or the Company in writing if the
Closing shall not have occurred on or before November
30, 1995, or such other date to which the Agreement has
been extended by agreement of the parties; or
(c) By either the Company and the Principals on
the one hand or Resources on the other hand, if the
other party shall (i) fail to perform any of its
agreements contained herein required to be performed
prior to the Closing Date, or (ii) breach any of its
representations, warranties, covenants or agreements
contained herein, which failure or breach is not cured
within five (5) days after the party seeking to
terminate has notified the other party in writing of
its intent to terminate this Agreement pursuant to this
clause.
10.2 TERMINATION OF OBLIGATIONS. Termination of this
Agreement pursuant to this Article IX shall terminate all
obligations of the parties hereunder, except for the obligations
under Sections 4.4, 5.2 and 11.6.
ARTICLE XI
MISCELLANEOUS
11.1 ENTIRE AGREEMENT. This Agreement (including the
Merger Agreement, Disclosure Letter and Exhibits hereto)
constitutes the sole understanding of the parties with respect to
the subject matter hereof. This agreement supersedes and
replaces any and all prior agreements, understandings and
representations, written and oral. No amendment, modification or
alteration of the terms or provisions of this Agreement shall be
binding unless the same shall be in writing and duly executed by
the parties hereto.
11.2 SUCCESSOR AND ASSIGNS. The terms and conditions
of this Agreement shall inure to the benefit of and be binding
upon the respective successors of the parties hereto; provided,
however, that this Agreement may not be assigned by any party
without the prior written consent of the other parties hereto.
11.3 COUNTERPARTS. This Agreement may be executed in
one or more counterparts, each of which shall for all purposes be
deemed to be an original and all of which shall constitute the
same instrument.
11.4 HEADINGS. The headings of the Sections and
Articles of this Agreement are inserted for convenience only and
shall not be deemed to constitute part of this Agreement or to
affect the construction hereof.
11.5 NO WAIVER. No action taken pursuant to this
Agreement, including any investigation by or on behalf of any
party hereto, will be deemed to constitute a waiver by the party
taking any action of compliance with any representation, warranty
or agreement contained herein. The waiver by any party hereto of
any condition or of a breach of any other provision of this
Agreement will not operate or be construed as a waiver of any
other condition or subsequent breach. The waiver by any party of
any of the conditions precedent to its obligations under the
Agreement will not preclude it from seeking redress for breach of
this Agreement other than with respect to the condition so
waived.
11.6 EXPENSES. Except as provided otherwise in
Section 4.10, the Principals and the Company, on the one hand,
and Resources, on the other hand, shall each pay all costs and
expenses incurred by them or on their behalf, in connection with
this Agreement and the transactions contemplated hereby, whether
or not the Merger is consummated. If this Agreement is
terminated pursuant to Section 10.1(c) and such termination is
the result of any willful breach of any representation, warranty,
covenant or agreement contained herein, then the breaching party
shall, upon written demand by the non-breaching party, pay the
actual out-of-pocket costs and expenses paid or payable by the
non-breaching party in connection with the transactions
contemplated by this Agreement.
11.7 NOTICES. Any notice, request, instruction or
other document to be given hereunder by any party hereto to any
other party hereto shall be in writing and delivered personally
or sent by registered or certified mail, postage prepaid:
If to Company to:
Miller Pipeline Corporation
8850 Crawfordsville Road
P.O. Box 34141
Indianapolis, Indiana 46234
If to the Principals to:
Dale R. Miller
27 Stoneybrook Drive
Brownsburg, Indiana 46112
Don W. Miller
4704 Southwest Bermuda Way
Palm City, Florida 34990
Karl D. Miller
13809 Springmill Road
Carmel, Indiana 46032
with a copy to:
Barnes & Thornburg
1313 Merchants Bank Building
11 South Meridian Street
Indianapolis, Indiana 46204
Attention: William R. Coffey, Esq.
If to Resources to:
IWC Resources Corporation
1220 Waterway Boulevard
Indianapolis, Indiana 46202
Attention: J.A. Rosenfeld
with a copy to:
Baker & Daniels
300 North Meridian Street
Suite 2700
Indianapolis, Indiana 46204
Attention: David C. Worrell, Esq.
11.8 FURTHER ASSURANCES. From and after the Closing
Date, each party, at the request of the other party and at the
requesting party's expense, will each take all such action and
deliver all such documents as shall be reasonably necessary or
appropriate to consummate the transactions contemplated by this
Agreement and to permit the parties to enjoy the benefits
contemplated by this Agreement.
11.9 GOVERNING LAW. The validity, performance and
enforcement of this Agreement and any agreement entered into
pursuant hereto, unless expressly provided to the contrary, will
be governed by the laws of Indiana, without giving effect to the
principles of conflicts of law thereof.
11.10 CONSENT TO JURISDICTION. Each of Resources,
NewCo, the Company and the Principals consents and submits to
jurisdiction and venue in any court situated in Marion County,
Indiana, for all purposes of this Agreement and any ancillary
document to which it is a party, including, without limitation,
any action or proceeding instituted for the enforcement of any
right, remedy, obligation or liability arising under or by reason
hereof and thereof.
11.11 SPECIFIC PERFORMANCE. Resources on the one
hand, and the Principals and the Company, on the other hand,
acknowledge that the other will be irreparably harmed and that
there will be no adequate remedy at law in the event of a
violation by it of any of its covenants or agreements which are
contained in this Agreement. It is accordingly agreed that, in
addition to any other remedies which may be available upon the
breach of such covenants and agreements, the Principals or
Resources, as the case may be, shall have the right to obtain
injunctive relief to restrain any breach or threatened breach of,
or otherwise to obtain specific performance of, the other's
covenants or agreements contained in this Agreement.
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<PAGE>
IN WITNESS WHEREOF each of the parties hereto has
caused this Agreement to be duly executed on its behalf as of the
date first above written.
MILLER PIPELINE CORPORATION
By: /S/ DON W. MILLER
Printed: DON W. MILLER
Title: CHAIRMAN OF THE BOARD
IWC RESOURCES CORPORATION
By: /S/ J.A. ROSENFELD
Printed: J.A. ROSENFELD
Title: EXECUTIVE VICE PRESIDENT
PIPELINE ACQUISITION CORP.
By: /S/ J.A. ROSENFELD
Printed: J.A. ROSENFELD
Title: PRESIDENT
DALE R. MILLER
/S/ DALE R. MILLER
DON W. MILLER
/S/ DON W. MILLER
KARL D. MILLER
/S/ KARL D. MILLER
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<PAGE>
EXHIBIT A
PLAN AND AGREEMENT OF MERGER
THIS PLAN AND AGREEMENT OF MERGER (this "Merger
Agreement") is made as of August ____, 1995 by and among IWC
Resources Corporation, an Indiana corporation ("Resources"),
Pipeline Acquisition Corp., an Indiana corporation and wholly-
owned subsidiary of Resources ("NewCo"), and Miller Pipeline
Corporation, an Ohio corporation (the "Company").
WHEREAS, Resources, NewCo, the Company and certain
holders of the common stock of the Company have entered into a
Reorganization, dated as of the 21st day of July, 1995 (the
"Agreement") relating to the merger of the Company with and into
NewCo (the "Merger"); and
WHEREAS, Resources, NewCo and the Company desire to set
forth the terms and conditions of the Merger;
NOW, THEREFORE, in consideration of the foregoing and
of the mutual covenants and agreements contained herein, the
parties hereto agree as follows:
ARTICLE I
1.01 CONSTITUENT CORPORATIONS AND SURVIVING
CORPORATION. NewCo and the Company shall be the constituent
corporations to the Merger. At the Effective Time (as
hereinafter defined), the Company shall be merged with and into
NewCo, which shall be the surviving corporation of the Merger
(the "Surviving Corporation"). At the Effective Time, the
identity and separate existence of the Company shall cease and
all of the rights, privileges, powers, franchises, properties and
assets of the Company shall be vested in NewCo in accordance with
the provisions of the Indiana Business Corporation Law and the
Ohio General Corporation Law. At the Effective Time, the name of
the Surviving Corporation shall be changed to Miller Pipeline
Corporation.
1.02 EFFECTIVE TIME. The date and time when the
Merger becomes effective are herein referred to as the "Effective
Time." The Effective Time shall be the time stated in the
Articles of Merger to be filed with the Secretary of State of
Indiana and the Certificate of Merger to be filed with the
Secretary of State of Ohio with respect to the Merger.
ARTICLE II
2.01 ARTICLES OF INCORPORATION. The Articles of
Incorporation of NewCo as in effect immediately prior to the
Effective Time, but as amended in the manner set forth in Section
5.01 below, shall thereafter be the Articles of Incorporation of
the Surviving Corporation until amended in accordance with
Indiana law.
2.02 BY-LAWS. The By-Laws of NewCo, as in effect
immediately prior to the Effective Time, but as amended to
reflect the change of name of NewCo, shall be the By-Laws of the
Surviving Corporation, until amended or repealed.
2.03 OFFICERS. The following persons shall hold the
offices indicated opposite their name and be the officers of the
Surviving Corporation from and after the Effective Time, each to
hold office in accordance with the Articles of Incorporation and
By-Laws of the Surviving Corporation:
Don W. Miller Chairman of the Board
of Directors
Dale R. Miller President and Chief Operating
Officer
David D. Watters Senior Vice President
Henry Topf, Jr. Vice President
E. Paul Miller Vice President
Douglas S. Banning, Jr. Secretary and Treasurer
2.04 DIRECTORS. The directors of the Surviving
Corporation from and after the Effective Time, each to serve
until his successor shall have been duly elected and qualified in
accordance with the Articles of Incorporation and By-Laws of the
Surviving Corporation, shall be the following persons: Douglas S.
Banning, Jr., Joseph R. Broyles, James T. Morris, Dale R. Miller,
Don W. Miller and J. A. Rosenfeld.
ARTICLE III
3.01 CONVERSION OF COMPANY COMMON STOCK. Subject to
the exercise of dissenters' rights as provided by Article IV
hereof, at the Effective Time, each of the issued and outstanding
whole shares of common stock of the Company (the "Company Common
Stock"), by virtue of the Merger and without any action on the
part of the holder thereof, automatically shall be converted into
and become the right to receive from the Surviving Corporation,
without interest:
(a) cash in the amount equal to the Purchase
Price (as defined in the Agreement) divided by the
number of shares of Company Common Stock issued and
outstanding as of the Effective Time (the "Per Share
Cash Consideration") or
(b) the number of shares of Common Stock, without
par value, of Resources ("Resources Shares") (including
any fraction of a share) equal to the Per Share Cash
Consideration divided by the average of the means of
the high and low sale prices per share as reported on
the NASDAQ National Market System and reported in THE
WALL STREET JOURNAL for the twenty (20) trading days
ending two (2) trading days prior to the Closing Date
(the "Per Share Stock Consideration"), or
(c) a combination thereof,
as the holder thereof shall elect or be deemed to have elected,
subject to and as provided in Sections 3.02 and 3.03 below (the
"Per Share Merger Consideration").
3.02 ELECTION PROCEDURES. The Company will cause to
be sent to all shareholders of the Company along with the proxy
statement relating to the meeting at which the Merger shall be
submitted to a vote of Company shareholders, an election form
(the "Election Form"). The Election Form will allow each such
holder (i) to elect to receive Resources Shares with respect to
all or part of such holder's Company Common Stock (the "Stock
Election Shares"), (ii) to elect to receive cash with respect to
all or part of such holder's Company Common Stock (the "Cash
Election Shares"), or (iii) to indicate no election (the "No-
Election Shares"). Any shares of Company Common Stock as to
which an Election Form has not been completed on or before the
date of the meeting of the Company shareholders shall be deemed
to be No-Election Shares.
3.03 ALLOCATION OF SHARES AND CASH. The parties
hereto intend for the Merger to qualify as a tax-free
reorganization within the meaning of Sections 368(a)(1)(A) and
368(a)(2)(D) and related sections of the Internal Revenue Code of
1986, as amended. As soon as practicable but in any event no
later than two (2) days prior to the Closing Date, the Company
shall effectuate the allocation among holders of Company Common
Stock of rights to receive Resources Shares or cash in the Merger
as follows:
(a) If the number of Stock Election Shares times
the Per Share Cash Consideration is less than Thirteen
Million Five Hundred Thousand Dollars ($13,500,000)
(the "Minimum Amount"), then
(i) all Stock Election Shares will be converted
into the right to receive Resources Shares as provided
in Section 3.01(b) above,
(ii) the Company will assign on a pro rata basis
first to the No-Election Shares until the No-Election
Shares are exhausted and, if insufficient, then on a
pro rata basis to the Cash Election Shares, the status
of Stock Election Shares (the "Forced Stock Shares"),
such that the sum of the Forced Stock Shares and Stock
Election Shares, multiplied by the Per Share Cash
Consideration will equal, as close as possible, and in
any event will not be less than the Minimum Amount and,
in that event, all Forced Stock Shares, for purposes of
this Agreement, will be deemed to be Stock Election
Shares and will be converted into the right to receive
Resources Shares as provided in Section 3.01(b) above,
and
(iii) the remainder of the No-Election Shares and
Cash Election Shares not otherwise assigned the status
of Forced Stock Shares will be converted into the right
to receive cash as provided in Section 3.01(a) above.
(b) If the number of Stock Election Shares times
the Per Share Cash Consideration is greater than
Fifteen Million Dollars ($15,000,000) (the "Maximum
Amount"), then
(i) all Cash Election Shares will be converted
into the right to receive cash as provided in Section
3.01(a) above,
(ii) the Company will assign on a pro rata basis
first to the No-Election Shares until the No-Election
Shares are exhausted and, if insufficient, then on a
pro rata basis to the Stock Election Shares, the status
of Cash Election Shares (the "Forced Cash Shares"),
such that the sum of the remaining Stock Election
Shares and No-Election Shares not deemed to be Forced
Cash Shares, in all situations multiplied by the Per
Share Cash Consideration will equal, as close as
possible, and, in any event, not be more than the
Maximum Amount and, in that event, all Forced Cash
Shares, for purposes of this Agreement, will be deemed
to be Cash Election Shares and will be converted into
the right to receive cash as provided in Section
3.01(a) above, and
(iii) the remainder of the No-Election Shares and
the Stock Election Shares not otherwise assigned the
status of Forced Cash Shares will be converted into the
right to receive Resources Shares as provided in
Section 3.01(b) above.
(c) If the number of Stock Election Shares times
the Per Share Cash Consideration is equal to or greater
than the Minimum Amount and less than or equal to the
Maximum Amount, then
(i) all Stock Election Shares will be converted
into the right to receive Resources Shares as provided
in Section 3.01(b) above,
(ii) all Cash Election Shares will be converted
into the right to receive cash as provided in Section
3.01(a) above, and
(iii) all No-Election Shares will be converted
into the right to receive cash as provided in Section
3.01(a) above.
(d) Notwithstanding subsections (a) and (c)
above, the Company shall retain the right to assign on
a pro rata basis additional No-Election Shares and, if
necessary, Cash Election Shares to the status of Stock
Election Shares if the opinion of KPMG Peat Marwick
contemplated by Sections 6.12 and 7.7 of the Agreement
would not otherwise be issued.
3.04 SURRENDER OF CERTIFICATES. After the Effective
Time and upon surrender to Resources of the certificates formerly
representing shares of Company Common Stock converted in the
Merger, Resources shall promptly deliver to the former holder of
Company Common Stock (a "former shareholder") entitled thereto
the Per Share Merger Consideration for such surrendered shares.
No fractional shares of Resources Common Stock shall be issued,
and the total number of shares of Resources Common Stock issued
to each former shareholder shall be rounded to the nearest whole
share. Following such surrender the certificates formerly
representing shares of Company Common Stock shall be cancelled.
3.05 SHARES HELD IN COMPANY TREASURY. At the
Effective Time, all shares of capital stock of the Company held
in the treasury of the Company, if any, shall be cancelled,
without any payment or other distribution in respect thereof.
3.06 NO CONVERSION OF NEWCO STOCK. None of the issued
and outstanding shares of NewCo's capital stock shall be
converted or otherwise affected by the Merger, and at and after
the Effective Time, all of such shares shall remain issued and
outstanding shares of capital stock of the Surviving Corporation.
ARTICLE IV
4.01 DISSENTERS' RIGHTS. The parties hereto will
comply with their respective duties under Sections 1701.84 and
1701.85 of the Ohio General Corporation Law governing the
exercise of dissenters' rights by holders of Company Common
Stock.
ARTICLE V
5.01 AMENDMENT TO ARTICLES OF INCORPORATION OF
SURVIVING CORPORATION. At the Effective Time, the Articles of
Incorporation of the Surviving Corporation shall be amended by
amending Article I to read in its entirety as follows:
"ARTICLE I
Name
The name of the Corporation is Miller Pipeline
Corporation."
ARTICLE VI
6.01 COUNTERPARTS. This Merger Agreement may be
executed in one or more counterparts, each of which shall be
deemed to be an original, but all of which together shall
constitute one agreement.
6.02 SECTION HEADINGS. The section headings in this
Merger Agreement have been inserted for convenience of reference
only and shall not affect the meaning or interpretation of this
Agreement.
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<PAGE>
IN WITNESS WHEREOF, the undersigned parties have duly
executed this Merger Agreement, as of the date first written
above.
MILLER PIPELINE CORPORATION
By: /S/ DALE R. MILLER
Printed: DALE R. MILLER
Title: PRESIDENT
IWC RESOURCES CORPORATION
By: /S/ J.A. ROSENFELD
Printed: J.A. ROSENFELD
Title: EXECUTIVE VICE PRESIDENT
PIPELINE ACQUISITION CORP.
By: /S/ J.A. ROSENFELD
Printed: J.A. ROSENFELD
Title: PRESIDENT
-1-
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 21st day of August,
1995, by and between Miller Pipeline Corporation, an Indiana
corporation ("Corporation") and a wholly owned subsidiary of IWC
Resources Corporation ("Resources"), and Don W. Miller, a
resident of Indiana ("Employee").
RECITALS
A. Employee has extensive business experience valuable
to the Corporation, and desires to provide services to the
Corporation upon the terms and conditions set forth in this
Agreement; and
B. The Corporation wishes to employ Employee upon the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the premises, the
mutual promises and agreements contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. CHAIRMAN OF THE BOARD OF DIRECTORS. The Corporation
hereby employs Employee as Chairman of the Board of Directors,
and Employee hereby agrees to serve the Corporation in such
capacities, upon the terms and conditions hereinafter set forth.
2. TERM. The term of Employee's employment under this
Agreement shall be for an initial term of one (1) year commencing
as of the date of this Agreement. This Agreement shall
automatically renew for successive one (1) year periods after the
Initial Term, but may be terminated at the end of the Initial
Term or any renewal term by either the Corporation or Employee
with prior written notice by the terminating party delivered to
the other at least ninety (90) days before the end of the Initial
Term or any renewal term as the case may be.
3. COMPENSATION. Employee shall be compensated as
follows:
(a) The base salary each year of the Initial Term shall
be $25,000 and shall be paid in equal installments for the
same periods and on the same dates that the Corporation uses
for its other employees.
(b) Employee shall be eligible to receive bonus
compensation as determined by the Corporation's Board of
Directors in its sole discretion.
4. BENEFITS.
(a) Employee shall be entitled to participate in all
life, health or hospitalization insurance programs, or any
other benefit plan or program, upon the terms and conditions
of such programs, which the Corporation may from time to time
provide or make available to other executives of the
Corporation generally. In addition, upon the retirement of
Employee from the Corporation, Employee shall be entitled to
participate in any post-retirement health and hospitalization
benefit program then available to the senior executives of
Resources for as long as the Corporation remains a subsidiary
of Resources.
(b) Employee shall be reimbursed for any reasonable out-
of-pocket expenses and travel expenses incurred by him in
connection with the performance of the Corporation's business,
in accordance with reasonable policies that may be established
by the Corporation's Board of Directors from time to time
applicable to reimbursement of expenses. The Corporation
shall provide Employee with the use of a suitable automobile
for business purposes.
(c) Employee shall be entitled to vacations of such time
or times as Employee shall select, subject to the condition
that it shall be taken at a time when his absence will not
impair the Corporation's normal business functions.
(d) The right of Employee to indemnification for
liability incurred as a result of his service as an officer or
director of the Corporation pursuant to the Articles of
Incorporation or By-Laws of the Corporation shall not be
materially less than the indemnification rights available to
officers and directors of IWC Resources Corporation pursuant
to its Articles of Incorporation and By-Laws.
(e) Corporation shall provide Employee with office space
and secretarial or similar support reasonably satisfactory to
Employee.
5. TITLE, SERVICES AND DUTIES.
(a) Employee is hereby employed to perform the services
of Chairman of the Board of Directors and discharge the duties
necessary and appropriate thereto.
(b) Employee's responsibilities shall include those
matters typically performed by a chairman of the board, and
such other executive level duties as may be requested of him
from time to time by the Board of Directors.
6. TERMINATION. In addition to the provisions of
paragraph 2, the Corporation may terminate this Agreement as
follows:
(a) Immediately for fraud, dishonesty, gross misconduct
or similar conduct;
(b) Immediately upon Employee's death;
(c) Upon mutual agreement by the Corporation and
Employee; and
(d) In accordance with the provisions of paragraph 2.
Employee may terminate this Agreement for any reason upon 30 days
written notice to the Corporation.
7. SEVERANCE BENEFITS. Upon termination, the
Corporation shall pay the base salary then in effect through the
date of termination and have no obligation to pay Employee any
further salary or severance benefits under this Agreement;
provided, however, that Employee shall be entitled to any
benefits payable under the terms of any benefit plans of the
Corporation or Resources in which Employee participates.
8. SEVERABILITY. In case any one or more of the
provisions contained herein shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect, such provisions
shall be modified or deleted in such a manner so as to make this
Agreement as modified legal and enforceable to the fullest extent
permitted under applicable law.
9. PARTIES BOUND. All provisions of this Agreement
shall inure to the benefit of and be binding upon the parties
hereto, their heirs, personal representatives, successors and
assigns.
10. EFFECT AND MODIFICATION. This Agreement comprises
the entire agreement between the parties with respect to the
subject matter hereof and supersedes all earlier agreements
relating to the subject matter hereof. No statement or promise,
except as herein set forth, has been made with respect to the
subject matter of this Agreement. The headings of the individual
paragraphs herein are for convenience only and shall not be
deemed to be a substantive part of this Agreement. No
modification or amendment hereof shall be effective unless in
writing and signed by Employee and an officer of the Corporation
(other than Employee).
11. NON-WAIVER. The Corporation's or Employee's failure
or refusal to enforce all or any part of, or the Corporation's or
Employee's waiver of any breach of this Agreement, shall not be a
waiver of the Corporation's or Employee's continuing or
subsequent rights under this Agreement, nor shall such failure or
refusal or waiver have any effect upon the subsequent
enforceability of this Agreement.
12. ASSIGNABILITY. This Agreement may be assigned
without the consent of Employee by the Corporation to any of its
affiliates which continues the business theretofore conducted by
the Corporation. Except as provided above, this Agreement may
not be assigned by either party, whether by operation of law or
otherwise, in whole or in part, without the prior written consent
of the other party.
13. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall constitute one and the
same Agreement.
14. GOVERNING LAW. This Agreement shall be governed by
the internal laws of the State of Indiana.
15. NOTICE. Any notice, request, instruction or other
document to be given hereunder to any party shall be in writing
and delivered by hand, telegram, registered or certified United
States mail, return receipt requested, or other form of receipted
delivery, with all expenses of delivery prepaid, as follows:
If to Employee: Don W. Miller
4704 Southwest Bermuda Way
Palm City Florida, 34990
If to the Corporation: Miller Pipeline Corporation
1220 Waterway Boulevard
Indianapolis, Indiana 46202
Attention: Board of Directors
and to such other addresses or to such other parties as either
the Corporation or Employee may designate by giving notice to the
other.
-1-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
"Employee"
/S/ DON W. MILLER
Don W. Miller
"Corporation"
MILLER PIPELINE CORPORATION
By /S/ DOUGLAS S. BANNING, JR.
Name: Douglas S. Banning, Jr.
Title: Secretary/Treasurer
-1-
EMPLOYMENT AGREEMENT
THIS AGREEMENT is made as of the 21st day of August,
1995, by and between Miller Pipeline Corporation, an Indiana
corporation ("Corporation") and a wholly owned subsidiary of IWC
Resources Corporation ("Resources"), and Dale R. Miller, a
resident of Indiana ("Employee").
RECITALS
A. Employee has extensive business experience valuable
to the Corporation, and desires to provide services to the
Corporation upon the terms and conditions set forth in this
Agreement;
B. The Corporation wishes to employ Employee upon the
terms and conditions set forth in this Agreement; and
C. The Corporation currently engages in the business of
installing, repairing and retrofitting underground pipelines and
selling pipeline-related products and related businesses, with
respect to which the Corporation has developed and expects to
develop certain Confidential Information (as defined herein)
which the Corporation desires and intends to protect.
NOW, THEREFORE, in consideration of the premises, the
mutual promises and agreements contained herein, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties agree as follows:
AGREEMENT
1. PRESIDENT AND CHIEF OPERATING OFFICER. The
Corporation hereby employs Employee as President and Chief
Operating Officer for the Corporation, and Employee hereby agrees
to serve the Corporation in such capacities, upon the terms and
conditions hereinafter set forth.
2. TERM. The term of Employee's employment under this
Agreement shall be for an initial term of five years commencing
as of the date of this Agreement. This Agreement shall
automatically renew for successive one (1) year periods after the
Initial Term, but may be terminated at the end of the Initial
Term or any renewal term by either the Corporation or Employee
with prior written notice by the terminating party delivered to
the other at least ninety (90) days before the end of the Initial
Term or any renewal term as the case may be.
3. COMPENSATION. Employee shall be compensated as
follows:
(a) The base salary each year of the Initial Term shall
be $190,000 and shall be paid in equal installments for the
same periods and on the same dates that the Corporation uses
for its other employees.
(b) Employee shall be eligible to receive bonus
compensation as determined by the Corporation's Board of
Directors in its sole discretion.
4. BENEFITS.
(a) Employee shall be entitled to participate in all
life, health or hospitalization insurance programs, or any
other benefit plan or program, upon the terms and conditions
of such programs, which the Corporation may from time to time
provide or make available to other executives of the
Corporation. In addition, upon the retirement of Employee
from the Corporation, Employee shall be entitled to
participate in any post-retirement health and hospitalization
benefit program then available to the senior executives of
Resources for as long as the Corporation remains a subsidiary
of Resources.
(b) Employee shall be reimbursed for any reasonable out-
of-pocket expenses and travel expenses incurred by him in
connection with the performance of the Corporation's business,
in accordance with reasonable policies that may be established
by the Corporation's Board of Directors from time to time
applicable to reimbursement of expenses.
(c) The Corporation shall continue to provide Employee
with the use of a suitable automobile for business purposes on
terms consistent with the past practice of the Corporation
prior to its acquisition by Resources.
(d) Employee shall be entitled to an annual vacation of
up to five (5) weeks per year. Vacation may be taken at such
time or times as Employee shall select, subject to the
condition that it shall be taken at a time when his absence
will not impair the Corporation's normal business functions.
In no event shall Employee take more than two weeks vacation
in any 30-day period without the prior consent of the
Corporation. Unused vacation shall lapse at the end of each
anniversary year, unless Employee is unable to use such
vacation time because of requirements of the Corporation, in
which event the Corporation shall permit the vacation to
accumulate and to be taken in a succeeding year or years or
shall reimburse Employee for such unused vacation days at his
then applicable salary.
(e) The right of Employee to indemnification for
liability incurred as a result of his service as an officer or
director of the Corporation pursuant to the Articles of
Incorporation or By-Laws of the Corporation shall not be
materially less than the indemnification rights available to
officers and directors of Resources pursuant to its Articles
of Incorporation and By-Laws.
(f) Corporation shall provide Employee with office space
and secretarial or similar support reasonably satisfactory to
Employee.
(g) Employee shall also be eligible to participate in
the Resources Restricted Stock Plan for as long as the
Corporation is a subsidiary of Resources.
5. TITLE, SERVICES AND DUTIES.
(a) Employee is hereby employed to perform the services
of President and Chief Operating Officer and discharge the
duties necessary and appropriate thereto.
(b) Employee's responsibilities shall include those
matters typically performed by a chief operating officer,
including responsibility for the day-to-day operations of the
Corporation, and such other executive level duties as may be
assigned to him from time to time by the Board of Directors.
(c) Employee accepts the employment specified above and,
during such employment, shall devote his full business time,
attention, energy and skill to the business of the
Corporation. This shall not preclude Employee from serving as
a director of any other corporation which does not compete
with the Corporation or from investing his assets in such form
or manner as will not require his services in the operation of
the affairs of the companies in which such investments are
made or from devoting reasonable time to the affairs of
charitable or civic organizations.
(d) Employee shall not be required to relocate outside
of the Indianapolis metropolitan area without his consent.
6. COVENANT NOT TO COMPETE AND NOT TO DISCLOSE
CONFIDENTIAL INFORMATION. Employee hereby acknowledges that by
virtue of his position as President and Chief Operating Officer,
and his employment hereunder, he will have advantageous
familiarity with and knowledge about the Corporation's
Confidential Information (as defined below). Therefore, Employee
agrees as follows:
(a) During Employee's employment by the Corporation and
for a period of five (5) years thereafter, regardless of the
reason or method of termination, Employee will not
(i) engage (either directly or indirectly, as
shareholder, partner, officer, director, consultant,
employee or otherwise) in a business competitive with
that of the Corporation within any geographical territory
within which the Corporation has done business during the
last twelve (12) months of his employment;
(ii) solicit, take away, hire, employ or endeavor
to employ any of the employees of the Corporation or any
persons who were employees of the Corporation within the
six (6) months prior to termination of Employee's
employment; or
(iii) lend money, guarantee loans, make gifts of
money or other property, or otherwise lend financial or
other assistance in any form to any person, firm,
association, partnership, venture, corporation or other
business entity who is engaged or will within the above
period engage in any of the activities prohibited by the
foregoing paragraphs (i) and (ii) of this paragraph.
For purposes of this Agreement, a "business
competitive with that of the Corporation" shall mean
installing, repairing and retrofitting underground pipelines,
selling pipeline-related products and any other business
engaged in by the Corporation within the twelve (12) months
immediately preceding termination of Employee's employment.
(b) Employee agrees that information obtained by him
regarding the sources of supply, processes, "know-how,"
merchandising methods, trade information, trade secrets,
inventions, customer lists, confidential information relating
to customers and customer requirements and all other
confidential information regarding the affairs of the
Corporation which comes to his attention by reason of his
employment, including records of the foregoing ("Confidential
Information") will be received by him in confidence, and
agrees not to divulge any of such information to anyone except
in the performance of his duties to the Corporation or as
required by law. Employee agrees that all such records and
copies of records shall be the property of the Corporation and
agrees to keep such documents subject to the Corporation's
custody and control, and to surrender to the Corporation such
of those documents as are still in his possession at the
termination of his employment. Employee further agrees to
return to the Corporation at the Corporation's main office any
and all sales catalogs, brochures, samples, sample cases,
machinery, equipment and other sales aids, promptly upon
termination of his employment.
(c) Employee acknowledges that any violation of any
provision of this paragraph 6 by him will cause irreparable
damage to the Corporation, that such damages will be incapable
of precise measurement and that, as a result, the Corporation
will not have an adequate remedy at law to redress the harm
which such violations will cause. Therefore, in the event of
any violation of any provision of this paragraph 6 by
Employee, Employee agrees that the Corporation shall be
entitled to injunctive relief including, but not limited to,
temporary and/or permanent restraining orders to restrain any
violation of this paragraph 6 by Employee. Employee agrees to
and hereby does submit to jurisdiction before any state or
federal court of record in Marion County, Indiana, and
Employee hereby waives any right to raise the questions of
jurisdiction and venue in any action that may be brought in
any such court by the Corporation against Employee alleging a
violation of this paragraph 6.
7. KEY-MAN INSURANCE. The Corporation shall be
entitled, at its option and for its benefit, to carry insurance
on the life of Employee under such policies, with such insurers,
and in such amounts as the Corporation may determine. The
Corporation shall own the policy and shall have the sole right to
designate the beneficiary thereof, including naming itself.
Employee shall cooperate with the Corporation in all reasonable
respects necessary to cause the issuance of such policy,
including without limitation, submission to such physical
examinations and accurate completion of applications as the
insurer selected by the Corporation may require. If Employee so
requests, upon termination of Employee's employment with the
Corporation, the Corporation will cooperate with Employee to
permit transfer to Employee at Employee's sole cost of any
policies of insurance on the life of Employee owned by the
Corporation.
8. TERMINATION. In addition to the provisions of
paragraph 2, the Corporation may terminate this Agreement as
follows:
(a) Immediately for fraud, dishonesty, gross misconduct
or similar conduct;
(b) Upon 60 days written notice for cause, provided that
such notice specifies in reasonable detail the failure(s) of
Employee, and Employee does not correct such failures to the
reasonable satisfaction of the Board of Directors of the
Corporation within such 60 days period. For purposes of this
Agreement, "cause" shall exist if Employee shall fail to
perform in any material respect his obligations under this
Agreement;
(c) Upon ten (10) days' notice following Employee's
being disabled in such a manner that materially affects
Employee's ability to perform hereunder for a period of ninety
(90) out of any consecutive one hundred-twenty (120) day
period;
(d) Immediately upon Employee's death;
(e) Upon mutual agreement by the Corporation and
Employee;
(f) Immediately for material breach by Employee of the
covenants in paragraph 6 hereof; and
(g) In accordance with the provisions of paragraph 2.
Employee may terminate this Agreement for any reason upon 30 days
written notice to the Corporation.
9. SEVERANCE BENEFITS. Upon termination, the
Corporation shall pay the base salary then in effect through the
date of termination and have no obligation to pay Employee any
further salary or severance benefits under this Agreement;
provided, however, that Employee shall be entitled to any
benefits payable under the terms of any benefit plans of the
Corporation or Resources in which Employee participates.
10. SEVERABILITY. In case any one or more of the
provisions contained herein shall, for any reason, be held to be
invalid, illegal or unenforceable in any respect (including,
without limitation, the geographical and temporal restrictions
contained in paragraph 6 hereof), such provisions shall be
modified or deleted in such a manner so as to make this Agreement
as modified legal and enforceable to the fullest extent permitted
under applicable law.
11. PARTIES BOUND. All provisions of this Agreement
shall inure to the benefit of and be binding upon the parties
hereto, their heirs, personal representatives, successors and
assigns.
12. EFFECT AND MODIFICATION. This Agreement comprises
the entire agreement between the parties with respect to the
subject matter hereof and supersedes all earlier agreements
relating to the subject matter hereof. No statement or promise,
except as herein set forth, has been made with respect to the
subject matter of this Agreement. The headings of the individual
paragraphs herein are for convenience only and shall not be
deemed to be a substantive part of this Agreement. No
modification or amendment hereof shall be effective unless in
writing and signed by Employee and an officer of the Corporation
(other than Employee).
13. NON-WAIVER. The Corporation's or Employee's failure
or refusal to enforce all or any part of, or the Corporation's or
Employee's waiver of any breach of this Agreement, shall not be a
waiver of the Corporation's or Employee's continuing or
subsequent rights under this Agreement, nor shall such failure or
refusal or waiver have any effect upon the subsequent
enforceability of this Agreement.
14. ASSIGNABILITY. This Agreement may be assigned
without the consent of Employee by the Corporation to any of its
affiliates which continues the business theretofore conducted by
the Corporation. Except as provided above, this Agreement may
not be assigned by either party, whether by operation of law or
otherwise, in whole or in part, without the prior written consent
of the other party.
15. COUNTERPARTS. This Agreement may be executed in one
or more counterparts, each of which shall constitute one and the
same Agreement.
16. GOVERNING LAW. This Agreement shall be governed by
the internal laws of the State of Indiana.
17. NOTICE. Any notice, request, instruction or other
document to be given hereunder to any party shall be in writing
and delivered by hand, telegram, registered or certified United
States mail, return receipt requested, or other form of receipted
delivery, with all expenses of delivery prepaid, as follows:
If to Employee: Dale R. Miller
27 Stoneybrook Drive
Brownsburg, Indiana 46112
If to the Corporation: Miller Pipeline Corporation
1220 Waterway Boulevard
Indianapolis, Indiana 46202
Attention: Board of Directors
and to such other addresses or to such other parties as either
the Corporation or Employee may designate by giving notice to the
other.
-1-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed as of the day and year first above
written.
"Employee"
/S/ DALE R. MILLER
Dale R. Miller
"Corporation"
MILLER PIPELINE CORPORATION
By /S/ DOUGLAS S. BANNING, JR.
Name: Douglas S. Banning, Jr.
Title: Secretary/Treasurer
-1-
EXHIBIT 23
Consent of Independent Certified Public Accountants
We consent to incorporation by reference in the Registration
Statement No. 33-30221 on Form S-8 and Registration Statement No.
33-6406 on Form S-3 (originally on Form S-16) of IWC Resources
Corporation of our report dated May 19, 1995, relating to the
balance sheets of Miller Pipeline Corporation as of March 31,
1995 and 1994, and the related statements of earnings and
retained earnings and cash flows for the years then ended, which
report appears in the current report on Form 8-K of IWC Resources
Corporation.
/s/ KPMG Peat Marwick LLP
Indianapolis, Indiana
September 5, 1995
